Thursday, 3 October 2013

Cyber Bullying

A modern phenomenon that is increasingly prevalent in todays technologically sophisticated society is a nuanced form of harassment and intimidation known as cyber bullying.  It has lead directly to several teenage suicides and recently the suicide of a 12-year-old child.

Cyber bullying can be formally defined as the use of digital technology or technological devices (such as the Internet, mobile phones or online games by a person or group of persons) to threaten, harass or humiliate another person[1].

The typical forums currently used are Facebook, Twitter, Instagram, WhatsApp, BBM and a variety of blogs and Internet websites.  The victim is typically harassed over a period of time and very often feels helpless, depressed and altogether unhappy.  There are remedies available, some with little to no cost at all, others, which may involve a court application and cost significant amounts of money.

In South African law, Parliament recently promulgated the Protection from Harassment Act 17 of 2011 (“the PFHA Act”).  Its primary responsibility is to afford victims of harassment an effective remedy against such behavior.

In addition, in South African law, the Domestic Violence Act 116 of 1998 affords protection to a person harassed by a partner, girlfriend or spouse.  Accordingly, the legal framework allows any victim, in any situation, to apply to court to prevent or stop the abuse.  Court proceedings are, however, costly.  So, what can be done without recourse to the legal process?

For purposes of debate, lets assume harassment occurs across social media and internet blogs.
All social media platforms have mechanisms to report violations or breaches of the terms of use.  Facebook, for example, has a specific page to report violations.  Further, there is a “how-to” guide insofar as harassment is concerned.   One can even report a violation without holding an account.

Similarly, Google has a facility to remove content that is in breach of its terms of use.  A cursory Google search will reveal similar pages for all social media platforms and internet blog hosts.

In practice however, most of the methods above will fail unless there is an overt act or acts of harassment, or a plain breach of the terms of use.  In most situations, unfortunately, the harassment is nuanced and subtle which means that the likes of Facebook will not act, even when threatened via a legal letter of demand.

Where does that leave the victim of harassment?  How do I stop cyber bullying?

Firstly, it is always in all parties best interests to attempt to resolve these sorts of disputes amicably. This is often not possible, so the next step may be to formally request the person to stop the harassing and intimidating behavior. 

If discussion and a letter of demand have no effect, which is typically the case, the victim can apply to court on an urgent basis (and without having to serve papers on the accused) for interim relief in terms of the PFHA Act or the Domestic Violence Act, depending on the circumstances and relationship between the parties.

Both applications are similar, requiring the victim to make out a prima facie case showing the court that harassment has occurred and will likely continue occurring, which harassment will cause the victim harm – either emotional, physical or economic.

These matters are heard in camera, which essentially means behind closed doors and in a Magistrate’s chambers.  A Magistrate will consider the papers before him or her and usually ask the victim salient questions about the accused, the harassment and how it takes place.  Once satisfied, the court will grant an interim protection order on specific terms – e.g.: Mr. XYZ is prohibited from communicating with the Mrs. ABC via social media and Internet websites, either directly or indirectly.

The orders will differ depending on the harassment and usually specifically prohibit certain conduct.  As mentioned, this is done without notice to the accused but once the interim order is granted (or even if it is rejected), the court papers are taken to a police station and a member of the SAPS (or a relevant Sheriff of the court) serves the order (with the court papers) on the accused.

Thereafter, a further hearing will be scheduled (normally two weeks from the date the interim order is issued) where the accused has a chance to tell their side of the story and defend themselves if required. 

At this hearing, essentially, the court decides whether to make the order final or whether to dismiss it. If the harassment continues while the interim order is in effect, or continues after the order is made final, the victim can obtain an arrest warrant for the accused.

Think long and hard before going down this road.  It often only brings a pyrrhic victory.

[1] See: S Cassim, “Formulating adequate legislation to address cyber -bullying: Has the law kept pace with advancing technology?” 2013 SACJ 1.  Also, see:

Sunday, 8 September 2013

Is a raid on Syria violating international law?

We are living through an event that will shape the future of international law.  The use of chemical weapons in Syria has placed United States president Barack Obama in an invidious position.  The leader of the so-called free world has previously stated that the use of chemical weapons is intolerable, and requires response.

An attack on Syria without the backing of the United Nations Security Council (UNSC) may undermine the enforceability and usefulness of international law and is possibly in contravention of the United Nations Charter [PDF original or HTML summary] if it goes ahead without required UNSC authorization.

The primary responsibility of the UNSC is to maintain international peace and security, and “to save succeeding generations from the scourge of war”.  The Charter was incorporated in the aftermath of world war two in 1945, with a backdrop of global war-related destruction and many lives lost. It was ironically signed in the United States, in San Francisco on 26 June 1945.  It is critical in international law for a number of reasons, primary among these is that member countries agree to only conduct military action under certain circumstances, typically requiring several countries to approve action by way of vote.  For a recent list of UNSC sanctioned military action, see here.

The UNSC has five permanent members occupy voting rights - the United States, Russia, China, France and the United Kingdom.  In addition, to make a total of 15 members, there are 10 non-permanent members (rotating on two-year terms).  The five permanent members have the right to veto any proposed action and it is likely that any United States military action on Syria will be vetoed by either Russia or China - unless there is compelling evidence of chemical weapons abuse.

For these reasons, the rhetoric used by United States’ officials is that of the Syrian regime violating “international norms and for this to require a "limited, narrow act" in response.  This is the slightly grey area; if the United States perpetrate a limited, narrow act in response to alleged chemical weapons use, does this violate the norms and principals set out in the UN Charter?   Or put differently, does a limited strike, in retaliation to the use of chemical weapons, constitute an act which requires UNSC approval? 

Some member countries have adopted a more cautious approach and will await the outcome of the United Nations chemical weapons inspectors who are expected to publish a report on the chemical weapons use in the coming weeks, although it does appear as if several member countries are intent on a response, United Kingdom and France key amongst these.    

The United States Congress is due to vote on the use of force imminently – it is unlikely that UNSC authorization will be obtained.  However, forceful action appears to be on hold pending a decision by US Congress. Accordingly, the outcome of that vote may shape the future enforceability of the UN Charter and international law; or at the very least its interpretation in light of the unique circumstances.

Monday, 19 August 2013

Oscar Pistorius: Murder Trial Information

The Oscar Pistorius murder trial gathered pace in Pretoria on Monday when the indictment was made public by State Prosecutors.  The indictment contains two charges, one for premeditated murder, and another for illegal possession of ammunition in terms of the Firearms Control Act.  There were no charges relating to the reckless discharge of firearms, as widely reported in South Africa over the weekend.

The trial is set down for 3 to 20 March 2014 in the Pretoria High Court and the State is seeking to call 107 witnesses to prove its case.  A staggering amount of witnesses, and clearly the State envisages a dispute on a wide range of evidentiary and factual issues.  The trial duration, in my view, is also on the lengthy side but this is to be expected, given the nature of the defendant.

Above all, the State must prove (beyond reasonable doubt) that Oscar Pistorius unlawfully and with intention, murdered Reeva Steenkamp in a premeditated manner.  That is, he not only killed the young model but he premeditated this act.  Moreover, it must show, that in terms of the Firearms Control Act, Oscar possessed illegal ammunition.

It is important to note that the State does not need to include any competent verdicts (lower versions of the crime) on the charge sheet.  Simply, if the State cannot prove premeditation, the “next” crime would be murder (without premeditation).  If the State cannot prove that Oscar acted with intention, the “next” competent verdict would probably be culpable homicide, which is the negligent killing of another human being – the element of intention is not required for the crime of culpable homicide.  If there is a dead person and their death is a result of another’s negligence, culpable homicide will be likely if intention cannot be proved.  Essentially, if intention exists the crime is usually murder.  Where there is no intention, but negligence, the crime is culpable homicide.

What are the key issues?

The State must have evidence to show that Oscar Pistorius not only murdered Reeva Steenkamp (intentionally) but he also premeditated the crime.  The premeditation raises the severity of the crime and heavily influences bail and sentencing.  In South Africa, we do not have degrees of murder; it is simply the 1. unlawful and 2. intentional 3. causing of death of another 4. human being.

1. Unlawful

In most societies it is against public policy and social norms to take the life of another.  Almost invariably, killing another will be regarded as unlawful conduct.  However, the unlawful element can be vitiated if Oscar has a ground of justification for the crime.  The most common justification is private (self) defence.  Indeed, in this case, Oscar will probably seek to justify his actions on the basis that he was acting reasonably and within the scope of private defence to protect his own life and that of his loved one (who, on his version, was in danger).

In South Africa, there is authority for the fact that private defence, in limited circumstances, can be used to kill another to protects ones own life.  If it is found that the conduct of killing another was private defence, then there is no unlawfulness and if there is no unlawfulness, there can be no crime.  In fact, in Ex parte Die Minister van Justisie: in re S v Van Wyk, a 1967 appeal court decision which is still binding, the court found that killing another to protect property can be permitted.  However, given today’s constitutional dispensation, it is likely a case on similar facts to S v Van Wky may be decided differently. That academic nicety aside, there is concrete authority, both old and new, for the proposition that killing is justified where in private defence of ones own life.

2. Intentional

The key element in a murder charge (whether premeditated or otherwise) is intention.  If the State cannot prove intention insofar as the murder is concerned, there can be no conviction of murder and the next enquiry is whether the death of the person was caused by negligence.

How is intention proved?  At the risk of over-simplification, intention is proved by using objective elements (what would the reasonable person infer from the facts of the matter) and subjective factors (what was Oscar thinking at that time).  It is a complex enquiry and will take hours and hours of evidence to determine.

3. Causing of death 4. Of another Human Being

This does not appear to be in dispute.  Reeva Steenkmamp was killed by Oscar Pistorius – whether this killing was unlawful, alternatively, intentional is where the matter will be decided.

With that in mind, the trial will be a landmark one in South Africa.  The right to life taken against the right to protect ones own life will be discussed.  The plague of violence against women will be highlighted.  The fallen hero will be mourned or vilified, depending on which side of the fence you sit.  Forensic evidence will be analysed carefully and deliberately. All relevant persons will be heard. The long-standing common law precedent relating to murder, and the bounds of self-defence, will be revisited and debated at length.

It is South Africa’s version of the OJ Trial.

Saturday, 17 August 2013

Oscar Pistorius: What next?

Oscar Pistorius is due to appear in court on Monday 20 August 2013.  It is being widely reported by South African media that the South African National Prosecuting Authority (“NPA”) will bring two extra charges, both relating to separate incidents involving the reckless discharge of a firearm.

According to E News Channel Africa, the additional charges relate to the discharging of a firearm at a Johannesburg restaurant and for the discharging of a firearm through the sunroof of a vehicle.  Both incidents separate form the murder charge and at different periods of time.

What about time limits? And, can the prosecutors combine these charges with the main offence?

In South Africa, insofar as criminal offences are concerned, there is no statute of limitations placing a time limit on criminal law prosecution.  As is the case with many other common law jurisdictions, there is, generally speaking, no time limit on serious criminal offences.  Clearly, if a substantial period of time has elapsed since the commission of the crime and the prosecution thereof, a judge may rule that the time delay infringes on a defendant’s right to a fair and speedy trial.  Typically however, where a crime has been committed, a State is entitled to prosecute that crime at any stage where the evidence dictates a prosecution may be successful, even if a decade or more after the fact.

Similarly, in international law, war crimes, genocide, crimes against humanity are specifically excluded from any form of statute of limitations by international conventions such as the Rome Statute of the International Criminal Court, which states at Article 29:

“The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations”

Conversely, most international legal systems apply a prescription or statute of limitations insofar as civil matters are concerned.  In South Africa, the applicable piece of legislation is the Prescription Act 68 of 1969.  All actions must be instituted within three years of the Plaintiff becoming aware of the action.  There are, of course, a few nuances and exceptions but largely, a plaintiff has three years to institute a civil claim.  If he does so after the three-year period, the claim would have prescribed by the effluxion of time and it operates as a complete defence against any civil action.  So, the next time that pesky retail store that keeps calling you about the jeans you purchased in the 90’s, think about prescription…

With that in mind, it is completely within the ambit of criminal law to charge Oscar Pistorius with two further crimes that are, on the face of it, unrelated to the murder charge.  There would be no point in running new trials to charge a defendant with the reckless discharge of a firearm so the State Prosecutor will combine these offences with the murder charge when the court convenes on Monday.  The Court will ultimately decide whether to add these charges, but it is certainly possible, and looking at media reports, seems entirely likely.

What happens from here?

The NPA has confirmed that the defendant will “definitely” be charged with premeditated murder and further charges are “possible”.  It is likely the defendant will be made formally aware of all the charges he will face and a trial date will be set.  It is unlikely that anything further or material will take place, other than a trial date and formal knowledge of all crimes Oscar Pistorius is charged with.  No one can know exactly when the trial will be heard but reports are suggesting that it will be early 2014.  The NPA and judiciary cannot be seen to be giving Oscar favorable treatment and in South Africa one normally waits at least 6 – 18 months for a trial date, depending on the particular court and available resources.  That being said, there is international interest in this matter and a speedy trial date will be in all parties’ interests.