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…

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

Tuesday, 4 March 2014

Oscar Pistorius Trial - how far will the media push it?

After the ground-breaking decision allowing media almost unfettered access to the Oscar Pistorius criminal trial, a local 24 hours news channel, in direct contravention of a court order allowing the broadcast of the trial, published a still image of the witness.  It apologised almost immediately.  At any stage, the Court may decide to pull the proverbial plug on the trial – so please local media; keep your brains with you and don’t keep pushing the limits…

The management of the Pretoria High Court must surely have tested the Afrikaans to English translator before this trial of global interest?  Surely, the management lined up several ‘substitutes’, it appears not as South Africa continues its embarrassing record with translators and events of global significance – the Wall Street Journal Blog asking the question, ‘Did Another South African Event Get Lost in Translation?

Back to the trial, open justice is a critical concept in South African law and the term is capable of wide-interpretation but, in this context, refers basically to freedom of expression (the public’s interest to watch the trial and understand South Africa’s justice system) versus the right to a fair trial, trial-by-media and the privacy of various witnesses and persons involved in the trial. 

The decision to allow the broadcasting of the trial, creating a live reality TV show and a media frenzy, as has been stated elsewhere, is precedent setting and will be seminal in our law.  The actions of the 24 hours news channel almost immediately abused the court order and places the future publication of the Oscar Pistorius trial in doubt.  A professor of journalism at the University of the Witwatersrand has called the decision to test the order silly and ‘bloody stupid’.  Absolutely. The Judge has warned all media outlets and one hopes sanity will prevail in future coverage. 

Assuming the media plays ball, is the trial being broadcast, discussed and analyzed to the nth degree, any good for South Africa and its legal system?  I think so.  South Africa has a robust and systematic legal system and the coverage can only improve confidence in South Africa’s rule of law – crucial for significant foreign investment and future lawyers…

The other benefits, particularly as someone involved in legal education, is a live test case for students and recent graduates to review and understand.  It provides hands-on experience and a taste of court proceedings to the un-initiated. It also underpins the importance of freedom of expression in South Africa and the evolving concept of Open Justice.

Conversely, one may argue that the South African legal system, or in fact any adversarial legal system, favours those with funds and of a certain class or group.  Simply, money and/or status buys innocence in the eyes of many – perhaps, but the inherent benefit of the South African legal system is that the onus is on the State to prove everything, beyond reasonable doubt.  Oscar Pistorius is innocent at this stage, and until the State can prove otherwise, the coverage should bear that in mind. 

Saturday, 8 February 2014

Digital Legal Wrap 2013; and into 2014…

Around this time last year I wrote an article Legal Social Media Roundup 2012 and thought it about time I did something similar for 2013…

So, although the legal position hasn’t dramatically changed during the twelve of so months per se, law in the digital realm has been developing gently, and amongst a few key points, data privacy shot to the top of mind with Prism, whistle-blower Edward Snowden and America’s creepy spying-on-everyone including the UN program. In South Africa, Oscar Pistorius dominated legal media related stories and this theme will continue into 2014 with our celebrity trial, sure to consume all facets of local social media.

Around a year has passed since I took the screen shot below illustrating the exponential growth of social media (coinciding with phenomenal growth of Google and the Internet as a serious tool for business and communication):

Google trends 2012/2013

Today, that picture continues to steadily evolve and grow; and is self-explanatory:

Free Speech is still King in the United States!

In Seaton v Trip Advisor LLC (via the digital media law project), a United States Court of Appeals for the Sixth District confirmed the obvious statement above.  It decided that a trip advisor list of the ‘dirtiest hotels’ did not constitute enough for an actionable claim of defamation as it was based on disclosed facts and a reasonable expression of opinion.  Ultimately, Trip Advisor published opinion which contained names of certain hotels.  If opinion is informed by visiting a number of hotels and rating them on similar methodology  (incorporating opinion from fellow travellers), then an expression that follows, regarding dirty hotels, is totally reasonable and probably required. Trip Advisor avoided liability.  Bravo DMLP!

South Africa’s media law differs slightly, clearly, but in my view a similar claim would find similar results, with the proviso that the publisher of the list took reasonable steps to ensure the information is accurate and the publication is reasonably informed. 

Employee Rights and Social Media

The existence of social media policies and an accepted form of practice is a bit old-hat for larger organisations, particularly foreign business entities, but many small to medium enterprises in South Africa still operate with very little to no policy or framework in place – perhaps, at most, vague reference in an employment agreement. This is not ideal and is recipe for abuse and potential labour issues…

In any event, most employees will use social media; the question that may have lingered was whether an employer might force access to a particular social media account.  That would stretch even the most liberal persons view of full access for employers and almost obviously, an employer cannot compel an employee to disclose a password to a social media account.

However, and this is becoming a common phenomenon all around the globe, if an employee defames her employer on Facebook or any other form of social media, even if in the heat of the moment, the consequences may be dire and result in dismissal – even with South Africa’s administratively intensive and challenging labour regime.

Facebook defamation

Defamation claims in the social media space continue unabated – the ‘faceless’ element and a perception of no accountability leads to a ‘chaotic and cacophonous space. 

First, a technical point that may be of interest while I climb on my academic horse.  Defamation (this is what we call it in South Africa) is simply an action to protect your personality (reputation) rights and as pointed out by NGO Article 19, should strike a balance between protection of individuals’ reputation and freedom of expression.  It includes both slander (verbal) and libel (written) – both are forms of defamation and, put differently, you cannot slander someone with the written word, and vica versa. Please take note City Press and News24 Nigeria

In any event, the staggering rise of Facebook (it turned 10 just the other day) means that being ‘tagged’ in a post or photograph is part of our daily lexicon.  An angry and emotional women, following on a series of legal proceedings including divorce and a form of restraining order, posted this statement on Facebook:

‘To all moms and dads… what do you think of people who allow step-brothers to bath their little sisters each night, simply because it would make the mother’s life easier???’

In addition, the ex-husband was ‘tagged’ in the above post and he was, along with the author of the post, held liable for to pay R40 000,00 (about $4000) damages.

The judge ruled that although the ex-husband was not the author of the post, he passively condoned the conduct and was deemed to have known about the post and willingly allowed his name to be associated with the defamatory statements. 

This may have repercussions for many people going forward.  At some stage or another I am sure you have all stumbled upon a Facebook or other form of social media ‘hate group’ where one person / celebrity / entity / thing is defamed and all sorts of normally rational people seem to lose the plot entirely and get stuck in.  Careful, that could have potentially dire consequences…
POPI Act / Data Privacy

The Act was signed into law on 9 November 2013 and published in Government Gazette number GG 37067 on 26 November 2013.  It is South Africa’s answer to the global trend of protecting personal information and sensitive data in our increasingly digital lives. The POPI Act has been on the agenda for quite some time and has a one-year implementation stage and a date (to still be announced) on which it will be fully effective and enforceable.  This will, most probably, be the end of 2014 or into 2015.   To simplify it, the thrust of this Act is protect South African citizens (read: you and me) from having their personal information ‘processed’ without i) our consent; and, ii) if our information is used, stored or passed on, it must be done in a reasonable manner and having used accepted methodology. For example, banks, insurance companies, anyone who needs and uses personal information to perform their function (as s service provider) or; to attempt to sell us stuff at annoying times, need to clean up and do it properly! The POPI Act and South African’s Consumer Protection Act places the average consumer in a position of power (on paper in any event…)

As an aside, don’t confuse POPI with the nefarious ‘Secrecy Bill’; they are different pieces of law with entirely opposed goals. The Protection of State Information Bill, which has garnered much negative publicity, seeks to protect State information.  They are often confused, but in my view, POPI equals a protection of citizen information, which is basically good (if administratively intensive and potentially costly), and a required change to our law.  The Secrecy Bill, on the other hand, is legislation designed to protect State information (under the guise of protecting State interests), but can easily be manipulated to hide corruption or negligence on behalf of the State and this is concerning for many.  

Oscar Pistorius

South Africa’s own version of a celebrity trial, a bit like fallen American football hero of the mid-nineties - OJ Simpson.  Ultimately, OJ got off because of a dodgy glove; will Oscar be so lucky?  Only time will tell, but we all wait with interest. 

Sochi Olympics and Gay rights

On the face of it, wanting to protect naïve and innocent children from pornography is a noble cause.  That is potentially the only positive ‘spin’ one can put on Russia’s anti-free speech laws that criminalize information relating to homosexuality. The evil Gays are not permitted to talk to children for their own safety. Essentially, while in Russia, it is an offence to communicate any form of material concerning homosexuality.  ‘They’ mustn’t talk about sexual orientation and it is a criminal offence to, for example, have a rally, speech or march.  The IOC then follow with the mandatory ‘we love and accept everyone’ – the Olympics were awarded to Russia prior to the passing of the law to be fair to the IOC, but these sorts of laws should be vehemently opposed, both on a moral and on a legal basis.

Law Society of South Africa's Advanced Electronic Signature Pilot

Finally, the LSSA spent much of the later half of 2013 pushing forward technology in the practice of law.  In the next few months attorneys in Gauteng and KZN are to pilot advanced electronic signatures – basically, an extremely secure digital signature. 

Changes will be made to court rules to facilitate electronic litigation and property transactions can be fully completed digitally. Forward thinking and far from the frumpy, grey old men they are often painted out to be. Again, bravo!

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