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Month: May 2016

THE APPLICATION OF THE TALEM QUALEM RULE

THE APPLICATION OF THE TALEM QUALEM RULE

A3In situations where a wrongdoer causes some form of damage to a victim, the victim might suffer more damage than one might usually expect. This might be caused by the specific circumstances in which the victim finds himself/herself, which leads to the victim suffering more damage than the average person. Would this be an acceptable defence for the wrongdoer, or must the victim’s existing circumstances be ignored when establishing the liability of the wrongdoer?

An example of the abovementioned is where the victim is in such an adverse financial position that he/she is unable to mitigate the damage caused by the Defendant.

The case of Smit v Abrahams 1994 (4) SA 158 (K) dealt with the matter at hand and is still the leading authority relating to the aforementioned question. In the case of Smit, the Plaintiff was involved in a motor vehicle accident in which the vehicle he owned was damaged beyond economical repair. The Plaintiff not only claimed the market value of the vehicle as damages from the Defendant, but also the cost of a rental vehicle for a period of three months in order to conduct his business. The extent of the Plaintiff’s damage was therefore partly caused by his own financial position and the fact that he could not afford a replacement vehicle at the time. These type of situations are known as thin-skull (or egg-skull) cases, where the circumstances of the Plaintiff influence the amount of damages suffered. In general, the thin-skull rule dictates that a Defendant cannot use the extraordinary vulnerability of the Plaintiff as a defence. This is also referred to as the talem qualem rule. The rule is based on the principle that you take your victim as you find them.

In the judgement, the thin-skull question is discussed as part of the court’s enquiry into the issue of legal causation. With regards to legal causation it is held that a rigid approach should not be followed, but rather a more flexible approach. This flexible approach should be based on reasonableness and fairness and each case should be dependent on its own facts. The fact that the Plaintiff’s damage was partly caused by his own financial vulnerability, is merely one of the factors to be considered when establishing whether or not the damage suffered was sufficiently relevant to the wrongdoer’s conduct.

It was held that, considering the facts at hand, the Plaintiff was entitled to hire a replacement vehicle in order to conduct business and that this would satisfy the criterion of reasonableness and fairness. Because of the fact that the Plaintiff was not in the financial position to buy a new vehicle after the accident and a vehicle was necessary for him to conduct the business, it was regarded as fair and just that the Defendant should carry the expense of hiring a replacement vehicle.

In cases where the thin-skull rule comes into question, the court will have to determine whether it is reasonable and fair to state that the damage suffered by the Plaintiff and particularly the extent thereof, was caused by the Defendant’s conduct.

The thin-skull rule, as originally contemplated and formulated, is not directly applied in South African law. However, the applicable principle, namely that the Plaintiff’s vulnerability does not serve as an acceptable defence, is considered as a factor when the element of causation is considered.

This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your attorney for specific and detailed advice. Errors and omissions excepted. (E&OE)

RIGHT TO A FAIR TRIAL

RIGHT TO A FAIR TRIAL

A2After the Oscar Pistorius saga everyone is wondering about the procedures of a murder trial. In this article we will discuss the right to a fair trial.

In the case of Zanner v Director of Public Prosecutions, Johannesburg (107/05) [2006] ZASCA 56, 2002 (2) SACR 45 (SCA); [2006] 2 All SA 588 (SCA), the factory worker threw a tool at a colleague, which ended fatally. In the statement of the accused he alleged that the tool had slipped from his oily hands when he slung his shoulders in a gesture of irritation. The matter could at first not proceed with trial as the witness was missing. Once she had been found, the trial was set down to be heard. However, the charge was withdrawn as representations had been made on behalf of the accused.

After ten years the case had been reopened as the accused had been charged for killing his wife, which was a direct relation to his previous conviction. The accused relied on Section 35 (3) (d) of the Constitution which states that “every accused person has the right to a fair trial, which include the right to have their trial begin without unreasonable delay”.

In this matter the accused believed that his case would suffer prejudice due to the previous murder trial of ten years ago. Furthermore, Section 38 of the Constitution grants a relevant party the right to approach a competent court on the ground that a right in the Bill of Rights has been infringed or threatened and, depending on the circumstances of each particular case, the court may grant appropriate relief, including a declaration of rights. Trial related prejudice refers to prejudice suffered by an accused mainly because of witnesses becoming unavailable and memories fading as a result of the delay, in consequence whereof such accused may be prejudiced in the conduct of his or her trial[1].

Counsel agreed that the delay in prosecution had to be calculated from the date when the accused was first charged with the offence. The judge did not find in favour of the accused; however, he noted that each case is different and the lengthy delay cannot always be seen as an infringement on a right. The circumstances of the unreasonable delay needed to be investigated.

In this matter the accused’s previous conviction trial had been delayed because the witness was missing, the original docket papers were missing and the representations had been made on behalf of the accused. No issues of restricted freedom, stress, anxiety or social ostracism arose. The judge therefore found that the accused was not denied a right and the appeal was dismissed with costs.

[1] S v Dzukudu and others; S v Tshilo 2000 (2) SACR 443 (CC)

This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your attorney for specific and detailed advice. Errors and omissions excepted. (E&OE)

WHO ARE OCCUPIERS IN TERMS OF THE EST ACT AND WHY ARE THEY EXCLUDED FROM THE AMBIT OF THE PIE ACT?

WHO ARE OCCUPIERS IN TERMS OF THE EST ACT AND WHY ARE THEY EXCLUDED FROM THE AMBIT OF THE PIE ACT?

A1The Prevention of Illegal Eviction and Occupation of Land Act 19 of 1998 (“PIE Act”) provides, inter alia, the procedures for the eviction of unlawful occupiers. Section 1 of the PIE Act defines an “unlawful occupier” as someone who occupies land without the express or tacit consent of the owner or person in charge or without any other right in law to occupy such land. This definition expressly excludes a person who is an occupier in terms of the Extension of Security of Tenure Act 62 of 1997 (“EST Act”). Section 29 (2) of the EST Act states that the provisions of the PIE Act shall not apply to an occupier in respect of land which he is entitled to occupy in terms of this Act. Who are occupiers in terms of the EST Act and why are they excluded from the ambit of The PIE Act?

The EST Act has as its aim the provision of measures to facilitate long-term secured land tenure with state assistance. This Act grants occupiers the right to obtain a secured long-term right to occupancy with the permission of the owner, upon request on or after 4 February 1997.

Occupiers of rural land, farms and undeveloped land are specifically protected under this Act. The EST Act does not apply to, inter alia, occupiers living in already proclaimed township areas, land invaders, labour tenants and people using land for mining and industrial purposes and for commercial farming purposes. Occupiers in terms of the EST Act receive a secured right in law to live on and use the land they have been occupying, under permission, for continued periods of time. The occupier thus enjoys protection of this right and as a result such a secured right may not be unreasonably altered or cancelled by the owner or person in charge of the land without notice to, and the permission and/or consent of, the occupier. This includes protection against unfair or arbitrary eviction and, in fact, provides its own specific mechanisms for the eviction of long-term secured occupants, which must be followed.

Actions such as the removal of a right to occupancy, access to the land, water or electricity, denial of family or visitors on the said land and the prohibition of the use of the land for personal reasons are all forms of evictions in terms of the EST Act and are strictly regulated by this Act when applicable to occupiers classified under and granted rights in terms of this Act.

Many occupiers of land who do so with the proper and necessary consent and permission of the owner are not aware that they possess tenure rights to occupy such land on a long-term basis. Unless such an occupier commits a serious wrong or fails to honour any terms of the agreement with the owner, he/she may not be arbitrarily evicted in terms of any eviction process available to owners, including those available under the PIE Act. Such occupier’s rights are protected and regulated under the EST Act.

Bibliography:

  1. Prevention of Illegal Eviction from and unlawful Occupation of Land Act 19 of 1998; www.sarflii.org/za/legis/consol_act/poiefauoola1998627/ (accessed 11 March 2016);
  2. Extension of Security of Tenure Act 62 of 1997; www.justice.gov.za/lcc/docs/1997-062.pdf (accessed 11 March 2016);
  3. People Against Suffering Oppression and Poverty, PASSOP, www.passop.co.za/your-rights/housing-rights-esta (accessed 11 March 2016).

This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your attorney for specific and detailed advice. Errors and omissions excepted. (E&OE)