Legal Eye for the Layperson

As most of you know, maintenance is normally a word people bandy about in housework or movable repairs. Of course, on the more serious note, it also relates to a duty by one person to support another person or people. This duty of support can either result from an act of volition (i.e. marriage or adoption) or from conception of life (i.e. a child or parent). They are reciprocal duties of support that each party owes to the other. The two differ in minor respects but the concepts are (for this purpose) essentially very similar. Support depends on a lifestyle to which a person has become accustomed (when married and subsequently divorced) or depends on the needs of that person with whom a duty exists (when dealing with a child born out of wedlock or your own parents). However, as with lifestyles these days, they are fickle and subject to changes in one's own circumstances. If this occurs, it is up to the person who suffers those changes to approach the court for a variation in su...

The criminal matter of Oscar Pistorius is no secret. The justification behind the hype is that he is a celebrity. Every day, for the past four days, little tid-bits of interpretations and rarely facts were hogging the headlines of this matter. Meanwhile, a six year old girl was raped today by a fellow student at her school in Western Cape. In addition to this, a woman was gang-raped by a group of men, some of whom have been arrested. Compared to the headlines stolen by the Pistorius case, who would want to hear about South Africa’s most tragic flaw? Who is being failed here? The justice system – the media can play a crucial role in societal awareness. Its people – who better to propagate a crime-preventative society than its people? The victims – being outgunned by the same system which was built to protect them is not justified.

Yesterday afternoon, on my way back home from work, I heard about an incident on the radio. It was casually announced that a 17-year old teenager named Anene Booysen was "viciously" raped and mutilated in her home town of Bredasdorp, Western Cape, South Africa. Before she passed away, she managed to name her ex-boyfriend as one of the rapists. It would appear, as there were many suspects, that she was gang-raped. At this point, two men had been arrested and will be brought before court next week. After hearing this  announcement, the country was up in arms and the African National Congress (ANC) Women's League commenced intense political action against rape, demanding that more awareness and "harsher punishments" to be handed down by the courts for such crimes. LEAD SA, a 94.7 initiative, also commenced public action. The two statistics that frightened me the most were announced as well and these were: One in every three women in South Africa will be ra...

In my very short-lived but extensive experience of the Maintenance Courts, Gauteng, I have sadly become disappointed with what has recently transpired. Magistrates and Maintenance Officers from certain jurisdictions have taken an antagonistic approach towards "Interim Orders" and "Provisional Orders" for maintenance of a child pending finalisaton of those proceedings. This problem arose as a result of the Pents v Ilsley judgment out of the South Gauteng High Court where the Randburg Maintenance Court (and thus any other court following the same procedure) was penalised for issuing Subpoenas to Respondents for their " First Appearance " at court. This " First Appearance " is an informal inquiry before a Maintenance Officer in terms of Section 6 of the Maintenance Act. In terms of the Regulations to the Act, this process is indeed the incorrect procedure. The nature of a Subpoena in terms of the Act is for the the purposes of calling upon the...

Isn't it uncanny how there is an element of truth in justice but truth does not necessarily encompass justice? One can define truth as the conformity to fact or reality – which is synonymous with declarations of righteousness and freedom from falsehoods. In all material understandings of the concept of truth, the foundational meaning lies in objectiveness of fact. On the other hand, if one had to define justice, a key element in true (or natural) justice is honesty and conformity with truth and reality. Put simply, justice is the integrity in the dealings between men. It is the strict compliance with moral obligations toward humanity and the Divine Law. It is in fact the basis upon which human rights were created. And is it not fascinating how justice and truth link when it comes to human rights? In what instances have truth and justice been linked in the arena of international human rights? One of the most famous examples of this is the creation of Truth Reconciliation C...

By its very nature, the concept of maintenance should be quite easy to ascertain and acquire in law. A parent of a child is (especially, for the purposes of law, financially ) duty-bound and legally bound to support his or her child, whether natural or adopted parent. In a similar fashion, the law has created a set of reciprocal obligations between parents and children: children are equally bound to support their parents as parents are to support their children. In South Africa, especially because of,  inter alia , the high birth rare, the law has been geared with a fool-proof Maintenance Act , Regulations, and Court. This is primarily because the Constitution of the Republic of South Africa ("the Constitution") is the highest law in the land and therefore equality before the law is an entrenched value in respect of all law created and regulating the country. However, the Maintenance system, particularly in Gauteng, is a system which is now essentially defunct: it ...

The dilemma that has been bothering me is how can we level (if ever) the requirements of an accused’s right to a fair trial and justice ? See the example I have found which could potentially be a step forward. In South Africa, & perhaps in the UK as well, the general rules for the admissibility of Admissions/Confessions is that it has to be: Given freely & voluntarily With no threat/act of violence And no undue influence In additional, the evidence has to have been obtained in a constitutional manner, meaning: It was obtained in a way that didn’t infringe your rights ; or If it is admitted, it would not render the trial unfair or be detrimental to the administration of justice What I really want to discuss is the state of our law in relation to facts discovered in consequence of information given by the accused whether it be lawful or unlawful. The most common form of obtaining this evidence is through pointing out . The case of R v Sam...