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Speak no law without justice for all!

law without justice

A law is deserving of respect to the extent, and only to the extent, it is just. A law which is not just deserves only the level of obedience one gives to any group or individual who says “do this, or I’ll hurt you.” That is, to the extent that you believe their threat is credible, you may choose to obey to avoid the adverse effects of being caught disobeying.

Full trials, and the full protection of the law, such as it remains, now belongs only to those who are very wealthy, and sometimes not even to them. Defending a trial can take hundreds of thousand or millions of dollars. An ordinary person cannot afford it. Public defenders are overworked, underfunded, and generally plead out. This is on top of the fact that most rich criminals, such as the bankers who committed widespread fraud, are never charged with crimes, and if they are charged are allowed to settle with a token payment which immunizes them from further charges for their criminal acts, acts which demonstrably cost hundreds of thousands of people their houses, lost people their jobs, and even their lives. Law which is enforced only against some classes of people, and not against others, is unjust.

There is no justice without proportionality, no justice in a land with secret laws, no justice in a country where the rich skate and the poor plead out. There is only law, the same law the Stasi proclaimed: do what we say or else.

 George Kleynhans

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Facing cancer & covid 19


Facing cancer & covid 19



On 18 September 2019, the Constitutional Court dealt a lethal blow to the use of physical force when disciplining children. In Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others [2019] ZACC 34, the matter began as a trial of assault with intent to do grievous bodily harm in the Johannesburg Magistrate’s Court. A father decided to discipline his son physically when he found him watching pornographic material and meted out the discipline in the form of kicking and punching. This led to the father being convicted of common assault.

Aggrieved by the outcome, the father lodged an appeal to the South Gauteng High Court. The High Court took it upon itself (without the issue being pleaded) to decide whether the validity of the common law defence permitting parents to chastise their children moderately and reasonably was constitutionally valid. The High Court, per Keightley J, declared the defence to be constitutionally invalid and therefore prospectively unavailable to parents charged with the offence of assault upon their children. This decision was then appealed to the Constitutional Court.

The Con Court, per Mogoeng CJ, elected to resolve the issue on the basis of Section 12(1)(c) of the Constitution which provides that “Everyone has the right to freedom and security of the person, which includes the right … (c) to be free from all forms of violence from either public or private sources.” The Court also referred to Section 28(2) of the Constitution, which provides that “[a] child’s best interests are of paramount importance in every matter concerning the child.”

The Court noted that parents have over the years enjoyed the right to discipline their children in a variety of ways, including the administration of moderate and reasonable chastisement. This right is regarded as an incident of the enjoyment of the constitutional right of freedom of religion or culture. However, in the view of the Court, what militated against the defence of moderate and reasonable chastisement was that it could not be demonstrated to be in the best interests of the child, especially when there is an effective non-violent option available.

The Court concluded that any form of violence against a child, including reasonable and moderate chastisement, is a criminal assault and that the High Court was therefore correct in its conclusion that the common law defence of reasonable and moderate chastisement is constitutionally invalid.

Closing thoughts
The sweeping nature of this finding leaves many questions unanswered. First, if every slap of a wayward child is a criminally prosecutable offence, will special courts be set up to deal with the rash of prosecutions that will inevitably follow? Second, in the absence of a serious incursion into a child’s wellbeing, is it the role of the state to interfere with the authority of parents in raising their children? Burchell and Hunt, authors of South African Criminal Law and Procedure 3 ed, explain that “the law has traditionally conceded to parents a uniquely independent authority in rearing children. This meant that the State did not interfere in the exercise of the rights, duties and responsibilities of the parent.” In South Africa’s post constitutional era, it is questionable whether the State, with its notoriously inadequate resources and ineffective methods of prosecution, will do a better job of overseeing the wellbeing of children than their own parents.
Ivor Heyman is an advocate at the Johannesburg Bar. He publishes articles of interest to attorneys and their clients. For questions or comments you can reach him at or 061-120-8740.

hunting memos

BR v Liquidation

Liquidation or business rescue – what is the difference?09 August 2017

“My family company has been operating successfully for nearly 20 years. Over time I’ve also managed to get a few investors into the business. The last year however has been tough and we are struggling to make ends meet. I feel its decision time about the future of the business, but was wondering whether liquidation is the best route or must I rather look at business rescue? What is the difference between these two options?”

In difficult economic times, many companies are having to come to terms with making tough financial decisions. Filing for liquidation, has in the past been a route considered by many companies. The  Companies Act 71 of 2008 (“Companies Act”), introduced another intervention mechanism, namely business rescue, as an option to be considered by a company that is in financial distress. 

In terms of the Companies Act, a company will be considered to be in financial distress, if the company is not in a position to reasonably pay all of its debts as they become due and payable within the immediately ensuing six months or it appears reasonably likely that the company will become insolvent in the immediately ensuing six months. Once it has been established that a company is in financial distress, it must then be considered whether to file for liquidation or undergo business rescue. 

To make this decision, the objective of each option must be considered as well as the process to be followed by a company.

With liquidation the objective is to dispose of the assets of the company and apply the proceeds thereof to pay the creditors of the company in terms of a legal order of preference. The purpose of business rescue on the other hand is to rehabilitate the financially distressed company and to rescue it by means of a plan that will help the company to turn its financial distressed position around and trade on a solvent basis again. Liquidation and business rescue proceedings can be launched either voluntarily or by way of an application to court by creditors and affected parties.

To initiate the voluntary liquidation process a company must decide on a date for the institution of liquidation proceedings. As from this date the company will not be allowed to incur any further debt but can continue trading. Any income then derived will go into the insolvent estate, and may not be used by the company. Once the date has been selected the shareholders of the company must resolve, by special resolution, to place the company under liquidation and an accompanying court application has to be submitted to the High Court. The court will first issue a provisional liquidation order before issuing the final order and notice must be given to all creditors before the final liquidation order is granted. Once the provisional liquidation order is granted no creditor may institute any legal action against the company and any legal action instituted will be suspended. The Master of the High court will appoint a liquidator who will determine the assets of the company, hold meetings with creditors, collect outstanding debt, sell assets, pay creditors and finalise the estate, after which the matter will be closed.

To initiate business rescue proceedings voluntarily the board of the company may resolve to place the company under business rescue if the company is financially distressed and there appears to be a reasonable prospect of rescuing the company. The resolution may not be adopted by the board if liquidation proceedings have been initiated by or against the company and will have no force or effect until it has been filed with the Companies and Intellectual Property Commission (“CIPC”). The company must notify all its creditors and appoint a business rescue practitioner (“BRP”) within five days after the resolution has been adopted and filed with CIPC. During business rescue proceedings no legal action including enforcement action may be instituted against the company, except with written consent thereto by the BRP or with leave of a court. The BRP is responsible for assessing the affairs of the company, holding meetings with creditors, other affected persons and management of the company and compiling a business rescue plan which needs to be voted on and accepted by all affected persons. The business rescue plan must indicate amongst others the probable dividends creditors would have received if the company was placed under liquidation and must prove that under business rescue the company is able to generate a better monetary return for its creditors than in the event of liquidation. The plan must further set out the advantages of business rescue over liquidation. Once the business rescue plan is adopted it binds the company, creditors and holders of any securities against the company.

Business rescue compared to liquidation provides for the company’s debt to be managed and contracts restructured and reorganized in order for the company to continue to trade on a solvent basis rather than selling off all of the company’s assets and the company being shut down as in the case of liquidation. If it does happen that business rescue is unsuccessful, the BRP may apply to court to have the company liquidated. The business rescue process is therefore a last lifeline to try and turn a company around before it has to close its doors when liquidated.

In your case, your views on the potential to rescue the company and the degree of financial distress the company is in, will determine which of these proceedings are the most appropriate route (if any) to be followed. Consider enlisting the help of a legal practitioner to help discuss in more detail the pro’s and con’s of these legal options for your company.

exemption clauses Uncategorized

Exemption clauses

Much has changed in the legal landscape surrounding exemption clauses from when the landmark case of Durban’s Water Wonderland (Pty) Ltd v Botha 1999 1 SA 982 (SCA) was decided. In that case, the court had to decide on the enforceability of a disclaimer notice when the plaintiff and her daughter were flung from a jet ride in an amusement park. The SCA held that, since the defendant had done whatever was necessary to bring the notice to the attention of the plaintiff, the notice could be incorporated into the contract between the plaintiff and defendant, and the disclaimer notice was upheld.

Over time, the strict interpretation of contract followed by the court in Durban’s Water Wonderland has been tempered by various decisions of our courts. As can be seen from the decisions below, courts have become unwilling slavishly to enforce exemption clauses, preferring instead to examine whether the terms of the contract operate unfairly and unreasonably on the plaintiff.

In the case of Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA), the court stated in an obiter dictum that exclusion of liability for damages for negligently causing the death of another was “radical” and that it was arguable that to permit such exclusion would be against public policy because it runs counter to the high value which previously the common law, and now the Constitution, places on the sanctity of life.

In the case of Barkhuizen v Napier 2007 (5) SA 323 (CC), the Constitutional Court held that, while it was necessary to recognise the doctrine of pacta sunt servanda, courts could decline the enforcement of a contractual clause if implementation would result in (i) unfairness or (ii) would be unreasonable for being contrary to public policy. According to the court, a term in a contract that seeks to deprive a party of judicial redress is prima facie contrary to public policy, and is inimical to the values enshrined in our Constitution, even if freely and voluntarily entered into by consenting parties.

In Naidoo v Birchwood 2012 (6) SA 170 (GSJ), the court held that an exemption clause which enabled a hotel to escape liability for injury to its customers while on hotel premises could not be enforced. The court stated that the question is whether in the circumstances of a particular case (e.g. where the plaintiff is staying at a hotel or visiting a public place), the enforcement of a contractual term would result in an injustice. If the exemption clause prevented the contracting parties from having access to the courts, it would be unfair and unjust.

The most far-reaching incursion into the sanctity of exclusion clauses can be found in the Consumer Protection Act, No 68 of 2009. Regulation 44(3)(a)2 of the Act provides that a term of a consumer agreement is “presumed” to be unfair if it has the purpose or effect of “excluding or limiting the liability of the supplier for death or personal injury caused to the consumer through an act or omission of that supplier…” This regulation creates a presumption that the defendant bears the onus to dislodge, and which the plaintiff may then rebut.

It is submitted that exclusion clauses have gone from being prima facie enforceable to prima facie unenforceable. The reason is that such clauses deny access to the courts, a situation that our courts are no longer prepared to countenance for the reasons stated above. The result is the plaintiff no longer bears the onus to show that the clause limiting liability for injury or death is unfair and unreasonable. The defendant now bears the onus of showing that the clause is fair and reasonable.

right to privacy

Privacy rights in SA – Facebook

Privacy rights in SA – Facebook

Please see below for an important case dealing with the question whether an aggrieved party has a right to privacy when evidence about him has been obtained unlawfully obtained from Facebook. Feel free to share it with your colleagues and clients who might find it of interest. You are also welcome to contact me by reply email or phone with any comments or questions.

In the recent case of Harvey v Niland 2016 (2) SA 436 (ECG), the applicant, Mr Harvey, and the first respondent, Mr Niland, were the only members of a close corporation, Huntershill Safaris CC, which offered professional hunting services to its clients. Niland was employed by Huntershill as a professional hunter and safari guide until mid 2015. Around that time, Harvey and Niland parted ways on bad terms and Niland took up employment with another hunting company, Thaba Thala Safaris.

Harvey suspected Niland of breaching his fiduciary duties to Huntershill by acting in competition with Huntershill, and soliciting and diverting its clientele to Thaba Thala. A colleague provided Harvey with Niland’s Facebook login details. This enabled Harvey to access Niland’s Facebook account without Niland’s permission. Harvey then downloaded Niland’s Facebook communications which showed that Niland had been actively soliciting Huntershill’s clientele and diverting them to Thaba Thala.

Harvey then brought an urgent application to interdict Niland from soliciting Hunterhill’s clientele on the basis that these solicitations were causing financial and reputational damage to Huntershill. Niland argued that the communications had to be struck out because they infringed his right to privacy and were obtained through the commission of an offence under s 86(1) of the Electronic Communications and Transactions Act 25 of 2002. A central issue before the court was whether the Facebook communications unlawfully obtained by Harvey could be admitted.

The court dismissed Niland’s claim to privacy and held that the hacked posts, while revealing duplicitous conduct on Harvey’s part, were essential to Harvey’s case and could not in practice have been procured in another lawful way. In the circumstances Niland’s appeal to privacy rang hollow and would need to be overridden by the public interest that his deceitful conduct be exposed. The meant that the evidence illegally obtained by Harvey was admissible and Niland’s application to strike the evidence out was dismissed.

Of interest to attorneys and their clients is the court’s reasoning in this case. The court explained that:
1. At common law, the rule is that all relevant evidence is admissible unless rendered inadmissible by an exclusionary rule. However, that rule is not absolute: the court has a discretion to exclude unlawfully obtained evidence.

  1. In deciding whether to exclude unlawfully obtained evidence or to admit it, the court will have to regard to the following factors:

2.1 Privacy, like other rights, is not absolute. As a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks. This diminished personal space does not mean that once people are involved in social interactions or business, they no longer have a right to privacy. What it means is that the right is attenuated, not obliterated, depending on how far one has strayed from the inner sanctum of the home.

2.2 Is the matter before the court a criminal or a civil matter? In criminal proceedings, an accused has a right against self incrimination and to silence. The accused is therefore not obliged to disclose his defence, or to assist the state to prove its case by providing it with any documents that may strengthen its case. On the other hand, in a civil case, a party is not only obliged to disclose his case, he is also obliged to discover all documents which may damage his own case or which may directly or indirectly enable his adversary to advance his case.

2.3 The upshot of this distinction between civil and criminal cases is that in a civil case, if the evidence involved is the type of evidence which the litigant would or should eventually obtain through lawful means (e.g. discovery) had he known about it, the court will likely admit it, especially in cases (such as this one) where the applicant would not otherwise been able to lay his hands on it.

It would appear from obiter dicta of the court in Harvey v Niland that the right to privacy is more limited when one uses a social media platform such as Facebook to issue certain communications. The person issuing those communications cannot expect to rely on the violation of his/her privacy if those communications are then brought to light, whether the communications were obtained legally or illegally.

deceased estates

Deceased estates – disputes

disputes over a deceased relative’s estate
22 May 2018

If someone leaves a sizeable estate behind, it may cause conflict among the possible heirs. The help of an attorney, when settling an estate after a death, can avoid unnecessary troubles.

The Administration of Estates Act, 1965, determines what must happen with an estate after a person’s death. There are certain steps that should be taken to ensure the process is legal. However, if the estate is worth a lot of money or the deceased has children, then it is a good idea to seek the assistance of an attorney, as family disputes and debts of the deceased can be confusing. In order to do this an executor will be appointed to act on behalf of the estate.

Finding the will of a deceased relative

If the deceased person left a will the first thing to do is find it. If they did not tell you beforehand where their will was, you can try calling the probate court in their district or the office of the Master of the High Court to check if they have a copy of the will. Other places to call would be the deceased’s life insurance company, bank or lawyer. Otherwise, the deceased might have left a copy of it somewhere secure in their home.

Who is the executor?

An executor is the person appointed to handle the process of settling the estate. The executor will either be mentioned in the will of the deceased or appointed by the Master of the High Court. The Master will ultimately decide who will take the role of executor. If the chosen executor doesn’t know how to handle the estate or is unfamiliar with the legal procedure, he or she can go to a lawyer for help. Once the executor has been chosen, the Master will give them “Letters of Executorship”, which will give only them the authority to handle the estate.

What does the executor need to do?

The executor has several responsibilities such as arranging the valuation of the estate’s property and assets. They will also be responsible for contacting and dealing with all the beneficiaries.

Some other responsibilities of the executor include:

•    Arranging provisional payments for the family’s immediate needs.
•    Opening a bank account for the estate and depositing the estates money in it.
•    Paying all the necessary estate duties.

It’s important that any person who wants to act on behalf of the deceased person’s estate have the Letters of Executorship. If not, their actions would be considered illegal. This also applies to the spouse of the deceased person. This eliminates the possibility of several different family members trying to influence the estate’s dealings. The executor will also decide how the assets will be divided between the heirs and if any or all assets need to be sold. If a will is in place the executor will base his/her decisions on it.

Eventually, the executor will prepare a liquidation and distribution account. This would include what they intend to do with all the assets left after expenses. This account would be delivered to the Master, who will check to see if the executor’s actions reflect the will of the deceased and that all legal requirements have been fulfilled.

Important things to keep in mind?

The Master of the High Court should be notified of the deceased person’s estate not later than 14 days after the death. According to the Department of Justice, the death of anyone who owned property in South Africa must be reported to the Master, whether or not they died in the country.

All estates that exceed R50 000 should be reported to the Master of the High Court directly because magistrate’s offices have limited jurisdiction. If reported to the magistrate’s office, estates will usually be referred to the Master.


The Department of Justice and Constitutional Development. 2012. “Reporting the estate of the deceased”. Accessed from: on 11/05/2016.

Administration of Estates Act 66 of 1965. Accessed from: on 11/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

arrest attorney public warning

Public warning

Public warning



FOUND IN POSSESSION OF STOLEN TITLE DEED                                                                          IN CONTEMPT OF HIGH COURT ORDER TO RETURN SAME TO THE OWNER

Linkedin profile: Mohamed Salim Shaik

Senior Attorney at M S Shaik Inc


Polokwane Area, South Africa


Magistrate to face criminal charges


Now practising as attorney Shaik

Various cases of theft/fraud under investigation


CAS 484/11/2017



Forged signatures and fraud alleged as Hawks and NPA probe disputed will. 

The late Akbar Ali Ayob was a respected accountant and business advisor in Polokwane, the sort of man one would expect to leave his affairs in impeccable order. But his sudden death from a heartattack on 4 July 2013 triggered a bitter court battle over his estate which continues to this day – in the process, putting the reputations of several pillars of the local establishment on the line.

Contenders for the estate are, on one hand, his life-partner of 30 years Hilda Watkins and their three children (two at university, the youngest in matric) and on the other, are the deceased’s brother and sister, Mohamed and Halima Ayob. Mohamed is the imam of a local mosque; Hilda is a shop assistant working at one of the businesses owned by Akbar.

Although Ayob and his family lived a frugal and simple lifestyle, Hilda and the three children were well taken care of and the children received a good education. During his career as an accountant, Ayob accumulated a considerable fortune through a number of astute business ventures and investments in shares, unit trusts and properties. The exact value of the estate has yet to be disclosed due to the pending civil and criminal cases but is expected to amount to several million rand.


Magistrate to face criminal charges

Police confirmed that a case of fraud and misrepresentation of forged documents, allegedly involving a local magistrate, is being investigated. The magistrate recently presided over the bail application in a murder case which has sent shockwaves through the city.
The magistrate, who cannot be named as he has not officially been charged nor appeared in court, was allegedly involved in the fraudulent undersigning of a last will and testament of a local businessman who died in July 2013.
A relative of the deceased who presented Polokwane Observer with documentation last week confirmed that the family has opened a case of fraud at the Polokwane Police Station after a handwriting expert in the South African Police Service classified the signature on the testament to have been forged and a High Court ordered that the testament be declared null and void. The magistrate was allegedly appointed in 2013 as executor of the will which named the deceased’s brother and sister as only beneficiaries.
Other family members disputed the validity of the testament and approached the courts demanding that it be declared null and void with costs to the respondents in the case.
The complainants also approached a handwriting expert who was furnished with a copy of the testament allegedly signed by the deceased on 29 June 2013 six days before his death. In his report the expert stated that he also received specimen signatures of the deceased from the family in the form of hospital receipts, a college registration contract, security job card, security agreement and bank documents originally signed by the deceased.
“The will contains two disputed signatures of the testator. The original will was examined by me on 27 September 2013. I was requested to examine the disputed signatures of the deceased on the will and compare it with the known specimen,” the report stated.
In the opinion of the handwriting expert and based on all the discovered factual physical evidence he reported: “I reached a qualified and conclusive opinion. The disputed signatures of the deceased on the will respectively were in fact not created (beyond any reasonable doubt) by the author of the specimen signatures and are therefore all classified as forgeries.”
After the matter came before court on several occasions and the court heard the handwriting expert’s evidence, the Gauteng High Court in Pretoria ruled that the testament be suspended on 16 February this year which then left the family with no choice but to open a case of fraud against the magistrate.
Polokwane Police Head of Communications, Ntobeng Phala confirmed that the case of fraud and misrepresentation of forged documents is under investigation. “The investigating officer is still obtaining statements from involved parties. As soon as the investigation is complete, the docket will be sent to the Director of Public Prosecutions for a decision,” he said.