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11/07/2016

SABC: Motsoeneng's Manic Monday may alter the future of public broadcaster
2/27

Daily Maverick

Daily Maverick

Greg Nicolson

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Oscar Pistorius with his sister Aimee on the thirteenth day of his trial for the murder of his girlfriend Reeva Steenkamp at the North Gauteng High Court in Pretoria on March 19, 2014.

Aimee speaks out on Reeva


An American archaeology student unearths a skeleton during excavation works at the first-ever Philistine cemetery at Ashkelon National Park in southern Israel June 28, 2016 (Picture: REUTERS/Amir Cohen)

Bible mystery could be solved


© Copyright (c) Daily Maverick 2013, All Rights Reserved As Communications Minister Faith Muthambi is summoned to ANC headquarters on Monday, the pummelling of the SABC continued over the weekend. With Icasa’s ruling also due, Monday is a crucial day in determining the future of the public broadcaster and South Africa’s access to information. By GREG NICOLSON.

The SABC has always faced waves of criticism, but they turned into a storm two weeks ago when Thandeka Gqubule, Foeta Krige and Suna Venter were suspended for challenging the public broadcaster’s policy on protests. The SABC should cover the Right2Know’s protests outside its Auckland Park headquarters, they argued. They were allegedly suspended for their stance against the policy not to cover violent protests, even though Right2Know were not violent. That led to the resignation of acting CEO Jimi Matthews and widespread condemnation from civil society, the media, unions and the ANC, who criticised not just the suspensions but the SABC’s failure to perform its constitutional role.

Two weeks after the suspensions were handed down, the SABC appears to have taken a step back from the blind faith it put in its decisions under COO Hlaudi Motsoeneng, as the criticism reaches fever pitch and fresh allegations emerge.

According to trade union Solidarity, representing the three suspended workers, disciplinary hearings scheduled to begin on Monday have been postponed indefinitely. Solidarity on Sunday said the indefinite postponement was unacceptable and called for the disciplinary process to be scrapped. The union said it plans to approach the Constitutional Court this week to test the argument for banning coverage of protests on the SABC and in the interim Solidarity wants to go to the Labour Court to get an interdict stopping the disciplinary proceedings. Four other journalists are reported to be also facing disciplinary proceedings for speaking out about the SABC’s editorial policies and culture.

The SABC, and particularly its COO Hlaudi Motsoeneng, who is accused of having near-dictatorial control over the public broadcaster, face two key challenges on Monday.

In a surprise announcement last week, ANC communications subcommittee chair Jackson Mthembu called the SABC’s position on protests “censorship”, said senior management lacks the required skills, and announced the party had called Muthambi to a meeting on Monday at Luthuli House to explain herself. Muthambi is a key supporter of Motsoeneng and, despite consistent pressure she has remained in his corner. She has also defied Mthembu’s subcommittee in the past and despite the pressure from the ANC has been able to keep her ministerial post as she apparently continues to enjoy the support of the president.

Without the president taking action, there’s little the ANC can do beyond holding a meeting with the minister, but both Muthambi and the SABC could be undermined on Monday if a decision from the Independent Communications Authority of South Africa (Icasa) goes against them. Media Monitoring Africa, supported by other groups, challenged the SABC’s policy not to air footage of violent protests, which the public broadcaster defended by saying it would deter copycats and present a more positive image of the country. The minister supported the move, which was announced in May. Media Monitoring Africa argued it goes against the Constitution and the law.

If the decision goes against the SABC, Motsoeneng, seen as both the instigator of the SABC’s latest controversial policies and the most staunch defender, would lose face. It could be fatal for his job, which he has managed to retain despite a scathing report from the public protector, multiple court losses challenging his appointment, and repeated public gaffes.

As pressure on the COO continues, the Sunday Times this weekend reported how Motsoeneng went against the advice of an SABC board to push through a R167-million contract to extend the Uzalo series, created by a production company owned by President Jacob Zuma’s daughter Gugu Zuma-Ncube.

In a joint statement on Friday, the Chief Albert Luthuli, Desmond and Leah Tutu Legacy, Robert Sobukwe, Helen Suzman, Umlambo, FW De Klerk, Jakes Gerwel and Thabo Mbeki foundations noted their “deep concern” about the SABC. “In our constitutional framework, there is no justification for the public broadcaster to censor broadcasts unless with the expressed determination of the Independent Communication Authority of South Africa or the Broadcasting Complaints Commission of South Africa. To allow Mr Motsoeneng to forge ahead with the litany of his arbitrary decisions is to surrender our freedom!” they said.

The foundations noted the similarities with other government institutions where leadership failures and governance breaches occur and called for a judicial inquiry into the SABC’s adherence to the relevant laws.

The statement comes after senior SABC journalist Vuyo Mvoko described the complex challenges involved in currently working for the public broadcaster, following more scathing comments from the three suspended journalists and others who face disciplinary action for speaking out.

Over the weekend, the SA National Editors Forum gave its Nat Nakasa Award for courageous journalism to SABC journalists Mvoko, Gqubule, Krige, Venter, along with Lukhanyo Calata, Busi Ntuli, Jacques Steenkamp, and Krivani Pillay, who have all spoken out about the crisis at the public broadcaster.

The SABC faces legal challenges over its editorial policy and the appointment of its COO Motsoeneng. The Democratic Alliance has been taking the SABC to court and Icasa for years, while the Economic Freedom Fighters have been critical of the SABC’s allegedly biased political coverage.

Zwelinzima Vavi has been a leader in the latest criticism, but on Sunday a new critic emerged. The North West structures of unions looking to break away from Cosatu and form their own federation, under a process currently headed by Vavi, slammed the SABC, its treatment of workers, and the failure of the Communications Workers Union to stand up for them.

Even if the statement is from a grouping linked to the SABC’s harshest critics, it’s another sign that the tide is turning against the status quo at the public broadcaster. Monday will be crucial in determining its future. DM

27/05/2016

“Freedom means that you are unobstructed in living your life as you choose. Anything less, is a form of slavery”

– Wayne Dyer

Ruthless killings, innocents betrayed - this is the off-spring of genocide. The inescapable truth and after-effect of disarming society and leaving them defenceless.

The African National Congress is urging towards a politically motivated disarmament programme. Tightening up on Gun Control Legislation, law-abiding citizens are fearing their inability to protect themselves against the alarming crime rates in South Africa. R**e is a reality. Killing has become a causality. And our means of self-protection is slowly but surely, becoming prohibited…

Reasoning that Gun Control Laws will positively affect society is a blind statement made by those who do not realize the implication. Laws affect only one part of society. The law-abiding citizens. Whether laws are made stricter or not, criminals have never obeyed laws in the past and will not suddenly in the future. That’s the simple reality of the matter. What is supposed to protect the innocent, is now leaving them vulnerable. And what is supposed to control criminals, is now empowering their ability to act without fear of prosecution.

GOSA has come together to take a stand against suffocating society and putting a knife to our freedom. As according to the Bill of Rights, every single South African citizen has the right to life, and the right to be protected. Since our police force is hopelessly failing in the latter promise, we are left to our own devices. To our guns.

Do we use this for malicious intent? No. Do we use this for merciless slaughter? No. We use guns to protect ourselves and our loved ones. To fulfil in the inborn duty of providing as protector over our children and elderly. Why leave us powerless?

GOSA is taking a stand. This is OUR country, as well. This is OUR future at risk. And this is OUR voice.

WE ARE THE Gun Owners of South Africa!

27/05/2016

Empowering The Powerless

Every day you read of people being murdered in their homes for something as trivial as a few hundred rands or a cell phone. It seems that life, at least to some people, are pretty cheap and they will resort to anything to get what they want, even to murder. And, to add insult to injury, the gun control laws in SA makes it difficult to obtain a firearm by legal means. So what can the common man on the street do to protect themselves?

The best way to protect yourself in South Africa is to purchase a firearm and learn how to use it. Granted, gun control laws can be restrictive but it’s not impossible to procure a quality firearm in SA. The problem is that criminals are also arming themselves and the worst thing is that they’re not paying for it. There are many illegal fi****ms in South Africa and many of these fi****ms were once legally owned and licenced.

Fi****ms are regularly smuggled from countries like Mozambique and Zimbabwe which further compounds the problem. Since, it seems, that every criminal in SA own a gun, its only logical for the common man on the street, the man who only wants to protect himself and his family, to procure a firearm and to learn how to use it. Apart from many gun shops in SA, there are also many privately owned shooting ranges, staffed with skilled operators that can readily assist any novice.



Yes, violent crime in South Africa is a very real problem. Every day you read or hear about terrible heartache and families being destroyed by gun violence. And, in many ways, it seems that even the criminals rights are being protected under the law, even though these criminals gleefully take the rights away from their victims. With continuous police incompetence, what other choice do we have?

29/02/2016

National
Fi****ms licensing directive heads to court
BY WYNDHAM HARTLEY, 29 FEBRUARY 2016, 05:56

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A DIRECTIVE from acting national police commissioner Khomotso Phahlane that fi****ms owners who fail to relicence their fi****ms before their existing licences expire must forfeit their weapons to the state has run into legal trouble, and will be challenged in court soon.
Gen Phahlane issued the directive to all police stations earlier this month, instructing them that if a fi****ms licence has expired then the weapon must be handed in to the nearest police station, because "the owner is no longer in legal possession" of the firearm.
Gen Phahlane’s directive has attracted the attention of fi****ms legal specialist, attorney Martin Hood, who wrote to Gen Phahlane on February 9, complaining that the directive was in conflict with two court orders, and was also in conflict with the property clause in the Constitution. He confirmed on Sunday that papers had been prepared, and the legality of the directive would be challenged in court within the next four to five weeks.
"Until now, the South African Police Service (SAPS) has renewed expired licences and to now reverse this policy is inconsistent and capricious, and prejudices firearm owners who have a reasonable expectation of proper and objective administrative action," Mr Hood said. He drew Gen Phahlane’s attention to a court order from the High Court in Pretoria in June 2009 that held that all fi****ms licences issued before the adoption of the Fi****ms Control Act in 2000 remained valid until the court challenge to the act by the South African Hunters and Game Conservation Association had been resolved. The matter is still before the court.
Mr Hood also complained that there had been no consultation with the fi****ms stakeholders’ forum set up after Parliament’s police committee’s fi****ms summit in March last year. The lack of consultation made the directive vulnerable to being set aside by a court, he said. The directive also offended section 25 of the Constitution — the property clause — because the forced surrender was effectively a forced expropriation without compensation.
The property clause also states that no person may be deprived of his or her property arbitrarily.
In a second letter to Gen Phahlane, Mr Hood said that at one police station, fi****ms owners were being forced to sign forms cancelling their licences. "We would suggest the fact that one has to cancel the licence means the SAPS is not sure of the legality of its directive and needs to coerce the legal fi****ms owner into agreeing to have the licence cancelled. This conduct is … unlawful."
SAPS spokesman Hangwani Mulaudzi confirmed receipt of the letters, saying "the matter is receiving attention from SAPS legal services".
Francois Beukman, chairman of Parliament’s portfolio committee on police, said the committee would meet soon to try to find a solution.

19/01/2016

Is an unsigned electronic will valid?
Posted on 09 November 2015

“My father recently passed away. His will was drafted by a financial planner who e-mailed the final draft to him, but which he never signed. We found the email with the will attached but no further correspondence or documentation between the financial planner and my father regarding the content of the will or his wishes. Is this will valid?”

The Wills Act 7 of 1953 requires strict formalities to be complied with for a will to be recognised as the testator`s final will. These formalities include:

1. that the will is signed at the end thereof by the testator;
2. that such signature is made by the testator in the presence of two or more competent witnesses present at the same time and who signs the will in the presence of the testator; and
3. that if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator.

It is essential that the requirements for a valid will be met to convincingly prove that a will is, in fact, valid on the face value thereof and a reflection of the intention of the testator to be his final will and testament. If there is any doubt as to whether any of the formalities has been sufficiently met, our courts will need to be approached to condone non-compliance with the formalities for a valid will, before the deceased’s estate can be administered in terms of the will.

Our courts recently held that a court may, if it is satisfied that a document drafted by a person who has since died, was intended to be his will, order the Master to accept that document as the deceased’s will even though it does not comply with all the formalities for the ex*****on of a will.

As your father’s will was not executed (signed) in any manner (by himself or witnesses), a personal involvement by your father during the drafting process will need to be shown if it is to be argued that the document is indeed a valid will. As no communication or instructions conveying your father’s wishes could be found to prove that your father instructed the financial planner to incorporate specific wishes into his will, the requisite personal involvement element is missing, and as such it will be difficult to show that the will was concluded personally by your father – even more so because it was drafted by the financial planner. Accordingly, a court will probably not find that the will in fact contains the wishes of your father.

Where the will was not drafted by your father, the will must then at least have been signed in order to be valid. Here also, as your father’s signature was nowhere to be found on any part of the document, obtaining condonation of the will on the grounds of ex*****on would be highly unlikely as it cannot be shown that your father ever saw the final product, and no signature (or even partial signature) can be provided to prove his approval and ex*****on thereof.

To summarize, I believe in your case given the provided facts, it would be very difficult to prove that the electronic document represents the final will and testament of your father. This does not mean that in general you can never get condonation, but that to do so it will have to be shown that a will was either drafted (or that there was personal involvement in the drafting) or signed (in full or partially) by a deceased testator.

23/09/2015

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17/09/2015

Be wise and review your will regularly
Posted on 16 July 2015

I have a will which my wife and I had jointly drawn up by a friend just after we were married. I think the will is still ok, but I am not sure. We have three children now and I’m worried what will happen to them should my wife and I pass away or even be divorced. Should I let someone have a look at my will?

Firstly, and most importantly, it is vitally important that you do have a valid will, as without a valid will, one leaves the decision as to what must happen to your estate and to your children in the hands of others.

To determine whether your current will is valid will depend on a number of factors including whether the will was validly executed in terms of our law. Our Wills Act 7 of 1953 establishes five basic requirements for a will to be valid, namely:

1. The will must be in writing, whether handwritten or typed or a computer printed document.
2. The testator must have signed the will at the end thereof.
3. The signature of the testator must be made in the presence of two or more competent witnesses. Witnesses are considered competent if they are 14 years or older and are competent to give evidence in a court of law.
4. The witnesses must attest and sign the will in the presence of the testator and each other.
5. Should the will be longer than a single page, each page other than the page on which it ends must be signed by the testator.

If your will does not meet these requirements, it may not be valid. If it does,it may be valid, but you may also have to question whether it is still relevant. A will should not be something that is concluded only once in your lifetime, particularly where there are changes in one’s status or position in life eg. marriage, divorce, children, inheritances, etc. It is always highly advisable to revisit your will and update it to your particular circumstances with the help of an estate planning specialist. For example, if you have been divorced and did not change your will, it could happen that your ex-spouse inherits your entire estate upon your death in accordance with the will you executed when you were still happily married! Our law only gives a period of three months following a divorce for you to amend your will during which time any bequest to your ex-spouse will be deemed revoked. Following this three month period, any bequest will go to your ex-spouse if you did not change your will.

Another aspect to consider is who has been nominated as the executor of your will, the guardian of your children or the trustees of a trust to be established on your death for the benefit of for example your spouse and children. Usually testators tend to nominate friends or family for these positions, not knowing that such a role may disqualify them from inheriting if they too witness the signing of the will. Often, when making a will before there are children, testators will also not address issues relating to the legal guardianship or care of the children in the unfortunate event of the death of the parents. This could be a grave oversight particularly where minor children are involved.

When it comes to a bequest to your minor children, you may think that just bequeathing your estate to your children is the right thing to do, not knowing that minor children are unable to inherit cash or property, and that should you pass away, their bequests will fall to and be administered by the Master of the High Court’s Guardians Fund. The guardian or person caring for the minor children can claim maintenance from the Guardian’s Fund by way of an application. Upon reaching the age of majority, or getting married or in terms of a Court application, the money in the Guardian’s Fund can be claimed by your children. But again, one may ask – is it not dangerous that a young adult come into possession of his or her inheritance and potentially squander such recklessly? By stipulating a different inheritance age in your will or even providing for a testamentary trust to administer your assets on behalf of your children, you may help ensure that they are looked after in the future.

To answer your question. Yes, it is highly advisable that you have an estate planning specialist review your will and help ensure that it is appropriate to your specific circumstances and creates the necessary planning to avoid legal entanglements for your loved ones in case of your death.

17/09/2015

The previous owner did not pay. Can the municipality now cut off your electricity?
Posted on 16 July 2015

The municipality has notified me that it will disconnect my electricity supply because there are outstanding payments in respect of my property. However these outstanding amounts are not mine but belong to the previous owners from whom I bought the property last year. These accounts are nearly five years old! Can the municipality do this and cut off my electricity?

In the recent judgment of Stand 278 Strydom Park (Pty) Ltd v Ekurhuleni Metropolitan Municipality the applicant sought to obtain an interdict against the municipality preventing it from terminating the supply of municipal services to the property. The municipality wanted to terminate the services to the property because of 'historical debt' relating to the property ie. municipal debt in relation to property rates, taxes and charges for the provision of municipal services pertaining to all prior owners of the property.

In this case the court confirmed that a current owner (“current owner”) of property is not liable for arrear debt or charges on accounts held by previous owners of the property (“prior owners”) and a municipality is not entitled to terminate the supply of services to the current owner on the grounds that the prior owners of the property are indebted to the municipality.

The court however also confirmed the law as it currently stands - that a property can provide security for a municipal debt and that it may happen that a new owner's property is declared executable for the municipal debt of a previous owner and that the municipality can sell a property in ex*****on to recover such arrear debt. However the municipality must follow the following procedure:

• In the event that there is historical debt relating to the property, the municipality must first obtain a judgment against the party legally responsible for such debt i.e. the relevant prior owner.
• Only once such a judgment has been obtained and the prior owner fails to settle the historical debt as required by the judgment order, can the municipality proceed to obtain an order to declare the security in relation to that historical debt to be executable - the security being the property of the current owner.
• To obtain such an order against the property, the municipality must join all parties having an interest in the matter, such as the current owner and bond holders (with registered bonds over the property) in order to allow each party to state their interest and defend the granting of an order to execute against the property.
• The court will then have to decide whether the property of the current owner may be declared executable to recover the amount of the outstanding judgment owed by the prior owner.

Municipalities may accordingly not disconnect or threaten to disconnect any services or declare a property executable to recover historical debt against the property without obtaining a court order. If any such action is threatened it is advisable that you immediately consult with an attorney to assist you with defending your rights.

26/08/2015

Getting married in another country? Be wary of the fineprint!
Posted on 07 May 2015

As the world gets smaller and smaller, an ‘international wedding’ becomes a greater reality for many couples - from the beach wedding in Mauritius to the castle wedding in Ireland or the Tuscan wedding in Italy. This international marriage or ‘traveller’s marriage’ may seem romantic, but can quickly turn sour when questions regarding the matrimonial property regime of the parties are raised at divorce or death of a party. Which legal regime governs the marriage: the country where they where married, the home country of a spouse, or the country in which the couple reside? Left in the air, the romantic traveller’s marriage could very well turn into a wearisome ball and chain!

It is difficult to think of consequences such as death and divorce when just married and sipping champagne on the Champs-Elysees. The reality is that this is exactly the time when planning for such eventuality must be done, particularly given the complex consequences that could follow a division of estates when a marriage is terminated, especially where the parties are married without an antenuptial contract that provides clarity on their matrimonial property regime and division of assets.

In terms of the common law in South Africa the matrimonial property regime is determined according to the law applicable in the husband’s country of domicile at the time of the marriage.

Section 1(2) of the Domicile Act 3 of 1992 determines that:

“A domicile of choice shall be acquired by a person when he is lawfully present at a particular place and has the intention to settle there for an indefinite period.”

Thus the intention of the party is important to consider. But establishing intention can be difficult and subjective. Accordingly the Domicile Act continues in section 5 by stating that:

“The acquisition or loss of a person’s domicile shall be determined by a Court on a balance of probabilities.”

In simple terms this means that the Court will look at the surrounding circumstances to determine the intention of a party and eventually the person’s domicile.

As the domicile of the husband is the deciding factor when determining the applicable legal regime governing a matrimonial estate, the following aspects should be kept in mind:

• As a rule of thumb in determining domicile, one can apply the “home or holiday”-rule. If you are getting married when on holiday in another country, your country of origin will almost always decide the legal regime of your marriage. If you intend to make another country your home, your domicile will change and that new home-country will decide your domicile.
• Disputes relating to matrimonial property matters often arise because the parties did not enter into an antenuptial contract. When entering into an antenuptial contract, the contract must be registered in a specific place, and the place of conclusion and registration of the antenuptial contract will generally then determine the legal regime that is applicable to the marriage and estates of the parties.
• In South Africa, our law determines that where South African law applies to the marriage, in the absence of the married couple concluding an antenuptial contract which changes their matrimonial property regime, the couple will automatically be married in community of property. Thus when the parties decide to divorce the joint estate will in general be divided in equal undivided shares, irrespective of the parties’ respective contribution to the estate.
• In South Africa and several other countries a civil union can be concluded between two partners of the same gender and which bears many of the same consequences as a civil marriage. The obvious result is that the Domicile Act’s reference to a ‘husband’ can become problematic. Again, entering into an antenuptial contract can avoid any disputes regarding domicle arising.

In conclusion - the lesson to be learnt here is not so much the complexity of determining domicile and the applicable matrimonial property regime, but rather that when getting married, whether in your backyard or in Timbuktu, you should properly plan for your marriage, consult with an attorney and ensure that you have an antenuptial contract drawn up that determines the applicable matrimonial property regime that will govern your marriage in the event of its dissolution. Having done that, you can then enjoy your champagne with total peace of mind!

18/08/2015

Can landlords switch off your electricity?
Posted on 11 June 2015

You’ve just gotten home on a cold winter night and plan to sit snuggly in front of your heater watching a movie, when you realise - no electricity! Used to load shedding, you opt for a nice warm bath. But, alas the water is already cold. Infuriated, you pull out your phone to call your friend to complain about the state of affairs, when you notice the sms from your landlord informing you that he has cut off your electricity because you are in arrears with your electricity bill. But can he just do this?

It is a fundamental principle of our law that no man be allowed to take the law into his own hands. But what remedies are available to a tenant when a landlord has cut off his electricity - and on the other hand, what can a landlord do to limit his risk of a bad tenant just running up his electricity bill?

There is no rule in our law which grants a landlord the authority to cut the electricity supply of his tenant should that tenant be in arrears with his electricity charges. When a lease is concluded rights and obligations are created between the landlord and the tenant, which includes the right of the tenant to the undisturbed use and enjoyment of the leased property, and the obligation on the other hand to pay for rent, water and electricity.

If a landlord does take the law into his own hands and cuts off the electricity supply, the tenant has the right to apply to Court for a spoliation order showing that the tenant’s possession of the leased property was unduly interfered with or disturbed. The court can then order that the tenant be placed in the position he was before the landlord’s action, and the legal cost of the application will be for the landlords account.

But is the landlord without remedy? Does he remain responsible for outstanding rates and taxes on the property and if he can’t take matters into his own hands, how is he supposed to mitigate his losses?

In the recent case of Anva Properties CC v End Street Entertainment Enterprises CC the court allowed the termination of the supply of electricity to the leased property on the basis that the landlord had provided sound reasons justifying such termination and had laid a factual foundation for the relief sought. A landlord can therefore switch off a tenant’s electricity provided that the correct procedure is followed and a court order is obtained authorising the termination of the electricity supply.

If you are a landlord frustrated with a non-paying tenant, or a tenant deprived of his rights of occupation by an overzealous landlord, consult with an attorney or property specialist to find out what steps can be taken to redress the situation. The main thing is not to take the law into own hands, but rather use the mechanisms afforded by law to address the situation.

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