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NATIONAL PROSECUTING AUTHORITY
LEGAL UPDATER
APRIL 2006 EDITION
Letter from the Editor
A special word of thanks to Adv Malherbe Marais SC for his tribute to Adv Jan Henning SC.
In this month’s edition, you’ll also find a discussion on the right to access to minors by Hilda Limpson
from SOCA.
We hope you enjoy the edition and look forward to receiving your contributions.
Until next month,
Kind regards Jannie Schutte and Sara Mitchley
We salute Jan Henning
He comes from good stock: a pedigree did it discreetly and that, of course, it
boerseun from a conservative could not always have been easy, for
Afrikaner home. Jan claims his mother Jan has always been a tall man.
gave him good advice: if you want to
stay out of trouble, always keep your Be that as it may, he definitely did not
eyes open and your fly closed. But we stay out of trouble. It is not in his
all know Jan: he didn’t listen. I am not nature to run away from trouble: he
saying he didn’t keep his fly closed. I goes for trouble hammer-and-tongs.
simply don’t know, but if he did, he He fought for his prosecutors and those
Volume 1 of 2005 Legal Updater Page 1 of 8
who opposed him will know that they Jan fought for us. Back at the office
were in a fight – if they survived to tell they all ask; who will look after us
the story. now?
Who will take his place? (Meaning,
Jan is and always was a formidable who can stand in his shoes)
prosecutor. Better still: Who wants to take his
He has a brilliant legal mind and is place?
known as a strategist of note in court.
His commercial knowledge is Advocates will remember Jan for the
legendary. following characteristics:
He has a name in the highest courts in His is fearless (that’s putting it
the country. mildly, op plat Afrikaans, hy vat nie
kak nie)
But first and foremost Jan is a Let me illustrate:
“mencsh”. The then Deputy Minister for justice, a
Jan is known and loved for his naïve gentleman from KZN and
wonderful sense of humour. erstwhile NP candidate, came to
He is our Herman Charles Bosman. address the Society of State Advocates
He is a man of Huisgenoot fame; once. He suffered from “short man
readers appreciated his humour even syndrome” and his IQ matched his
when he was still at university. height. Blissfully unaware of the
Because of his reckless, let’s call it calibre of at least some of his audience,
“social habits”, he did from time to the poor lad insulted our intelligence
time run out of money. That’s when by talking rubbish. Jan looked over his
he sold his writings to the likes of shoulder and shook his head in
Huisgenoot whose readers lapped up disbelief before openly erupting in
his fine humour and unique magic with helpless fits of laughter. The Minister
words. was deeply affronted, got off the stage
and walked right up to Jan. He was
I hasten to add that, in those days, foaming from the mouth when he
both his skills as orator and writer were stood right in front of Jan and wanted
strictly limited to Afrikaans. There’s to know:
no getting away from the fact that his “Sir, would you like to tell us why you
attempts to master the English are laughing so uncontrollably?”
language were either hilariously That was of course a mistake.
funny or heavy on the ear to the point Jan got up and rose to his full length,
of being offensive. Fortunately, Jan towering over a man no taller than
realized his shortcomings and even in Danny De Vito, and responded with
later years, Judges had to threaten him those cold blue eyes and the hint of a
with contempt before he would switch smile:
over to English. But then his “Sir, after listening to your nonsense, I
otherwise forceful arguments lost am laughing uncontrollably because I
much if not all of its impact and the don’t want to cry uncontrollably.”
Judge would soon admit his/her Suffice it to say, the entire audience
mistake and ask Jan to address the burst out laughing and, much to the
court or witness in the language in delight of his audience, the poor Lad
which he felt comfortable: which was never went back on stage to finish his
not English. pathetic speech. He prudently
defaulted on the evening braai as well.
Volume 1 of 2005 Legal Updater Page 2 of 8
Gentleman that he is, Jan apologized
for the Minister’s absence at the Braai! We’ll miss your leadership, your
He apologized for the Minister’s judgment, your vision and your warm
absence, said Jan, because, he so much camaraderie, Jan.
would have liked the Minister to join
us for supper, “want”, said Jan, “ek is As our friend and leader, we’ll never
nog nie klaar met die bliksem nie” forget you, Jan. You are too young to
retire but 1st you must get well and
Jan is also eternally loyal. thereafter I have no doubt you’ll make
He is bright (that is an a comeback of note, even if it is not to
understatement: he has a brilliant the NPS. We wish you a speedy
legal mind). recovery and above all: we pray that
He is fair. you don’t join the ranks of the Von
He is dedicated (another Lieres’e and the opposition: but who
understatement: he is incredibly shall we send against Goliath? A
hardworking). colleague suggested we make it truly
He thrives under pressure. entertaining, both visually and
He is a man of his word. otherwise: the battle of the short and
But most of all: he is a man with a the tall, so how about we brief Percy
heart: he is one of us. I am thinking Sonn to irritate you, just for old
of incidents where some of us strayed time’s sake?
and Jan was prepared to give them a
2nd chance. That is why I say, he is a Cheers, Jan and God bless.
“mensch”, a peoples’ person, and we
love him for that.
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ENFORCING THE RIGHTS OF A NON-CUSTODIAN PARENT
The right of access to a minor child parent deprived of access to the
is usually awarded in terms of a child.
divorce order.
Orders in respect of access to The benefits of instituting contempt
minor children are also made by of civil court proceedings are
the high court where a natural twofold. Firstly, the court can
father applies for access in terms of impose a penalty for disregarding
section 2 of the Natural Fathers of the court order and secondly, the
Children Born out of Wedlock Act court can compel the respondent to
86 of 1997,which came into comply with the order.
operation on 4 September 1998.
The disadvantage to many non-
Where an order was made granting custodian parents is that civil
the non-custodian parent access to litigation is usually very costly and
the minor child and the custodian therefore not a viable avenue to
parent unreasonably refuses enforce their rights.
him/her from having access to the
children there are both civil and A criminal charge of contempt of
criminal remedies available to the court is often the only option
Volume 1 of 2005 Legal Updater Page 3 of 8
available to those unable to afford subsection (2) shall be guilty
civil litigation. of an offence and liable on
conviction to a fine or to
The legislation, which is relevant to imprisonment for a period
criminal prosecution is the Judicial not exceeding three
Matters Amendment Act 55 of months.”
2002. Section 3 of this act
amended section 1 of the General Contempt of court charges can
Law Further Amendment Act 93 of also be made against the custodian
1962. The amendment came into parent for failing to comply with the
operation on the 17 January 2003. court order.
Section 1 of the General Law
Further Amendment Act (supra) Challenges:
states accordingly: Pursuing the criminal avenue is
however often a complication for
“ 1. Failure to comply with order non-custodian parents who are
of court relating to access to deprived of their rights to access.
children or to notify change of
address of parent having 1. SAPS:
custody of child- Complainants often face an uphill
(1) Any parent having custody, battle in simply having a docket
whether sole custody or not, opened and they frequently report
of his or her minor child in that police are reluctant to assist
terms of an order of court, them in this regard, due to the
who contrary to such order perception that it is rather a
and without reasonable domestic or civil matter.
cause refuses the child’s Furthermore some police members
other parent access to such are of the opinion that non-
child or prevents such other compliance with a court order in
parent from having such respect of access of the minor
access, shall be guilty of an children is not a criminal offence.
offence and liable on
conviction to a fine or to 2. Prosecutors:
imprisonment for a period
not exceeding one year or to It has been reported by
such imprisonment without complainants in certain instances
the option of a fine. that prosecutors do not perceive
(2) Any parent having custody, the offence as very serious; that
whether sole custody or not, there is gender bias in favour of the
of his or her minor child in custodian parent (usually the
terms of an order of court mother of the child) and they lack
whereby the other parent is the appreciation for the sensitive
entitled to access to such nature of these crimes. These
child shall upon any change decisions are potentially damaging,
in his or her residential even with explosive outcomes
address forthwith in writing when such cases are not awarded
notify such other parent of the attention they deserve.
such change.
(3) Any person who fails to This sobering thought should
comply with the provisions of provoke all role-players within in
Volume 1 of 2005 Legal Updater Page 4 of 8
the criminal justice system to state in a criminal charge,
examine whether there are any or, as in ordinary civil
shortcomings in the manner in matters on a balance of
which they are fulfilling their roles in probabilities.
the prosecution of such complaints. b) The second question raised
is whether there should be
3. Prosecuting: an onus on the respondent
Prosecutors are faced with a to prove that he did not act
number of challenges in wilfully in not complying with
prosecuting such cases. the court order or simply that
the respondent was
In S v Amas 1995 (2) SACR 735, expected to give a
although the court remarked that reasonable explanation for
there was no difference in the failure to comply with the
rights of access accorded to a non- court order.
custodian parent in the case of an The court was of the opinion that
award of sole custody and in the there existed a striking difference
case of custody simpliciter, it was between criminal and civil
held that the wording of section proceedings. In a criminal matter
1(1) of the General Law Further the accused has to contend with
Amendment Act (supra) was clear the “giant machinery” of the state,
and unequivocal and could not be whereas in a civil matter the
departed from. Refer also to W v S respondent only has the applicant
and Others (1) 1988 (1) SA 475 to contend with, who has similar
(N) where similar difficulties were resources at his disposal. It was
raised. However, the amendment held that it was not unfair or
of section 1 of the General Law unreasonable in civil contempt
Further Amendment Act 93 of 1962 proceedings to expect of an
by the Judicial Matters Amendment applicant, who was not the state, to
Act 55 of 2002 resolved the prove what needed to be proved on
difficulties in S v Amas (supra) and a balance of probabilities.
similar cases.
Some court orders relating to
In the matter of Laubscher v access of the minor children are
Laubsher 2004(4) SA 350 (TPD), vague. The order simply states that
the difficulties in enforcing a “reasonable access” is to be
contempt of court order relating to afforded the non-custodian parent
access was highlighted. A without defining what reasonable
distinction is drawn between civil means. The interpretation of
and criminal contempt of court “reasonable access” poses a
proceedings which is noteworthy difficulty for the prosecutor tasked
for prosecutors. with drafting the charge sheet. It is
Two questions were raised in the submitted that where the rights of
Laubscher-case in view of the fact access are not specifically defined,
that the same conduct may result in that each case is to be judged on
criminal or civil proceedings: its own merits. It is advisable that
a) Firstly, whether a private prosecutors discuss the matter with
applicant must discharge the their seniors, alternatively with a
onus of proof beyond a senior maintenance prosecutor
reasonable doubt like the from the SOCA unit.
Volume 1 of 2005 Legal Updater Page 5 of 8
order consisting of
Another challenge is posed when nothing more than an
orders prohibiting contact with the order prohibiting the
custodian parent and the children, respondent from
are made in terms of a protection „preventing the applicant
order granted under the Domestic from having contact with‟
Violence act. It complicates matters his or her minor child (i e
for prosecutors in dealing with the such as the „interim
two conflicting orders. protection order‟ issued
by the Cape Town
In Andrews v Narodien 2002(1) Magistrate‟s Court in this
SACR 336 (CPD) the court was matter) cannot in my view
confronted with the aforementioned legitimately be regarded
legal question and ruled as falling within the
accordingly. powers vested in the
The applicant had applied in terms magistrate‟s court by s
of the Domestic Violence Act 116 7(1)(h) of the Act (namely,
of 1998 for an order preventing the an order „prohibiting the
respondent from refusing him respondent from – (h)
access to their minor child for a full committing any other act
weekend every alternate weekend. as specified in the
Various interim orders under s5(2) protection order‟).
of the Act were granted and later Similarly, an interpretation
varied under s10(2) of the Act. The of the definition of
magistrate who made the order „domestic violence‟ in s 1
subsequently sent the matter on of the Act which would
review. One of the issues dealt with have the effect of vesting
on review, was whether the in the magistrate‟s court
magistrate had been entitled to the power to make „stand
make an order under the Domestic alone‟ orders granting
Violence Act,which regulated the access to a minor child
access of the minor child. The court and/or regulating the
in casu held that such an order fell exercise of such access,
outside the powers vested in a in circumstances such as
magistrate’s court. The judgment those in the present case,
reflects (page 352 b-f): is in my opinion clearly
“A proper analysis of the incorrect.”
structure of s 7 of the
Domestic Violence Act A further scenario which also raises
also supports the difficulties is when children refuse
conclusion that orders to see the non-custodian parent.
concerning access to Can the custodian parent really be
(„contact with‟) a minor held accountable? Should the
child, made in terms of s prosecutor decide to prosecute in
7(6), must be ancillary to a such a case?
protection order of the It is submitted that prosecutors
kind envisaged in s 7(1) of should use the child’s best interest
the Act. Moreover, in view as a guide in such cases. It is
of the express provisions submitted that such refusal be
of s 7 (6), a protection investigated by obtaining a social
Volume 1 of 2005 Legal Updater Page 6 of 8
worker’s report and that the child Conclusion:
be given a voice in the court
proceedings. The sensitive nature of these
offences should always be borne in
Article 12 of the United Nations mind when prosecutorial decisions
Convention of the Rights of the are taken.
Child (1989) obliges state parties to A thorough investigation is
assure a child capable of forming advisable and where necessary
his or her views, the right to freely assistance should be obtained from
express these views in all matters other role-players such as police
affecting the child and the views of officials, social workers, family
the child being given due weight in advocates or clerk of the domestic
accordance with the child’s age or violence section.
maturity. The convention was These matters should be handled
passed by the general assembly of as speedily as possible as delays
the United Nations in 1989 and was are often traumatic to the party
ratified by South Africa in July deprived of access.
1999. Our courts have begun to Finally, the interests of the child as
move towards allowing children’s enshrined in s28(2) of the
views to be heard in cases such as Constitution should never be
I v S 2000(2)SA 993 (C) where the forgotten. The decisions of
court held that the best interests of prosecutors, depending on the
children are served by giving circumstances, might have a direct
weight to their expressed impact / effect on the physical and
preference. See also Soller No v G emotional well being of a child.
and Another 2003(5) SA (W),
where the legal practitioner was
assigned to give voice to the child’s - Ms Hilda Limpson
wishes as envisaged by section Senior Maintenance Prosecutor
28(1)(h) of the Constitution. SOCA
----------oOo----------
ON THE LIGHTER SIDE
A woman’s husband had been slipping in and out of a coma for several months, yet
she had stayed by his bedside every single day.
One day, he motioned for her to come nearer. As she sat by him, he whispered, eyes
full of tears: “You know what? You have been with me all through the bad times.
When I got fired, you were there to support me. When my business failed, you were
there. When I got shot, you were by my side. When we lost the house, you stayed
right here. When my health started failing, you were still by my side….You know
what?”
“What dear?” she gently asked, smiling as her heart began to fill with warmth.
“I think you’re bad luck!”
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Volume 1 of 2005 Legal Updater Page 7 of 8
Editors note
You are once again invited to inform the editor of any interesting cases of which you are aware and to
forward research done on relevant topics. Your amusing anecdotes for inclusion in “On the Lighter
Side” will also be appreciated. You are also requested to draw our attention to problems being
experienced with, e.g. current legislation. We will endeavour to obtain input from the relevant officials
who will be able to address these problems.
Should you wish to contribute to the Legal Updater, you are requested to ensure that your contributions
reach this office no later than the 15th of each month for inclusion in that month’s issue. Contributions
can be e-mailed to jhtschutte@npa.gov.za or faxed to (012) 843 2705. The editor reserves the right to
edit contributions.
DISCLAIMER:
While every attempt has been made to ensure that the information contained herein is correct, the content is
merely a summary of the issues covered. Should the need arise, you are therefore encouraged to consult the
original source for further information. To this end, the library services at the DPP Offices or the NPA Head
Office can be contacted for further assistance.
Volume 1 of 2005 Legal Updater Page 8 of 8
