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                               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.



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


                      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 dear?” she gently asked, smiling as her heart began to fill with warmth.
“I think you’re bad luck!”


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 or faxed to (012) 843 2705. The editor reserves the right to
edit contributions.


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

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