Month: August 2017

Sexual Offences: No More Time Limit to Prosecute

“There are some crimes that do not go away” (quoted in the judgment below)“There are some crimes that do not go away” (quoted in the judgment below)

Victims of sexual abuse are often so deeply traumatised and intimidated that they either never report the crimes, or take decades to go to the police.

And that, until now, has been a major source of injustice in our legal system, because section 18 of our Criminal Procedure Act (CPA) provides that the right to prosecute crimes lapses after 20 years except for a specified list of serious offences – murder, treason, aggravated robbery, kidnapping, child stealing, rape/”compelled rape”, genocide/war crimes, people trafficking, and pornography involving children or mentally disabled people.

The end result has been that many desperate and vulnerable survivors of abuse have been deprived of their right to seek justice.  Fortunately that has now changed.  A recent High Court judgment involving accusations of sexual crimes over 28 years ago has had the result that, subject only to confirmation by the Constitutional Court, sexual offences can now be prosecuted at any time.

Allegations of habitual child sex abuse; and the law

• Eight male and female applicants, who at the time of the alleged offences were children between the ages of 6 and 15 years, accused the man in question of having habitually “indecently and/or sexually assaulted”  them in the 70s and 80s.
• In terms of the CPA, the offences had prescribed by the time that, between June 2012 and June 2015, the applicants had acquired “full appreciation of the criminal acts committed by the [man]”, and they then opened a criminal case and instituted a civil claim against him.
• The Director of Public Prosecutions declined to prosecute the cases (being barred by the CPA from doing so) and the applicants asked the High Court for help.
• Having analysed in depth both the legal position and the many deep-seated causes of “delayed disclosure” by victims, the Court held that “section 18 is arbitrary and irrational and accordingly is inconsistent with the Constitution and invalid, in relation to not only children, but to all victims, including adults” in respect of “the right to institute a prosecution for all sexual offences”.
• Although the declaration of invalidity was suspended for 18 months “in order to allow Parliament to remedy the constitutional defect”, the Court ordered that in the interim, i.e. with immediate effect, the 20 year time limit falls away for “all other sexual offences, whether in terms of common law or statute”.

The civil case against the accused’s deceased estate (he died shortly before the hearing) will now no doubt also proceed, with another Court having previously held in respect of civil prescription “that a victim of child or sexual abuse who acquired an appreciation of the criminal act during adulthood is able to sue the abuser within three years of gaining that appreciation”.

© LawDotNews

SARS and the Special Voluntary Disclosure Programme: It’s Deadline Time!

“The SVDP is meant for individuals and companies who have not in the past disclosed tax and exchange control defaults in relation to offshore assets” (SARS)“The SVDP is meant for individuals and companies who have not in the past disclosed tax and exchange control defaults in relation to offshore assets” (SARS)

If you aren’t sure whether or not you should apply for the Special Voluntary Disclosure Programme (SVDP), take advice immediately –

• The deadline is 31 August 2017, and you will need time to prepare properly.
• By the end of next month, SARS will have in place an automatic exchange of tax information with the revenue authorities of over 50 other countries (100 by September 2018) under the OECD’s “Common Reporting Standard”.

© LawDotNews

Verbal Agreements – The Property Perspective

“A verbal contract isn’t worth the paper it’s written on” (Samuel Goldwyn)“A verbal contract isn’t worth the paper it’s written on” (Samuel Goldwyn)

A recent High Court judgment is yet another reminder of how essential it is to comply with all necessary formalities when entering into any sort of agreement, particularly when dealing with the sale of property.

A fight over eviction and a property transfer attack

1. A property was transferred to a buyer in terms of a sale agreement in 2015.
2. The occupants of the property refused to vacate, and when the new owner applied for their eviction, they alleged that in 2007 they had verbally agreed with the original owners that, upon finalisation of several specified issues, they would enter into a formal agreement of sale to purchase the property.
3. They therefore asked not only for the eviction application to be dismissed, but also for the 2015 sale and transfer to the new owner to be set aside in order to transfer the property to their own nominated family trust.

What the Court said

• Any such verbal contract would, held the Court, be an “agreement to agree” which in our law certainly can be valid and binding, but generally only if it complies with all the formal and other requirements for validity applying to the “main” contract that they have agreed to enter into.
• The occupants’ problem was that a verbal agreement for the sale of immovable property cannot be valid, because this is one of the few classes of agreement which our law requires to be (a) in writing and (b) signed by both seller and buyer “or by their agents acting on their written authority”.
• The occupants were accordingly given 15 days to leave the property, and the original sale and transfer remain in place.

Three things to bear in mind

1. Remember that in our law you will usually be bound by what you agree to verbally; property sales are one of only a few specific exceptions to that principle.But as a general rule verbal contracts are best avoided.  They are a recipe for misunderstanding and dispute because people tend to hear only what they want to hear, and to then convince themselves that their memory is better than yours.  Worse, a dishonest opponent will have more wriggle room to get out of your agreement.  Rather have everything recorded in black and white, and signed.
2. Also tread carefully around “agree to agree” scenarios.  Our case law is full of costly disputes over “letter of intent” and “let’s agree now to enter into a full contract later” cases.
3. In particular, if you are about to embark on any form of property transaction, the lesson is, as always, to seek legal help before you agree to anything.  There’s usually a lot at stake when property’s involved, and many pitfalls for the unwary.

© LawDotNews