Banking Law: National Credit Act:

In the recent case of Bwanya v Master, the Western Cape High Court developed the law of life-partnerships further.

In the past, parties to a life-partnership had no rights, but, recently, the law started liberating itself from the old concept of “no rights” to, slowly but surely, granting parties to life-partnerships more rights.

In this matter, the Court had to consider whether the Intestate Succession Act (“ISA”) (regulating the law of inheritance in the absence of a will) was unconstitutional with regard to the silence of ISA with the right of life-partners to inherit from a deceased life-partner under circumstances where the was no will.

The Judge made a comprehensive comparative study of the legal development over the years on related issues and discussed, amongst others, the development in medical aid scheme dependents, Muslim-right marriages, recognition of same-sex life-partners and others.

The Court came to the conclusion that, if a permanent life-partnership relationship existed, then a surviving partner in such relationship may inherit from the deceased’s estate under circumstances where the deceased left no will.

The Court found the lack of the ISA to make provision for life-partners to inherent from a deceased life-partner, under circumstances where there is no will, is unconstitutional. The Court, furthermore, found that the ISA was therefore also discriminatory and that there is no justification for the discrimination in terms of the Constitution.

The Court, furthermore, found that the right to equality and dignity, is an important right and that, after the word “spouse” in the ISA, the words “…a partner in a permanent -opposite sex life partnership in which the partners had undertaken reciprocal duties of support” is to be read into the Act until and when the legislature amends the Act to, specifically make provision therefore, in an amendment of the ISA.

 

Conduct of domestic animals/pets:

It happens often that owners of pets, more specifically dogs, unintentionally, cause their dogs to break-out from enclosure, as a result of which a member(s) of the public may be attacked and injured by such dog(s).

In a recent decision of the Supreme Court of Appeal, the injured person sued the owner of dogs for damages as a result of injuries sustained where the dogs escaped into the street, attack and badly injured a passerby.

The owner/defendant defended himself by claiming that as he was not aware of the escaping of the dogs from his property (and therefore not aware until the incident occurred), he was not liable for damages. The specific defense of the owner was that, as somebody else may have caused the dogs to break loose, blame/liability does not vest upon the owner.

The Court, in its judgment in favour of the plaintiff/injured person, had the following to say:

“Many people in South Africa choose to own animals for companionship and protection. That is their choice, but responsibilities follow in its wake…the reality is that animals can cause harm to people and property in various ways. When they do so and the victim of the actions is innocent of fault for the harm they have caused, the interest of justice require that as between the owner and the injured party it is the owner who should be held liable for that harm…..If anything, with the growth of urban living, the vastly increased number of pet animals, especially dogs, in our towns and cities and the opportunities for harm that they pose, the view of where the interests of justice lie has been strengthened. People are entitled to walk our streets without having to fear being attacked by dogs and, where such attacks occur, they should in most circumstances be able to look to the owner of the dog for recompense”.

Owners of dogs should therefore take care in keeping their animals in safe enclosure.

 

 

 

 

Children’s rights of access to school:

In a recent matter, the Free State High Court had to consider the best interests of a child, where the child suffered (and still suffers) from “Behavioural impediments”. The child was a vulnerable child who had been diagnosed with “foetal alcohol syndrome” and suffers from cognitive impairments behavioural disorders and epilepsy.

The relevant school and the MEC, Department of Social Development, Free State, was taken to Court by the child’s curator, for the refusal to admit the child to a special-needs school. The respondents opposed the Court application on, amongst other, the basis that it was just to refuse the child access until and when the child had been “cured”.

The Free State High Court rejected the defense raised on the basis that the child was effectively being barred from attending school until the respondents were satisfied that she has been cured.

The Court was of the view that the respondents lost site of the fact that the child was growing up, was receiving therapy and was on medication. The Court furthermore found that there is no tangible evidence that the child was a danger to other learners. The Court, furthermore, found that the conduct of the respondents were against the core principles of the policy approved by the Ministry of Basic Education, and that the main focus was that all support must be given to a learner to facilitate access to an education without predicaments.

The Court, under certain conditions of continued treatment for the child, ordered the enrolment of the child to an identified special needs school in order to cater for her educational needs.      

Leave a Comment

Your email address will not be published. Required fields are marked *

Call Now ButtonCALL Scroll to Top

Professional and experienced lawyers

Request an appointment