Cyber Bullying and Harassment in South Africa
What is bullying?
Any type of behaviour by one or more persons that cause either physical, emotional or psychological harm to another person or persons.
Examples of bullying include:
- Calling people names
- Hitting, punching and biting
- Spreading rumours
- Threatening or intimidating people
Cyber bullying is an extension of the above and it includes the use of computers or cell phones and social media. (Facebook, Twitter and Instagram) to embarrass, threaten or cause harm to another person.
Examples of how cyber bullying is perpetrated:
- Text messages
- Picture/video clips
- Emails
- Chat rooms
- Websites
Types of cyber bullying include the following:
- Harassment
- Involves the consistent sending of messages to a person via cell phone, it is usually repeated and directed at the person
- Direct harassment includes messaging, threats or bullying sent directly to the person and therefore follows that indirect harassment is when the person who is bullied has been subscribed to unwanted online services or dating sites.
- Impersonation or identity theft
- This occurs when someone breaks into an email or social media account and poses as that person and sends messages in an attempt to damage that person’s reputation or friendship.
- Outing
- Outing involves sharing someone’s secrets or embarrassing information online.
- Sexting
- Involves the sending of nude or semi-nude photos or videos and/or sexually suggestive messages.
Differences between cyber bullying and traditional bullying
- Cyber bullying is often anonymous and bullies can strike out at any time or from any place;
- The audience involved in cyber bullying is generally higher due to the fact that the technology is readily available and things can turn “viral” within a couple of minutes;
- The imagery in cyber bullying is often worse, due to the fact that the bullies can include videos and sound effects which can exacerbate the material in question.
Legal consequences of cyber bullying
- Human Rights
- Bullying, violates a number of human rights, these include the right to privacy, the right to human dignity, the right to freedom and security of the person.
2. Crimen Injuria
- Is the unlawful, intention and impairment or privacy of another person.
3. Assault (Does not need to be physical)
- Any unlawful and intention act which results in another person’s bodily integrity being impaired or which inspires a belief or fear that such action will be carried out.
4. Criminal defamation
- The unlawful and intentional publication of matter concerning another person which tends to injure their reputation.
5. Extortion
- An act when a person unlawfully and intentionally obtains some kind of advantage which may be used to that person’s disadvantage.
Legal consequences of sexting
Section 19 of the Criminal Law (sexual offences and related Matters) Amendment Act, 2007 provides that any person exposing or displaying or causing exposure or the display of child pornography is guilty of an offence.
So by sending or sharing nude or semi-nude photos or videos and/or suggestive messages via cell phones between children may therefore depending on the content, may also therefore fall within the ambit of the possession or creation, producing and distributing child pornography.
Any child who induces another child to take and send any photos of an illicit nature, shall be guilty of an offence.
What protection does one have to prevent cyber bullying?
The Protection from Harassment Act, 2011 provides comprehensive protection against electronic stalking. The Act transcends beyond the physical aspect of stalking, this is mainly because of the increase of cell phone users and internet users in South Africa.
If a court is satisfied that an incident of harassment is or has taken place, the court may issue an interim protection order at the start of any legal proceedings. In an effort to apprehend offenders, electronic service providers can now be forced to reveal details such as the name, email address or cell phone to which the IP address belongs.
Section 2 of the Act, sets out the process that is required for a Protection order and if the complainant is not legally represented the clerk of the Court must inform the complainant of the following
- The relief that is available to the complainant
- The right to lodge a criminal complaint against the person who is harassing the complainant for crimen injuria, assault, trespass, extortion
The application must be in writing and any supporting affidavits by people with knowledge of the matter may accompany the application. Once all the clerk of the court has received all the documents he/she must immediately submit the documents to the court.
Interim Protection Order
Once the court has received the application and supporting documents or any other additional evidence it deems fit (oral or written evidence).
If the Court is satisfied that there is prima facie evidence that:
- The respondent is engaging or has engaged in harassment;
- Harm is being suffered or may be suffered by the complainant as a result of the behaviour/conduct of the respondent if a protection order is not issued immediately;
- The protection granted will be in way of an interim protection order and must be served on the respondent by the clerk of the court, sheriff or peace officer;
- The interim protection order provides that the respondent must show cause on the return date (interim order – temporary order, this is because, often the court will only hear one side of the matter and makes the decision based on the evidence presented. The court then allows for the protection order to be valid from date the interim protection order until the date that the respondent gives their evidence);
- Once an interim protection order is given, the Clerk of the Court, must serve a certified copy and an original warrant of arrest (The warrant of arrest will be effected, should the respondent violate the interim protection order).
At the return date, the Court may upon hearing the respondent’s case, the Court may make the interim protection order, a permanent order or set it aside.
In Summary, cyber bullying is treated the same as physical bullying and is taken seriously by our Courts. A foreseeable problem would be, when reporting the matter to the police, the police are not sure how to deal with the matter or how to proceed with any evidence.
Our what to do list, should you be a victim of cyber bullying or normal harassment is the following.
- Keep all evidence, screenshot any comments, photos or unwanted material
- Print out the evidence as this will support any application or affidavit that will be submitted to Court
- Report the matter to the police and ensure that you get a case number
Useful numbers
| SAPS Emergency Services: |
10111 |
| Childline South Africa |
Report child abuse to Childline South Africa’s toll-free line: 0800 055 555 |
| GBV Command Centre |
Contact the 24-hour Gender Based Violence Command Centre toll-free number 0800 428 428 to report abuse |
| South African Police Service |
Report all cases of rape, sexual assault or any form of violence to a local police station or call the toll-free Crime Stop number: 086 00 10111 |
| Legal Aid South Africa |
Call the toll-free Legal Aid Advice Line 0800 110 110 for free legal aid if you who cannot afford one |
| Commission for Gender Equality |
Report Gender Discrimination and Abuse: 0800 007 709 |
| South African Human Rights Commission |
Call 011 877 3600 to lodge a complaint about human rights violations. |
| Domestic violence Helpline: |
Stop Women Abuse: 0800 150 150 |
| AIDS Helpline |
0800 012 322 |
CREDITORS, DON’T DISREGARD BUSINESS RESCUE SO SOON AS A WAY TO RETRIEVE YOUR MONIES.
CREDITORS, DON’T DISREGARD BUSINESS RESCUE SO SOON AS A WAY TO RETRIEVE YOUR MONIES.
It can be said that there has been an increase in business rescue processes in South Africa.
“Business rescue, as defined by the Companies Act 2008, aims to facilitate the rehabilitation of a company that is financially distressed by providing for the temporary supervision of the company and management of its affairs, business, and property by a business rescue practitioner”.
https://m.fin24.com/Entrepreneurs/Resources/Business-rescue-explained-20150119.
One of the main purposes of business rescue is to ensure that creditors be paid out what is owed to them – albeit less than the full amount of their claim.
Although many get disheartened by the decrease in the payback of the capital amount, the proceedings are almost identical but less extreme to that of liquidation proceedings.
“Liquidation is the process of bringing a business to an end and distributing its assets to claimants. It is an event that usually occurs when a company is insolvent meaning it cannot pay its obligations when they come due”.
https://www.investopedia.com/terms/l/liquidation.asp.
From a glance of the Companies Act, it suggests that although a business rescue plan may discharge a portion of the debt owed to concurrent creditors, it would be the same amount that one would get during the liquidation proceedings in any event. Therefore either way although you may retrieve less than the capital amount they theoretically do the same/similar jobs at the end of the day.
Section (1)(b)(iii) of the Companies Act states that a business rescue plan contemplates an outcome that would indeed be a better result for shareholders than it would have been during immediate liquidation.
However, just like many areas of law in South Africa, there has not been a real consensus by the courts whether the above can be stated as true.
In Oakdene Square Properties v Farm Bothasfontein, the Supreme Court of Appeal decided that it was not intended for the Act to promote an informal type of proceedings as a way of avoiding the consequences of liquidation.
If you are a creditor or a business owner looking for advice on business rescue and/or your options on the best returns possible for your money contact our offices on 031 003 0630 or email Charmaine@schwenninc.co.za.
Written by: Jessica Schwenn.
What to keep in mind when buying a property
Our latest blog explains what should, both the buyer and seller take into account before buying or selling a property. Our blog explains various terms in a contract of sale and who is responsible for the various costs involved, these include agents commission and legal fees.
WHAT REQUIREMENTS SHOULD A PURCHASER TAKE INTO CONSIDERATION BEFORE BUYING A PROPERTY?
WHAT REQUIREMENTS SHOULD A SELLER TAKE INTO ACCOUNT BEFORE LISTING OR SELLING THEIR PROPERTY?
WHAT TERMS AND CONDITIONS MUST APPEAR IN A SALE AGREEMENT?
For any information regarding the buying or selling of a property kindly contact us on 031 003 0630 or email Charmaine@schwenninc.co.za.
WRITTEN BY : BARRY TODD
What is racism in the workplace?
What is racism in the workplace?
In the news currently is the matter of a teacher that was suspended for posting pictures of children in her class, apparently segregated by race.
Another relevant case has just been decided by our Constitutional Court, where a man was dismissed for referring to a co-employee as a “swart man” – “Black man”.
How do you as an employer or employee regulate this in the workplace? Many refer to co-workers by race – is this racist and derogatory? It is a real challenge and in this political climate a recipe for disaster.
Think of Adam Catzavelos who posted a “personal” video on the beach and what happened to him and his business. He was fired from a family business and the business has, to our knowledge, not recovered. The ramifications are huge, especially with social media when things can go viral.
The case of Adam Catzavelos is very clear. His conduct was despicable. But what of the teacher who posted the pictures – was her suspension valid? The employee who was dismissed, was his dismissed fairly?
The Constitutional Court held that the CONTEXT of the words or action are what is important in determining whether conduct is racist or defamatory or derogatory. Was the context intended to be or apparently racist? Did it belittle the “victim” thereof? Our history of segregation and apartheid is of great relevance in this. Ordinary words or actions can be determined to be racist, based on the context and the heightened tensions around racism in South Africa.
The employee who referred to his co-employee as a “swart man” (black man) did so in anger – he allegedly burst into a meeting demanding that the black man’s vehicle be removed from his parking immediately or there would be consequences.
For employers, if such an incident occurs in your workplace, you need to carefully consider our current society tensions and test the context of the incident.
For employees and the general public, be aware of Government efforts to curb racism and hate speech and think carefully. Do not act in anger and measure your words.
If you are an employer – contact us to assist you to put the necessary policies and procedures in place for these situations. We can also assist in sensitising your staff to the actions which could be considered discriminatory or racist.
Contact : Charmaine Schwenn
Charmaine@schwenninc.co.za
031-003 0630 / 083 789 7638
PARENTING COORDINATORS – WHO ARE THEY AND WHAT DO THEY DO?
PARENTING COORDINATORS – WHO ARE THEY AND WHAT ARE THEIR POWERS?
The term Parental Coordination is a form of alternative dispute resolution that is used in high conflict divorce and custody matters that must be headed by either a mental health professional or a family law professional. This type of alternative dispute resolution is usually used either pre or post divorce proceedings.
The appointment of a Parenting Coordinator is done by either:
The order or agreement will list the powers and authority of the coordinator and this order is thereafter binding on all parties.
It is paramount to remember that the High Court is the upper guardian of children and therefore can make any decision if it is in the best interests of the child or children.
Although a parental coordinator is a ground breaking integral part of the court system there are however limitaions to keep in mind.
The first limitation is that a coordinator cannot be appointed unless there is some sort of agreement in place that provides for a framework that will assist the parties in how to comply with same.
If an order is not complied with then just as any other breach of a court order, an enforcement of the order can be to comit the person to prison for their contempt.
The second limitation is that the orders need to be in the best interests of the children which must include basic frameworks for things such as:
Therefore it is important to remember that the coordinator is a facilitator that makes sure that all the provisions of the order are complied with. They do not create the provisions as this would be considered going against the judicial oversight and tresspasses on the courts exclusive jurisdiction which is entrenched in section 173 of the Consitution. This can be seen as the Third limitation.
The fourth and last limitation is that:
The Courts therefore favour this approach because of the inherent jurisdiction that is enrenched in the Constitution.
It can therefore be said that we should get used to the increasing appointments of parental coordinators.
For any assistance in a divorce and mediation do not hesitate to call us on 031 003 0630 or 083 789 7638 or email us at charmaine@schwenninc.co.za.
What is FICA and why do we need it??
WHAT IS FICA and WHY WE NEED IT?
FICA stands for The Financial Intelligence Centre Act, which came into effect on 1 July 2003.
FICA was introduced to fight financial crime, such as money laundering, tax evasion, and terrorist financing activities. FICA brings South Africa in line with similar legislation in other countries.
FICA is essentially a means to ensure that an institution is required to ”get to know the client”. Financial institutions, like banks or other organizations such as attorneys firms or estate agencies do this by keeping proper records of their clients, requesting particulars and keeping a proper record of where the funds are coming from and where they are going.
It is therefore a legal requirement for financial institutions to FICA their clients in order to prevent financial crimes. The Act, places an obligation on the banks/attorneys firms to FICA their clients and it is a criminal offence for them not to do so.
The failure to FICA clients can lead to a prision sentence (ranging from 5 to 15 years) and or a fine (ranging from R 1 000 000 to R 10 000 000) depending on the offence, hence the
Some offences that are punishable under the Act, include, but not limited to;
For Companies and CC’s
Documents required for companies
Documents required for Closed Corporations
For Partnerships:
Documents required for Partnerships
For all your contract/property needs, contact our offices on 031 003 0630 or charmaine@schwenninc.co.za
WHEN IS THE RIGHT TIME TO GET A DIVORCE?
Divorce in dictionary
When is the right time to get a divorce?
As attorneys we often get asked by our clients when the right time is to get a divorce? It’s a difficult question to answer. We strongly recommend that you get the support and advice to make this decision from a trusted personal advisor, spiritual advisor, family member or friend.
We can help with the “legal” side of the decision – explaining the process to you, explaining the proprietary consequences of the divorce, as well as issues surrounding children and other financial consequences.
What we can say for sure, is that the process is always a “difficult” one, which inevitably gets worse before it gets better. For this reason, you need to ensure that you are resolved, and certain that you wish to take this decision. We will do all we can to ensure the smooth running of your matter and also that we assist with the constructive resolution of the matter. We try not “break things” more than they are already broken. This is not to say that we shy away from a fight, if there is one to be had – on the contrary, we will advise you which fights are worth the fight and we will make sure that your interests are protected in this respect. However, we believe that our jobs as attorneys are to help you keep the end goal in mind – and to help you get there as quickly and painlessly as possible.
If this is how you wish your matter to be handled and you are sure that you want a divorce, give us a call.
Charmaine Schwenn
charmaine@schwenninc.co.za
031-003 0630
GOOD NEWS FOR SINGLE PARENTS
GOOD NEWS FOR SINGLE PARENTS:
It was common practice that both parents of children had to submit their income and expenditure to the schools which their children attend.
This was most predominantly used when parents were applying for any exemptions for their children’s school fees.
This was the practice even if the parents were divorced or separated. This posed a lot of stress on the primary care giver of the child when paying for all the child/children’s educational needs in spite of their poor financial disposition.
The stress caused on the parents and children involved has and still is an epidemic that is widely felt especially by single headed households. It has especially become evident that these unneccesary and aviodable stresses filter down to these children.
It has been agreed that something needed to be done in order to give children their inherent right to education as enshrined in the Constitution and The Childrens Act, irrespective of their upbringing and the circumstances.
New law on school fee exemptions:
A new court ruling has ajudicated on this point in an effort to relieve the stress on the single headed households that are looking for the best education for their children.
As aforementioned, it was the status quo for both parents to submit their income and expenditure so that the exemption could be appropriately calculated, which was often at times very embarrassing for all parties envolved as parents would have to show that they were “too poor” to pay the required school fee prices.
The school governing bodies will now be given new and improved criteria in which to follow when they are deciding on which parents should be given such exemptions. This is to give regard to the childs right to good education instead of punishing the child due to the parents inability to pay their fees.
The law previously stated that both parents of a child, whether married or not were jointly and severally liable for their childs school fees. The Supreme Court of Appeal however has ruled that single parents applying for exemptions will be assessed on based on their own individual financial means.
How can one apply and what is the process of obtaining an exemption?:
The parent(s) would be required to contact the school and fill out the necessary paper work. This would include having to agree to sumbit to a credit check which will confirm employment details.
The court ruled that parents will not need to disclose their entire financial position to the schools when applying. This saves parents from feelingembarassed when making the application to the school. .
The School’s Governing Body and the principal of the school will then review the application and then decide whether or not to grant an exemption.
It is of importance to note that although South Africa is making great strides to protect the rights of children, it also sympathizes with parents taking into account the current prevailing economic times, the scarcity of jobs and unemployment as well as the ever increasing burden of single parent households.
For any advice and or assistance on school fee affairs, maintenance and other children related issues feel free to contact us on 031 003 0630 or charmaine@schwenninc.co.za.
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How to calculate maintenance for your children
Family Handprint
How do I calculate maintenance for my child?
Every parent is responsible for the maintenance needs of their children. These needs are however, the REASONABLE needs of the child.
One calculates the child’s share to the common household as one part per child and two parts per adult.
To put it in simple terms we use the following formula:
Parents gross income Childs Needs
______________________ X __________________
Total gross income of both parents 1
= the parents contribution toward maintenance.
One parent can apply to the Maintenance Court for a change in the order once there is a change in income of either of the parents.
This process is free and highly recommended, especially after a costly divorce where one parent wants to vary the court order made due to change of circumstance.
The Maintenance Court is a faster and cheaper option as opposed to the costly and lengthy wait for a High Court order variation. It also has jurisdiction in the following areas:
It is to be noted that Grandparents and other family members can, as a substitute, also be ordered to pay maintenance for the child if one of the parents cannot.
The reasonable needs of the child are calculated by looking at:
It therefore goes without saying that every child’s needs have to be decided upon on a case by case basis.
If you need any assistance or legal advice contact us at Charmaine@schwenninc.co.za or call us on 0310030630.
What is cyber bullying?
Cyber Bullying and Harassment in South Africa
What is bullying?
Any type of behaviour by one or more persons that cause either physical, emotional or psychological harm to another person or persons.
Examples of bullying include:
Cyber bullying is an extension of the above and it includes the use of computers or cell phones and social media. (Facebook, Twitter and Instagram) to embarrass, threaten or cause harm to another person.
Examples of how cyber bullying is perpetrated:
Types of cyber bullying include the following:
Differences between cyber bullying and traditional bullying
Legal consequences of cyber bullying
2. Crimen Injuria
3. Assault (Does not need to be physical)
4. Criminal defamation
5. Extortion
Legal consequences of sexting
Section 19 of the Criminal Law (sexual offences and related Matters) Amendment Act, 2007 provides that any person exposing or displaying or causing exposure or the display of child pornography is guilty of an offence.
So by sending or sharing nude or semi-nude photos or videos and/or suggestive messages via cell phones between children may therefore depending on the content, may also therefore fall within the ambit of the possession or creation, producing and distributing child pornography.
Any child who induces another child to take and send any photos of an illicit nature, shall be guilty of an offence.
What protection does one have to prevent cyber bullying?
The Protection from Harassment Act, 2011 provides comprehensive protection against electronic stalking. The Act transcends beyond the physical aspect of stalking, this is mainly because of the increase of cell phone users and internet users in South Africa.
If a court is satisfied that an incident of harassment is or has taken place, the court may issue an interim protection order at the start of any legal proceedings. In an effort to apprehend offenders, electronic service providers can now be forced to reveal details such as the name, email address or cell phone to which the IP address belongs.
Section 2 of the Act, sets out the process that is required for a Protection order and if the complainant is not legally represented the clerk of the Court must inform the complainant of the following
The application must be in writing and any supporting affidavits by people with knowledge of the matter may accompany the application. Once all the clerk of the court has received all the documents he/she must immediately submit the documents to the court.
Interim Protection Order
Once the court has received the application and supporting documents or any other additional evidence it deems fit (oral or written evidence).
If the Court is satisfied that there is prima facie evidence that:
At the return date, the Court may upon hearing the respondent’s case, the Court may make the interim protection order, a permanent order or set it aside.
In Summary, cyber bullying is treated the same as physical bullying and is taken seriously by our Courts. A foreseeable problem would be, when reporting the matter to the police, the police are not sure how to deal with the matter or how to proceed with any evidence.
Our what to do list, should you be a victim of cyber bullying or normal harassment is the following.
Useful numbers
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