INTERNATIONAL CHILD ABDUCTION
Family – Children – International abduction – Resisting return to foreign country – Physical or psychological harm or intolerable situation – Found where family had fallen on hard times – Leading nomadic existence – Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996, article 13(b).
Central Authority for RSA v SC [2022] ZAGPJHC 700at [75]-[85]
Facts: The mother brought the three minor daughters to South Africa from Texas in the United States, with the father’s written consent. She then instituted divorce proceedings in South Africa and shortly thereafter notified the father that she did not intend returning to the USA with the children. The mother was a South African when married to her husband, a USA citizen who had been born in Mexico, and the children were born in the USA and are USA citizens.
Application: Under article 12 of Chapter III of the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (the Convention) seeking the return of the children to San Antonio, Texas.
Discussion: The purpose of the Convention; whether the children would be exposed to grave risk and/or psychological harm and/or be placed in an intolerable situation, as envisaged by article 13(b) of the Convention, should they be returned; where the children were habitually resident; that the family fell on hard times when the father lost his job; the picture painted by the mother of a family without roots who had resided in Mexico for most of the two years before departing to South Africa; the undisputed facts pointed to the family living mostly a nomadic existence; that the children have a factual connection to Texas, USA on a cultural, social and linguistic level; whether the children were wrongfully removed or retained in South Africa; that the mother has secure accommodation and employment in Gauteng, living on the same property as her parents; and the differing opinions of the clinical psychologist and the children’s curator ad litem.
Findings: The undisputed evidence established various intolerable features of the minor children’s family life immediately prior to their departure to South Africa. There was clear and compelling evidence that there was a substantial and severe risk that the children would be placed in an intolerable situation if they were returned to the USA.
Order: The application is dismissed. The children are not to be returned to Texas and the mother is granted leave to remain resident with the minor children in Gauteng. Directions are made for the payment of maintenance and for contact by video with the father.
DIPPENAAR J
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APPEALABILITY OF INTERIM INTERDICTS
Civil procedure – Appealability of interim interdicts — interdict to cease allegations pending an action for damages for defamation and injuria – Interests of justice — Superior Courts Act 10 of 2013, s 16(1)(a).
United Democratic Movement v Lebashe Investment Group [2022] ZACC 34 at [41]-[75]
Facts: Mr Holomisa is President of the United Democratic Movement (UDM) and wrote a letter to the President of the country describing corruption involving the Public Investment Corporation, the Government Employee Pension Fund and the respondent companies. The letter was published on the official website of the UDM and his Twitter account. Mr Holomisa also gave a television interview on the topic.
Appeal: The respondents approached the High Court for an interdict restraining the applicants from making or repeating any defamatory allegations defaming or injuring their dignity pending the institution of an action for damages for defamation and injuria. The interim interdict was granted and the applicants were granted leave to appeal to the Supreme Court of Appeal (SCA). There, in a in a three-two split the application was struck off the roll on the grounds that the interdict was interim in nature and therefore unappealable.
Discussion: The applicants’ contention that the order directing that the letter be taken down from the UDM’s website and social media accounts was final and definitive in effect; the submissions by the respondents that the order made by the High Court does not satisfy any part of the test in the Zweni case and the interim order was not appealable; the powers of the Supreme Court of Appeal to interfere with the decision of the High Court to grant leave to appeal; appealability of an interim order; justification for the granting of interim interdictory relief; common law defamation; whether the statement was defamatory; wrongfulness; truth and public interest; the balance of convenience; and the freedom of expression.
Findings: The respondents succeeded in establishing a prima facie right, injury actually committed and reasonably apprehended, and the lack of adequate alternative remedy. They were correctly granted an interim interdict. The court decides not to remit the matter back to the SCA, but to determine the appeal.
Order: The appeal against the order of the SCA striking the appeal from the roll is upheld. The order of the SCA is set aside and substituted with one dismissing the appeal against the order of the High Court.
MADONDO AJ (Unanimous.)
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COPYRIGHT ACT AND THE VISUALLY CHALLENGED
Constitution – Persons with visual and print disabilities – Access to works under copyright – Securing authorisation to convert works to suitable formats – Constitutionality of Copyright Act – Constitution, ss 9(3), 16(1)(b), 29(1)(a).
Blind SA v Minister of Trade [2022] ZACC 33 at [65]-[90]
Facts: There is a legislative process under way to amend the Copyright Act. However, this process has endured since 2015 when the Minister published a draft Copyright Amendment Bill. Aggrieved by the inordinate delay of the legislative process, Blind SA approached the High Court for an order declaring the Copyright Act unconstitutional to the extent that it unjustifiably limits the rights of persons with visual and print disabilities.
Application: For confirmation of the order granted by the High Court declaring the Copyright Act 98 of 1978 unconstitutional, to the extent that it limits persons with visual and print disabilities from accessing works under copyright that persons without such disabilities are able to access.
Discussion: The submissions by Professor Dean as amicus; the submissions by Blind SA that: the majority of published books are not published in formats accessible to persons with visual and print disabilities; that such persons must secure authorisation to convert books into accessible format copies and that this is often impossible to do; and that the Copyright Act is an insurmountable barrier that prevents works being locally available in various accessible format copies. The court discusses infringement and section 13 of the Copyright Act and the power, by way of exception, to permit of the reproduction of a work; the freedom to receive and impart information; and that those with print and visual disabilities suffer from a scarcity of access to literary works that persons without these impairments do not.
Findings: The requirement of authorisation in the Copyright Act would constitute unfair discrimination on the grounds of disability, and thus infringes section 9(3) of the Constitution. The enactment fails to take account of the effect of the requirement of authorisation upon persons with print and visual disabilities. The requirement of authorisation drastically limits access to literary works, impairs the freedom to receive information, and thus, in turn, to impart information. The requirement also limits the participation of persons with print and visual disabilities in the cultural life of their choice. The right of persons with print and visual disabilities to basic education, as set out in section 29(1)(a) of the Constitution, is thus plainly infringed.
Order: The order of the High Court is confirmed to the extent that sections 6 and 7, read with section 23 of the Copyright Act are unconstitutional, invalid and inconsistent with the rights of persons with visual and print disabilities to the extent that these provisions limit the access of such persons to published literary works, and artistic works as may be included in such literary works, in accessible format copies.
UNTERHALTER AJ (Unanimous.)
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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