FAMILY – Children – Family Advocate – Not conducting investigations if parents were not married, unless directed by order of court – Married parents can merely complete Annexure B – Unjustifiable limitation of rights to equality and dignity and rights of children – Declaration of constitutional invalidity of section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 confirmed.
Facts: Mrs TS and Mr BN had two children out of their romantic relationship. After their relationship ended, Mrs TS got married and she and her husband wished to relocate with the children to Australia but were unable to secure Mr BN’s consent. Mrs TS approached the High Court and sought an order directing the Family Advocate to investigate the best interests of her minor children and an order permitting Mrs TS to relocate to Australia permanently with the minor children, thereby varying the parenting plan. In issue was that the Family Advocate does not conduct investigations nor compile reports in matters involving minor children, if the parents have never been married, unless specifically ordered to do so in terms of an order of court.
Application: For confirmation of a declaration of constitutional invalidity of section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 (the Act) made by the High Court.
Discussion: The applicant’s argument that section 4 of the Act is unconstitutional in that it places an obstacle in the way of never-married parents and their children to access the services of the Family Advocate in the same way that married parents going through a divorce and parents who were married to each other are able to access those services when there is a dispute regarding the care and contact of their children; equality before the law and whether section 4 is discriminatory; and whether the impugned provision treats different groups of people differently.
Findings: The Office of Family Advocate cannot get involved without a court ordering it to be involved, whilst in divorce proceedings, it gets involved through the mere submission of Annexure B. Section 4 limits section 9(1) and 9(3) of the Bill of Rights and that the limitation is not justifiable in terms of section 36 of the Constitution. Section 4 also is an unjustifiable limitation of the rights of affected parents and children in terms of sections 10 and 28 of the Bill of Rights.
Order: The order of the High Court declaring section 4 to be inconsistent with the Constitution and invalid is confirmed to the extent that it precludes never-married parents and married parents who are not going through a divorce, and their children, from accessing the services of the Family Advocate in the same manner as married parents who are divorced or going through a divorce do. An additional provision is provided to the section while Parliament cures the defect.
TSHIQI J (unanimous)
CONTRACT – Exemption clauses – Theft of goods – Employee of handling company stealing goods – Exclusion of liability and public policy – Interpretation of clauses – Owner did not make special prior arrangements in writing – Condition precedent for handling company’s liability not met and so not liable – Nothing contrary to public policy when two contracting parties agreeing on exemption of one party from liability and leaving it to the party to take out an insurance policy.
Facts: Fujitsu is a dealer in computers and accessories and it concluded a distribution agreement with Schenker which operates as a warehouse operator and forwarding agent. An employee of Schenker used a truck to steal a consignment of laptops that Fujitsu imported from Germany. Fujitsu instituted an action for damages against Schenker. Schenker relied on certain clauses which it claimed exempted it from liability.
Appeal: The High Court found that the clauses did not exclude liability for theft. The Supreme Court of Appeal reversed that decision.
Discussion: Clause 17 of the Standard Trading Terms and Conditions which is headed “Goods Requiring Special Arrangements” and goods falling within the list in clause 17 or as goods of high-value; that Fujitsu’s contention that clause 17 does not cover intentional conduct such as theft by Schenker’s employees because that would be contrary to public policy is not supported by the authorities; and that there is nothing contrary to public policy with two contracting parties agreeing on exemption of the one party to the agreement from liability and leaving it to the other party to take out an insurance policy.
Findings: The making of prior special arrangements in writing by Fujitsu with Schenker before Fujitsu could send to Schenker goods falling within the list of goods given in the first sentence of clause 17 was a condition precedent to Schenker’ s liability for anything that happened to such goods including theft. Fujitsu did not make such any special prior arrangements in writing, which means that the condition precedent for Schenker’s liability has not been met or complied with and Schenker is not liable. The Supreme Court of Appeal’s decision was correct.
Order: The appeal is dismissed with costs.
ZONDO CJ (majority) at paras [80-
MATHOPO J (minority) at paras -
LABOUR – Discrimination – Culture – Employee pursuing calling as traditional healer – Testing positive for cannabis and not allowed on site until results acceptable – Alcohol and drug abuse policy – Requirement of testing reasonable given the working environment of refinery – Testing negative an inherent requirement of the job of all employees – An unfair discrimination claim (whether alleged to be direct or indirect) must fail – Employment Equity Act 55 of 1998, s 7(1).
Facts: Due to the nature of the business of oil and gas, PetroSA employees at the refinery are subjected to an annual medical assessment and ad hoc inspections for intoxicating substances. Testing is conducted in accordance with their Management of Alcohol and Drug Abuse at PetroSA Workplace Policy. Mr Marasi worked for PetroSA for 14 years and then took up a programme in traditional healing, after which he tested positive for cannabis. In the period he was not allowed on site he was on paid annual and sick leave.
Application: Mr Marasi alleges that he was unfairly discriminated against on the basis of his culture. He seeks an order that PetroSA unfairly discriminated against him; three month’s compensation for the period he was allegedly suspended without pay; damages in the amount of R250,000 for the impairment of his dignity, past medical expenses and emotional distress, and an order that that the Alcohol and Substance Abuse Policy be reviewed.
Discussion: Mr Marasi’s testimony about his calling as a traditional healer and his reliance on the Constitutional Court case of Prince on cannabis use; that it was the PetroSA’s case that Mr Marasi was not suspended and that no disciplinary proceedings were launched against him; and the testimony that if Mr Marasi was not alert or if he was under the influence, it would impact on the operations of the refinery.
Findings: The requirement of testing in the Policy is reasonable given the working environment of PetroSA and is in line with health and safety legislation applicable to the sector. The Employment Equity Act 55 of 1998 does not define the phrase “inherent requirement of the job”. The court accepts that testing negative in terms of the Policy is an inherent requirement of the job of all PetroSA employees given the nature of their work environment and the requirements of health and safety legislation. An unfair discrimination claim (whether alleged to be direct or indirect) must fail. Whether discrimination exists does not depend on the subjective feelings of various members of the affected group.
Order: The applicant’s claims are dismissed.
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