kgomotsosekonya

[kgomotsosekonya]

Human Rights and Migration - Vol 1

What are some of the human rights challenges associated with the movement of large groups of immigrants today and Is the existing human rights treaty framework still appropriate for addressing these challenges?

“Western countries” – Countries that include but are not limited to Italy, Greece, the United Kingdom and Australia

Global south – Countries that include but are not limited to all African and Middle eastern counties

Introduction:

Immigration numbers to western countries has grown rapidly in the last 30 years which has in turn prompted “western destination countries” to become highly restrictive in their immigration policies. As a result of the upsurge in migration, countries began to enact migration management policies centred on deterring migrants. Many migrants began to rely on human smugglers to help them reach their desired country covertly and were subsequently exploited by human traffickers. The protocols of the United Nations Convention against Transnational Organized Crime were enacted for the express purpose of combatting human trafficking and the smuggling of migrants. This series of essays will argue that the existing treaty framework is no longer appropriate for addressing the issue of human trafficking and the smuggling of migrants.

Background information regarding Migration to western destination countries:

Globalization has allowed for easier movement of people around the world. People migrate to seek employment or for better educational opportunities, among other reasons. As the world's population grew so too did the demand for better opportunities. By the end of the 20th century there was a clear trend of job seekers from the Global South seeking employment in Western countries. This resulted in more regulations being put into place to regulate migration. From the beginning of the 21st century onwards economic downturns such as the recession of 2008, political unrest such as the Arab spring of 2011, more recently the war in Ukraine and the Taliban take over of Afghanistan and other forms of social upheaval which resulted in the surge of migration that hit its peak in 2015 and has continued to grow since.

The number of refugees and irregular migrants travelling to Europe grew from 173 million in 2000 to 244 million in 2015 and this number has continued to rise. Many coastal European countries found themselves inundated with migrants and refugees in 2015 as a result of the “migrant crisis.” Although migration to these states was not particularly high in comparison to other regions in the world, the increase in migrants and refugees to western countries caused a great deal of social and political backlash. The consequent rise in nationalism in western countries also contributed to a great deal of hostility towards migrants. Many states that already had stringent migration policies in place began to put policies in place that made legal immigration an even more costly, time consuming and odious endeavor. Due to harsh immigration policies more migrants began to migrate illegally often with the aid of human smugglers.

Figure 1 illustrates the spike in migrant arrivals into Italy and Greece by boat that occurred in 2015.

Defining and distinguishing migrants from refugees:

It is important to distinguish refugees from migrants as, although they have many similarities, they are entitled to different rights and protections under international law. The rights of all Refugees are protected by the Convention Relating to the Status of Refugees. The convention defines who qualifies as a refugee in Article 1A(2). A refugee is defined as “any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, Is outside the country of their nationality and is unable, or owing to such fear is unwilling to avail themself of the protection of that country, or who not having a nationality and being outside the country of their former habitual residence as a result of such events is unable or owing to such fear is unwilling to return to it.” Refugees are referred to as asylum seekers until their asylum claim is processed and they are legally recognized as refugees. Should a person be considered a refugee they are then subject to protection under Article 33 of the convention. This provision prohibits the expulsion or return of refugees to their countries of origin ('Refoulement’).

Migrants do not have the same layer of protection as refugees. Migrant are people who travel outside of a state which they are a citizen or national of, usually in order to find work or better living conditions. The rights of migrants are for the most part subject to the immigration policy of the state they are attempting to immigrate to. There is no specific treaty that codifies migrant rights however. A few have been put in place to attempt to address aspects of migration such as the rights of migrant workers and the rights of migrants that are smuggled or trafficked. Migrants by virtue of their humanity are also protected under universal human rights doctrine found in several treaties but predominantly the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).

Sources:

Bantekas I and Oette L, International Human Rights Law and Practice (3rd edn Cambridge University Press 2020)

UN General Assembly, United Nations Convention against Transnational Organized Crime : resolution / adopted by the General Assembly, 8 January 2001, A/RES/55/25

Tefera, M.M. Cross-Border Migration and Human Trafficking in Ethiopia: Contributing Factors, Policy Responses and the Way Forward. Fudan J. Hum. Soc. Sci. 12, 93–116 (2019)

Crawley, H., Düvell, F., Jones, K., McMahon, S., and Sigona, N. (2017) Unravelling Europe’s ‘migration crisis’: Journeys over land and sea, Policy Press

Avdan, N. (2012). Human trafficking and migration control policy: Vicious or virtuous cycle? Journal of Public Policy, 32(3), 171-205.

Figure 1: Crawley, H., Düvell, F., Jones, K., McMahon, S., and Sigona, N. (2017) Unravelling Europe’s ‘migration crisis’: Journeys over land and sea, Policy Press

UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137

UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/158

UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)

UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171

International Covenant on Civil and Political Rights, 999 UNTS 171, done Dec. 16, 1996, entered into force Mar. 23, 1976 [ICCPR], at Art. 6(1).

[kgomotsosekonya]

Involuntary confessions and vulnerable suspects - Volume 4

During an interrogation the police are in a position of great power over suspect who are usually alone and unaware of all of their rights. This power imbalance has the tendency to have an adverse effect on a person, psychologically. This is most pronounced when police deal with vulnerable witnesses. The PEACE method has been successfully implemented with regard to interviews with most adults, however the interviews of vulnerable suspects have not been as successful. It has been found that vulnerable suspects are more likely to submit involuntary confessions. This is often as a result of mental deficits, youth and interrogators that fail to take these kinds of factors into account. 

The methodology of the PEACE method makes no specific mention of how officers are to adjust their interviewing approach when interviewing minors and/or people with mental health disorders. Indeed, when creating the PEACE method the needs of minors and people with mental illnesses were not specifically addressed. Vulnerable witnesses have a wide array of complex cognitive needs. Studies conducted with mentally disabled adults interviewed using the PEACE method, illustrated the unique needs of such people and the importance of adjusting interrogation approaches accordingly. 

It was found that the subjects made more mistakes when asked questions, as they often had difficulty concentrating and interpreting the questions. Further, vulnerable suspects may not always understand the questions being asked nor the importance or implications of their responses. Suggestibility refers to the degree to which a person is inclined to accept and act on the suggestions of others. Child suspects have been found to be particularly suggestible and therefore are at significant risk of offering false confessions. Officers that pose leading or suggestive questions may influence a child’s statement. The PEACE method does not make mention of how best to guard against the suggestibility of children. The cases of the central park five and Michael Crowe, mentioned in volume 2, are examples of situations where officers did not take vulnerability into account, which resulted in several miscarriages of justice.

It has become clear that open or probing questions are the most appropriate when interviewing suspects. Although police that follow the PEACE method have for the most part followed the PEACE methodoloy some have been found to slide back into conducting interviews using closed questions. When vulnerable suspects are interviewed this may be particularly problematic. There are positive byproducts of the PEACE approach that are not an explicit part of the guidelines though. As officers are encouraged to build a rapport with their suspects it is often necessary to adjust their interviewing style to engage with vulnerable suspects. A study found that vulnerable suspects were more willing to give detailed information if they fully understood the question, were allowed to give their full and uninterrupted answers, and the questions were posed to them in a manner that did not undermine their dignity.

In conclusion Police have historically conducted interrogations in a manner that was not ultimately conducive to truth finding, often due to public pressure for cases to be solved quickly. The Reid technique, while technically effective, has been heavily criticized for causing involuntary confessions and other miscarriages of justice. It is clear that there is a direct correlation between certain types of interrogation tactics and involuntary confessions.  The creation of the PEACE technique and its successful implementation in several legal jurisdictions definitively shows the  impact of that interrogation techniques can have on the types of confessions a person may enter.

Sources:

1. Forensic Psychology: Crime, Justice, Law, Interventions, edited by Graham M. Davies, and Anthony R. Beech,

2. John Wiley & Sons, Incorporated, 2017. ProQuest Ebook Central

3. Easton S. (2014) False Confessions. In: Silence and Confessions. Palgrave Macmillan, London.

4. Bowles, Peter & Sharman, Stefanie. (2013). A Review of the Impact of Different Types of Leading Interview

5. Questions on Child and Adult Witnesses with Intellectual Disabilities. Psychiatry, Psychology and Law. 21. 205-217

6. The Psychology of False Confessions: Forty Years of Science and Practice, First Edition. Gisli H. Gudjonsson

7. John Wiley & Sons Ltd. Published 2018 by John Wiley & Sons Ltd.

8. Oxburgh, Laura & Gabbert, Fiona & Milne, Rebecca & Cherryman, Julie. (2016). Police officers' perceptions and experiences with mentally disordered suspects. International Journal of Law and Psychiatry

9. The Psychology of False Confessions: Forty Years of Science and Practice, First Edition. Gisli H. Gudjonsson

10. The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60), ss 76 and 78

11. Dehaghani, Roxanna and Bath, Chris 2019. Vulnerability and the appropriate adult safeguard: examining the definitional and threshold changes within PACE Code C. Criminal Law Review 3 , pp. 213-232.

[kgomotsosekonya]

The PEACE approach - Volume 3

PEACE stands for Planning and Preparation, Engage and Explain, Account, Closure, Evaluation. The model was created in 1992 by law enforcement officials in England and Wales as an overhaul and improvement of method that were in use, which were identical to the Reid technique. It was created as a result of the proven correlation between psychologically coercive techniques and false confessions. The PEACE model is considered a successful alternative to the Reid technique and has since been adopted by the law enforcement branches of other legal jurisdictions.

The PEACE method is a five-stage interrogation process. Investigators are encouraged to build rapport with the suspect. This is widely viewed as the best indicator of whether an interview is successful or not and as it allows suspects to provide their account of events uninterrupted. Investigators then present the suspect with any evidence of inconsistencies or contradictions. This method, in contrast to the Reid technique aims to obtain a full account of events from a suspect rather than just seeking a confession. The PEACE method eschews the use of deceptive information to overwhelm suspects and discourages investigators from presuming a suspect's guilt.

Stages of the PEACE Method:

 1. The Planning and preparation stage Investigators are required to gather all the facts about the incident under investigation and determine who they will need to interview and why. 

2. At the Engage and Explain stage of the interview, officers are to establish a rapport with the suspect. Interrogators are encouraged to show concern for the subject's welfare by asking how they prefer to be addressed, how much time they have available to be interviewed and to be compassionate and reassuring if the suspect seems anxious or nervous.

3. The Account stage of the interview is the point at which the officer begins to clarify and challenge the information given. The officer will attempt to obtain a full uninterrupted account of the events from the suspect. Once the suspect has done so, the officer will ask follow up questions which allow them to expand and clarify their own account of events. Where necessary, this is done by challenging contradictory aspects of the suspects story. 

5. At the Closure stage the officer summarizes the suspects account of what happened in order to ensure there is a mutual understanding about what has taken place and verifies that they have covered every detail pertaining to the crime.

6. The Evaluation stage involves an evaluation by the interviewer on whether they successfully gleaned all the insights they had hoped to from the interview. They will review the status of the investigation in the light of any new information that was received and reflect on whether the interview was a success or not and which parts of their conduct could be improved on in future interviews. This type of information gathering approach is a far better tool for the ends of truth seeking as there is less of a chance that the officers’ own ideas and opinions will influence the interview and its outcome. The PEACE methods effectiveness depends on how well trained the interviewers are, as well as whether its instructions are actually followed. It has been found that the success of the PEACE method is as result of officers showing acceptable levels of competence during interviews and having for the most part committed to following the instructions correctly. This has enabled them to obtain comprehensive accounts and/or full confessions from suspects.

Sources:

Hayley M. D. Cleary and Todd C. Warner (2016),  Police Training in Interviewing and Interrogation Methods: A Comparison of Techniques Used With Adult and Juvenile Suspects Vol. 40, No. 3, 270–284 Law and Human Behavior

 Easton S. (2014) False Confessions. In: Silence and Confessions. Palgrave Macmillan, London

Forensic Psychology : Crime, Justice, Law, Interventions, edited by Graham M. Davies, and Anthony R. Beech, John Wiley & Sons, Incorporated, 2017. ProQuest Ebook Central

 The Psychology of False Confessions: Forty Years of Science and Practice, First Edition. Gisli H. Gudjonsson 2018 John Wiley & Sons Ltd. Published 2018 by John Wiley & Sons Ltd

[kgomotsosekonya]

The Reid Technique - Volume 2

The evolution of interrogation Methods:

An important thing to take note of with regard to Interrogation strategies is that those with high confession rates are more likely to have widespread use. Unfortunately, such strategies have bad track records of eliciting confessions from people regardless of guilt. Although interrogators may not specifically name their method of interrogation, the REID method or elements thereof are often. Below is a systematic rundown of what actions an interrogator, using the Reid technique, will be taking in order to extract a confession.

The Reid technique is a high confession yield technique that has secured convictions of suspects in many different legal jurisdictions worldwide. It is an accusatory method of interrogation that focuses on breaking down the suspects resistance and instills in them a desire to confess. It is a method of interrogation that makes use of psychological manipulation through “trickery and deceit.” Guilty and innocent suspects subject to interrogations that use tricks and deceit have been found to more willingly confess. This is despite the fact that no research suggests that there are any interrogation strategies that motivate only guilty suspects to make confessions. Despite this, the technique is still in use worldwide and has been found on several occasions to incite involuntary confessions.  

The Reid technique consists of nine steps: A suspect is first confronted with evidence of their clear and apparent guilt. They are told of the benefit of telling the truth. They are then offered their first opportunity to explain why the offense took place (step 1). The interrogator will then try to shift the blame from the suspect to someone else or to some other set of circumstances that caused the suspect to commit the crime. This develops a theme in the interrogation containing reasons that will psychologically justify or excuse the crime (Themes may be developed or changed to find one to which the accused is most responsive) (step 2). The interrogator will work to minimize the frequency of suspects attempts to deny what they are accused of until they stop trying (step 3). 

The suspect will often at this point provide reasons why they did not or could not commit the crime. Officers are encouraged to guide the suspect toward the acknowledgement of the crime that has been committed (step 4). Officers are encouraged to reinforce the rapport they have built with the suspect in order to ensure they remain receptive to manipulation (step 5). Practice has found that by this point most suspects will become quieter and will listen to the officer, rather than continue to speak in defense of themselves. It is at this point officers are encouraged to move the theme of the discussion toward offering alternatives. If the suspect cries at this point, the officers are told to infer guilt (step 6). 

The “alternative question,” that officers will then give the suspect is comprised of two choices on how they wish to accept guilt for the crime. The officer poses scenarios on how and why the crime occurred and what part the suspect played in it; one option is more socially acceptable than the other. Though the suspect is expected to choose the easier option whichever alternative the suspect chooses, guilt is admitted. At this point in the guideline there is an attempt to mitigate the apparent risk of involuntary confessions inherent to this technique. The officer is reminded that the suspect always had the option to maintain their innocence (step 7). The officer is then encouraged to indirectly convince the suspect to repeat their admission of guilt in front of witnesses and to “develop corroborating information to establish the validity of the confession” (step 8). The guidelines only direct the officer to document the suspect’s interview in the final step. They are not directed to record the entire interview but are instructed to make a recording of the suspects admission or confession. This can be done by way of a recorded statement (audio, video, or written) prepared by the suspect (step 9).

The Reid technique is faulty both in execution and in substance. Step 1 makes the assumption that “two denials imply guilt”. This assumption about how one detects deception lacks empirical testing. Step 8 does not sufficiently guard against confirmation bias of interrogators. Interrogators run the risk of forming an incorrect narrative of the offence based on their own leading questions. In addition, lying to the suspect about what evidence investigators have in their possession (bluffing) may not have the intended effect of prompting a confession. This has had the effect that a suspect was made aware of the fact that the investigators were bluffing to incite a confession. Finally and crucially, the Reid technique has been found wholly unsuitable for the interrogation of vulnerable suspects. Two of the most famous examples of the false confessions in the United States of America are of the central park five and Michael Crowe, mentioned above. All subjects that confessed were vulnerable youths interrogated by way of the Reid technique. These confessions also happened during the course of lengthy interrogations designed to mentally exhaust the suspect. There is no prohibition against such practices in the Reid technique. These are a few of the many factors that lead to UK police developing the PEACE method. 

2. High profile Controversies that led to the creation of the peace approach in the UK: 

In the 1970s there were a series of high-profile miscarriages of justice in the UK: The troubles era cases of the Guildford Four (1974), The Maguire Seven (1976), The Birmingham Six (1975), and Judith Ward (1974). The Guilford four (Paul Michael Hill, Gerard "Gerry" Conlon, Patrick "Paddy" Armstrong and Carole Richardson) and the McGuire seven (Anne Maguire, Patrick Maguire, Patrick Maguire, Vincent Maguire, Sean Smyth, Patrick O'Neill, Patrick "Giuseppe" Conlon) were both wrongly convicted in 1974 and 1976 respectively for the IRA bombing of the Gilford pub on the 5th of October 1974. their convictions were overturned, and they were all released after having served between 15 and 16 years in prison. This case involved another high-profile example of coerced-compliant false confessions. All four of the Guildford defendants offered false confessions after experiencing coercive interrogations.  Widespread public condemnation of the polices’ coercive interrogations was instrumental in the quashing of the convictions of the Guilford four and the McGuire seven.

The Birmingham Six (Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker) were wrongly convicted in 1975 for the Birmingham pub bombings. The Birmingham six were allegedly subject to protracted interrogations without break as well as threats, deprivation of food and sleep and other forms of psychological torture. As was the case in Guilford four and McGuire seven cases, efforts of the community to remedy this miscarriage of justice resulted in the success of the appeals of the Birmingham 6 in 1991. Judith Ward was wrongly convicted in 1974 for the M62 coach bombing. Judith who suffered from mental illness, was subjected to an extremely disordered interrogation in which most of her statements were forged. Her confessions were also another example of a coerced-internalized false confessions. Judith's conviction was overturned in 1991 when her case was referred to and quashed by the Court of Appeal.

The public condemnation of the weaknesses in the criminal justice system, exposed by these cases led to the creation, in 1991 of a Royal Commission on Criminal Justice. The recommendations of the Royal Commission led to the creation of the Criminal Appeal Act of 1995 which then established the Criminal Cases Review Commission. These cases also influenced the creation of the PEACE model of questioning suspects.

Sources:

The Psychology of False Confessions: Forty Years of Science and Practice, First Edition. Gisli H. Gudjonsson 2018 John Wiley & Sons Ltd. Published 2018 by John Wiley & Sons Ltd.

Michael McGrath, in Forensic Victimology (Second Edition), 2014

Joeann M. Salvati, Shannon C. Houck, Examining the Causes and Consequences of Confession-Eliciting Tactics during Interrogation, Journal of Applied Security Research, 10.1080/19361610.2019.1621508, 14, 3, (241-256), (2019).

Bradford J. Beyer, James Herndon, Interrogative Specialists and False Confessions: Debunking the Con Artist Myth, Journal of Police and Criminal Psychology, 10.1007/s11896-018-9263-3, 33, 3, (233-243), (2018).

Inge Sebyan Black, Lawrence J. Fennelly, in Investigations and the Art of the Interview (Fourth Edition), 2021

Forensic Psychology : Crime, Justice, Law, Interventions, edited by Graham M. Davies, and Anthony R. Beech, John Wiley & Sons, Incorporated, 2017. ProQuest Ebook Central

R. v. Anne Maguire, Patrick Joseph Maguire, William John Smyth, Vincent Maguire, Patrick Joseph Paul Maguire, Patrick O'Neill and Patrick Conlon (1991) 94 Crim. App. R. 133

R. v. McIlkenny, Hunter, Walker, Callaghan, Hill and Power (1991) 93 Crim. App. R. 287

R. v. Judith Ward (1993) 96 Cr.App.R. 1

Hayley M. D. Cleary and Todd C. Warner (2016),  Police Training in Interviewing and Interrogation Methods: A Comparison of Techniques Used With Adult and Juvenile Suspects Vol. 40, No. 3, 270–284 Law and Human Behavior

Criminal Appeal Act of 1995 c 35

[kgomotsosekonya]

The Impact of interrogation techniques: False Confessions - Volume 1

Debunking assumptions and Definitions

During interrogations the primary role of police is that of a truth seeker. There are several psychological factors involved in the interrogation process, with regard to the suspect, that must be considered. These factors may determine the risk of a suspect giving a false confession. This series of articles will prove the causal link between certain interrogation tactics and the occurance of false confessions. The main aim of these articles are for you to be aware of what may await you if you unfortunately find yourself in an interrogation room. The best tactic though is the remain silent and request you right to representation or at least to speak to someone who can arrange an attorney for you.

2. Deception detection by police:

The characteristics of deception should be considered as they are often what are taken to equate to guilt in the eyes of police. Deception is defined as the successful or unsuccessful deliberate attempt without forewarning to create in another a belief, which the communicator considers to be untrue.  It's been found that people lie for a number of reasons including for personal advantage, to avoid punishment, to undermine their involvement in a crime, in order to avoid possible conviction and to make a positive impression on others and/or protect their public image. 

In their role as truth seekers police have been trained to spot cues to deception. There are several cues that police have determined to signify deception such as grooming gestures, self-manipulation, smiling, sped up or slowed down speech, hesitation, stuttering or failure to maintain eye contact. It has, however been found that there are no verbal, nonverbal or physiological cues that conclusively determine deception. It's important to consider that different people act differently under stress. Children, neurodivergent people and people from different cultures may exhibit cues that the police may misinterpret. Police in their truth finding endeavors have been found to rely on invalid cues, this phenomenon has been labeled the wrong subjective cues hypothesis.

Although most police officers are under the impression that they are superior lie detectors the data on whether police officers are better than laypeople at detecting deception suggests otherwise.  Police are only marginally better than the average layperson. Their accuracy rates in terms of lie detection fell between 45 and 60%, which is very similar to laypeople.  This finding may be influenced by the fact that findings in a controlled laboratory setting have immersion breaking elements present that are not there in real interrogation environments, such as watching a video recording of a “suspect” rather than having a face-to-face interrogation. 

3. Involuntary confessions:

An involuntary confession is an admission made by an individual who has been accused of a crime who confesses based on a threat, fear, torture or a promise. As interrogators no longer have leave to physically torture evidence out of suspects, involuntary confessions tend to come about as a result of what is subjectively a form of psychological torture for the suspect. Involuntary confessions that result from such treatment manifest as coerced-compliant or coerced-internalized false confessions. 

Kassin and Wrightsman were in 1985, among the first theorists to define the three types of false confessions: voluntary, coerced-compliant, and coerced-internalized. Voluntary False Confessions occur when innocent people claim responsibility for crimes they did not commit without being prompted or put under pressure by the police. There are several reasons why a person would do this: A pathological desire for notoriety, a conscious or unconscious need to punish themselves, mental illness resulting in an inability to distinguish between fact and fantasy and a desire to protect the actual perpetrator (which is the most prevalent reason).

Coerced-Compliant False Confessions occur when suspects are induced through interrogation to confess to a crime they did not commit. This is the result of interrogators creating an environment that is so oppressive to the suspect that they will do anything to get out of the interrogation room. This is done through dominating and oppressive interrogation techniques such as the Reid technique. These types of techniques cause suspects to confess as a result of feeling extreme stress in the interrogation room. Their desire to avoid punishment and/or gain a promised or implied reward will often lead to such a confession. This type of confession is therefore an act of public compliance by a suspect, regardless of innocence, who bows to social pressure, often coming to believe that the short-term benefits of confessing, relative to denial, outweigh the long-term costs. 

Incentives identified for this type of compliance include being allowed to eat, sleep, make a phone call, go home, or, in the case of drug addicts, feed a drug habit. The desire to bring the interview to an end and avoid additional confinement may be particularly pressing for people who are young, desperate, socially dependent, or phobic of being locked up. One of the most famous examples of compliant false confessions took place in 1989, when five teenaged boys (Kevin Richardson, Antron McCray, Raymond Santana, Korey Wise, and Yusef Salaam) confessed to a crime they did not commit after lengthy interrogations. The Central Park 5 (Now known as the Exonerated 5) were exonerated 13 years later with assistance from the innocence project amid a wave of public outcry over the methods used to extract confessions from them.

Coerced-Internalized False Confessions occur when innocent, but malleable suspects are told that there is incontrovertible proof of their involvement in a crime. Suspects capitulate to these accusations and begin to believe that they may have in fact committed the crime, they will sometimes even confabulate false memories. This kind of false confession occurs when a person develops such a profound distrust of their own memory that they become vulnerable to influence from external sources. The Michael Crowe case is a famous example of this type of false confession. Crowe who was 14 years old and interviewed without his parents, was convinced after a series of interrogation sessions to confess that he had stabbed his sister to death. The officers presented Crowe with compelling false physical evidence of his guilt causing him to believe that he had a split personality and that ‘‘bad Michael’’ had committed the crime. The charges against Crowe were later dropped when a man covered in the girl’s blood was found a short time later. 

Sources:

Cleary, Hayley M D, and Todd C Warner. “Police training in interviewing and interrogation methods: A comparison of techniques used with adult and juvenile suspects.” Law and human behavior vol. 40,3 (2016): 270-84

Forensic Psychology : Crime, Justice, Law, Interventions, edited by Graham M. Davies, and Anthony R. Beech, John Wiley & Sons, Incorporated, 2017. ProQuest Ebook Central

Hartwig, Maria, and Charles F Bond. “Why do lie-catchers fail? A lens model meta-analysis of human lie judgments.” Psychological bulletin vol. 137,4 (2011): 643-59

The Psychology of False Confessions: Forty Years of Science and Practice, First Edition. Gisli H. Gudjonsson 2018 John Wiley & Sons Ltd. Published 2018 by John Wiley & Sons Ltd

Kassin, Saul M., and Katherine L. Kiechel. “The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation.” Psychological Science, vol. 7, no. 3, 1996, pp. 125–128. JSTOR

Laura Farrugia, Fiona Gabbert, Forensic interviewing of mentally disordered suspects: the impact of interview style on investigation outcomes, Current Psychology, 10.1007/s12144-020-00747-8, (2020)

People of the State of New York v. Kharey Wise et al., (2002) 194 Misc.2d 481

Koen Geijsen, Corine de Ruiter & Nicolien Kop | Luca Cerniglia (Reviewing Editor) (2018) Identifying psychological vulnerabilities: Studies on police suspects’ mental health issues and police officers’ views, Cogent Psychology, 5:1

Saul M. Kassin, Steven A. Drizin, Thomas Grisso, Gisli H. Gudjonsson, Richard A. Leo, Allison D. Redlich (2010) Police-Induced Confessions: Risk Factors and Recommendations Law Hum Behav (2010) 34:3–38

Crowe v. County of San Diego CASE NO. 99CV0241 R (RBB) (S.D. Cal. Feb. 17, 2004)

[kgomotsosekonya]

FAQ's about Wills and Estates by the Department of justice and Development

"What is a deceased estate?

A deceased estate comes into existence when a person dies and leaves property or a document, which is a will or is intended as a will. Such an estate must then be administered and distributed in terms of the deceased’s will or, in the absence of a valid will, in terms of the Intestate Succession Act,1989 (Act 81 of 1989). The procedure that must be followed to administer a deceased estate is prescribed by the Administration of Estates Act, 1965 (Act 66 of 1965), as amended.

Which deaths must be reported to the Master of the High Court?

The death of a person who dies within the Republic of South Africa and leaves property or any document that is a will or is intended as a will; and the death of a person who dies outside of the Republic of South Africa, but who leaves property and/or any document that is a will or is intended as a will, in the Republic of South Africa, must be reported to the Master of the High Court.

Where must estates be reported?

Where the deceased was living in the Republic of South Africa, the estate must be reported to the Master of the High Court in whose area of jurisdiction the deceased was living 12 months prior to his/her death. Where the deceased was not living in the Republic of South Africa at the time of his/her death, the estate may be reported to any Master of the High Court, provided it is reported to only one Master. An affidavit in which it is stated that the letters of executorships have not already been grated by any other Master of the High Court in the Republic of South Africa must accompany the reporting documents. From 5 December 2002, all Magistrates’ Offices are designated service points for the Master of the High Court and estates can be reported there.

However, these service points have limited jurisdiction. All estates with wills, as well as estates that exceed R50 000 in value, will be transferred to the provincial Master’s Office. Therefore, it is advisable to report these estates directly the Master’s Office.

Note: If the estate value is less than R 125 000 and there is a minor heir, Legal Aid S.A. (LASA) can be contacted to assist in this regard.

When and by whom must estates be reported?

The estate of a deceased person must be reported to the Master of the High Court within 14 days of the date of death. The death is to be reported by any person having control or possession of any property or documents that is or intends to be a will of the deceased. The estate is reported by lodging a completed death notice and other reporting documents with the Master which may be obtained from any Office of the Master of the High Court, Magistrate’s Office or on www.justice.gov.za.

How do you report an estate to the Master or to a service point of the Master of the High Court?

The reporting documents will differ slightly depending on the value of the estate and the type of appointment required. If the value of the estate exceeds R125 000, letters of executorship must be issued and the full process prescribed by the Administration of Estates Act must be followed.

However, if the value of the estate is less than R125 000, the Master of the High Court may dispense with letters of executorship and issue letters of authority in terms of Section 18(3) of the Administration of Estates Act, (Act 66 of 1965).

The Magistrates’ Office service points will only have jurisdiction if the deceased did not leave a valid will and the gross value of the estate is less than R50 000. Letters of authority entitle the nominated representative to administer the estate without following the full procedure set out in the Administration of Estates Act.

What documents will be required in the event of the value of the estate exceeding R125 000?

The following reporting documents are required:

• Completed death notice (form J294)

• Original or certified copy of the death certificate

• Original or certified copy of a marriage certificate (if applicable)

• All original wills and codicils or documents intended as such (if any)

• Next-of-kin affidavit if the deceased did not leave a valid will (form J192)

• Completed inventory form (form J243)

• Nominations by the heirs for the appointment of an executor in the case of an intestate estate, or where no executor has been nominated in the will, or the nominated executor has died or declines the appointment.

• Completed acceptance of trust as executor forms in duplicate by the person(s) nominated as executor(s) (form J190) plus a certified copy of the photo page of the executors ID document

• Undertaking and bond of security, unless the nominated executor has been exempted from providing security in the will, or is the parent, spouse or child of the deceased (form J262)

• Affidavit by the next-of-kin of a deceased person who has died without leaving a valid will, to the effect that the estate has not already been reported to another Master or service point (if applicable)

• Declaration of subsisting marriages

What documents will be required in the event of the value of the estate being less than R125 000?

The following reporting documents are required:

• Completed death notice (form J294)

• Original or certified copy of the death certificate

• Original or certified copy of a marriage certificate (if applicable)

• All original wills and codicils or documents intended as such (if any)

• Next-of-kin affidavit if the deceased did not leave a valid will (form J192)

• Completed inventory form (form J243)

• List of creditors of deceased (if applicable)

• Nominations by the heirs for the appointment of a Master’s representative in the case of an intestate estate or where no executor has been nominated in the will or the nominated executor declines the appointment.

• Undertaking and acceptance of Master’s directions (form J155)

• Declaration confirming that the estate has not already been reported to another Master’s Office or service point of the Master

• Declaration of subsisting marriages

Intestate Succession

What happens if I do not leave a will (intestate succession)?

If you die without leaving a valid will, your estate will devolve in terms of the rules of intestate succession, as stipulated in the provisions of the Intestate Succession Act, 1987 (Act 81 of 1987). In case of a marriage in community of property, one half of the estate belongs to the surviving spouse and, although it forms part of the joint estate, will not devolve according to the rules of intestate succession. For more information on the Intestate Succession Act, please consult the Act or your legal representative.

In the event of intestate succession, what happens if the deceased is survived by a spouse or spouses but not by (a) descendant/s

The spouse or spouses will be the sole intestate heirs.

Who is a spouse for purposes of intestate succession?

As starting point it can be said that any party to a valid marriage in terms of the Marriage Act, 1961 (Act 25 of 1961) (a civil marriage) is regarded as a spouse for purposes of intestate succession.

A party in a subsisting customary marriage which is recognized in terms of section 2 of the Recognition of Customary Marriages Act,1998 (Act 120 of 1998) is also a spouse for intestate succession purposes. These marriages include customary marriages which were validly concluded before the Act came into operation, and which still existed at the commencement of the Act (15 November 2000) as well as marriages concluded in terms of the provisions of the Act after the commencement of the Act.

Section 3(1) of the Reform of Customary Law of Succession and Regulation of Related Matters Act, 2009 (Act 11 of 2009), which came into operation on 20 September 2010, has created a further group of women who qualify as spouses for intestate succession purposes. They are the seed-bearing woman in terms of Customary Law.

Persons married in terms of Muslim and Hindu religious rites should be regarded as spouses for purposes of intestate succession and are entitled to inherit from their deceased partner in terms of the Intestate Succession Act, despite the fact that their “marriage” is not recognised as a valid marriage in terms of our current law

Persons who died before 1 December 2006, and were partners in a same-sex life partnership at the time of their death, should be regarded as “spouses” for purposes of intestate succession, while persons in same-sex relationships who died on or after 1 December 2006 should only be regarded as “spouses” if they had entered into a marriage or civil partnership in terms of the Civil Union Act.

In the event of intestate succession, what happens if the deceased is survived by a descendant/s, but not by a spouse?

The descendant will inherit the intestate estate.

In the event of intestate succession, what happens if the deceased is survived by a spouse/s as well as (a) descendant/s?

The spouse or spouses inherit the greater of R125 000 per spouse or a child’s share, and the children the balance of the estate. A child’s share is determined by dividing the intestate estate by the number of surviving children of the deceased and deceased children who have left issue, plus the number of surviving spouses.

Example of the child’s share in the event of a polygamous marriage: In this case the value of the intestate estate is R1 000 000. The deceased is survived by two spouses and three children. A child’s share amounts to R200 000 (being R1 000 000 divided by five: the three children and the two spouses). The child’s share is greater than R125 000. Therefore each spouse will inherit R200 000 and each child will inherit R200 000 (R1 000 000 less R400 000 to the spouses, divided by three).

Example of the child’s share in the event of a monogamous marriage: In this case, the same calculation will apply as in the previous example, only the child’s share is calculated by dividing the value of the intestate estate by four. The surviving spouse and each child will each inherit R250 000.

In the event of intestate succession, what happens if the deceased leaves no spouse or descendants, but both parents are still alive?

His/her parents will inherit the intestate estate in equal shares.

In the event of intestate succession, what happens if the deceased leaves no spouse and no descendants but leaves one parent, while the deceased parent left descendants (brothers/sisters of the deceased)?

The surviving parent will inherit one half of the intestate estate and the descendants of the deceased parent the other half.

In the event of intestate succession, what happens if the deceased leaves no spouse or descendants but leaves one surviving parent, while the deceased parent did not leave any other descendants?

The surviving parent will inherit the whole estate.

In the event of intestate succession, what happens if the deceased does not leave a spouse or descendants or parents, but both his parents left descendants?

The intestate estate will be split into equal parts. One half of the estate is then divided among the descendants related to the deceased through the predeceased mother and the other half among the descendants related to the deceased through the predeceased father.

In the event of intestate succession, what happens if the deceased does not leave a spouse, descendant or parents, but only one of the predeceased parents left descendants?

The descendants of the predeceased parent, who left descendants, will inherit the entire intestate estate.

In the event of intestate succession, what happens if the deceased does not leave a spouse, descendants, parents or descendants of his parents?

The nearest blood relation inherits the entire intestate estate.

In the event of intestate succession, what happens if the deceased is not survived by any relative?

Only in this instance will the proceeds of the estate devolve on the state.

What is the position with regard to an illegitimate child of the deceased?

An illegitimate child can inherit from both blood relations, the same as a legitimate child.

What is the position with regard to an adopted child of the deceased?

An adopted child will be deemed to be a descendant of his adoptive parent or parents; and not to be a descendant of his natural parent or parents, except in the case of a natural parent who is also the adoptive parent of that child or was, at the time of the adoption, married to the adoptive parent of the child.

WILLS

What is a will?

A will is a specialised document, which should preferably be drawn up by an expert like an attorney or trust company.

Who is competent to make a will?

The person who draws up a will is called the testator/testatrix. All persons 16 years and older are competent to make a will in order to determine how their estate should devolve upon their death, unless they were mentally incapable of appreciating the consequence of their actions at the time of making the will.

Who is competent to act as a witness to a will?

All persons of 14 years and over are competent to act as a witness to a will, provided that at the time they witnessed the will they were not incompetent to give evidence in a court of law.

What are the requirements for a valid will?

Since 1 January 1954 all wills must be in writing. They can be written by hand, typed or printed. The signature of the testator/testatrix must appear at the end of the will.

This signature must be made in the presence of two or more competent witnesses.

The witnesses must attest and sign the will in the presence of the testator/testatrix and of each other. If the will consists of more than one page, each page other than the page on which it ends must be signed anywhere on the page by the testator/testatrix.

Although the testator/testatrix must sign all the pages of the will, only the last page of the will needs to be signed by the witnesses.

What are the requirements for a valid will if the testator/testatrix cannot sign his/her name?

If the testator/testatrix cannot sign his/her name, he/she may ask someone to sign the will on his/her behalf or he/she can sign the will by making a mark (a thumbprint or a cross). When the will is signed by someone on behalf of the testator/testatrix or by making a mark, a Commissioner of Oaths must certify that he/she has satisfied him/herself as to the identity of the testator/testatrix and that the will so signed is the will of the testator/testatrix. The Commissioner of Oaths must sign his/her certificate and he/she must also sign every other page of the will, anywhere on the page. The Commissioner of Oaths must also be present when the will is signed and must append his/her certificate as soon as possible after the will is signed even if the testator/testatrix dies soon after signing the will.

What is a codicil?

A codicil is a schedule or annexure to an existing will, which is made to supplement or amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

What if I want to amend my will?

Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and, if a testator/testatrix cannot sign it, with the same requirements that apply for persons who cannot sign a will. When amending a will, the same witnesses who signed the original will need not sign it again.

Must I amend my will after a divorce?

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessary fall away after divorce. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce. This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you, however, fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.

Who is disqualified from inheriting under a will?

The following people are disqualified from inheriting under a will: a person or his/her spouse who writes a will or any part thereof on behalf of the testator; and a person or his/her spouse who signs the will on instruction of the testator or as a witness.

Consult your legal representative for more information in this regard.

TRUSTS

How are trusts administered?

The administration of trusts is governed by the provisions of the Trust Property Control Act, 1988 (Act 57 of 1988). There are two types of trusts, intervivos and testamentary trusts. An inter-vivos trust is created between living persons. A testamentary trust derives from the valid will of a deceased.

What documents must be lodged in order to enable the Master of the High Court to register an inter-vivos trust and to issue letters of authority to the nominated trustee(s)?

The following documents must be lodged:

• The original trust deed or notarial certified copy thereof

• Due to the abolition of stamp duty Master’s fees a registration fee of R100 must be paid into the Department of Justice’s bank account.

• Completed acceptance of trusteeship by each trustee

• Bond of security by the trustees, if required by the Master (form J344)

• Certified copy of the photo page of the trustees ID document

• All the requirements listed on form JM21

• An undertaking by an auditor on form JM21 (if applicable).

For the testamentary trust the completed acceptance of trusteeship and the photo page of the trustees ID document by each trustee and all the requirements listed on form JM21 have to be lodged. There are no fees involved and the deceased’s last will serves as the trust document.

The inter-vivos trust must be registered with the Master in whose area of jurisdiction the greatest portion of the trust assets are situated. If more than one Master has jurisdiction over the trust assets, the Master in whose office the trust was first registered will continue to have jurisdiction.

On receipt of all the required documents, the Master may issue the nominated trustees with letters of authority to administer the trust. No trustee may act as such without the written authority of the Master. Trustees should keep accurate financial statements to comply with their fiduciary obligations to the beneficiaries. The Master may request the trustees to account for the administration of the trust."

[kgomotsosekonya]

Imperative Reading for people that aren't sure if they have/had a valid customary marriage.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable

Case no: 244/19

In the matter between:

ROBERT TSAMBO                                                                                          APPELLANT

and                                  

LERATO RUBETA SENGADI                                                                       RESPONDENT

In re:

TSAMBO, JABULANI                                                                                        DECEASED

Neutral citation: Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020)

Coram: MAYA P and MBHA, ZONDI and MOLEMELA JJA and MOJAPELO AJA

Heard: 6 March 2020

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Supreme Court of Appeal website and release to SAFLII. The date and time for hand-down is deemed to be 12h00 on 30 April 2020.

Summary: Customary law – s 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998 – whether handing over of bride occurred – whether a valid customary marriage came into existence.

ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Mokgoathleng J, sitting as a court of first instance): judgment reported sub nom Sengadi v Tsambo; In re: Tsambo [2018] ZAGPJHC 666;  2019 (4) SA 50 (GJ);  [2019] 1 All SA 569 (GJ)

The appeal is dismissed with no order as to costs.

JUDGMENT

Molemela JA (Maya, P and Mbha and Zondi JJA and Mojapelo AJA concurring)

[1] The central issue in this appeal is whether on 28 February 2016 a customary law marriage came into existence between the deceased, Mr Jabulani Tsambo whose stage name was HHP (“Jabba”), and the respondent, Mrs Lerato Rubeta Sengadi. Ancillary to that issue is whether, pursuant to the conclusion of the lobola negotiations, a handing over of the bride ensued in satisfaction of the requirement that the marriage be negotiated and entered into or celebrated in accordance with customary law in terms of s 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998.

[2] The appeal is directed at the decision of the Gauteng Division of the High Court, Johannesburg (Mokgoathleng J), which found that a valid customary marriage was concluded between the respondent and the deceased. The appellant, Mr Robert Tsambo, is the biological father of the deceased.

[3] In support of relief she sought from the high court, the respondent relied on the following facts. The deceased proposed marriage to her on 6 November 2015 in Amsterdam. She immediately accepted the marriage proposal. The deceased considered African culture to be important and insisted that the couple conclude a marriage in terms of customary law[1] with the blessings of their respective parents. The respondent agreed. On 20 January 2016 the appellant dispatched a letter written by the deceased’s uncle, Mr Tutu Mokgatle, to the respondent’s mother. The letter requested that the families of the respondent and the deceased meet ‘to discuss the union’ of the deceased and the respondent. On 28 February 2016 the two families met at the respondent’s family home. Although the appellant and the respondent’s mother were present at the respondent’s home, they did not participate in the lobola negotiations, as is the custom. Upon the successful conclusion of the lobola negotiations, a lobola agreement was concluded, reduced to writing and signed. It stipulated that the lobola agreed upon was an amount of R45 000. It further recorded that the deceased would pay a deposit of R30 000 upon signature of the agreement and that the balance would be paid in two instalments. As a postscript to the agreement, it was recorded that ‘the final amount at our next meeting shall be R10 000. It is agreed that the remaining R5000 will follow at some later stage.’

[4] At the conclusion of the lobola negotiations, the women from the respective families attended to the preparation of a meal. At this time, the deceased left the respondent’s home for a short while. In the intervening period, the respondent’s mother received a payment notification on her phone, advising that the deceased had transferred an amount of R35 000 into her bank account.

[5] When the deceased returned, the respondent noticed that he had changed into formal attire. She also noticed that the deceased's aunts, Ms Nomvula and Ms Minky, had emerged from outside and entered the house bearing a covered outfit on a clothes hanger. The deceased's aunts requested the respondent to accompany them into one of the bedrooms. Once in the bedroom, the deceased’s aunts revealed an outfit from the clothes hanger, and informed her that the attire was her wedding dress. They then proceeded to dress her up in that attire. When she emerged from the bedroom, she noticed that her attire matched the deceased’s. She then realised that not only was that day reserved for lobola negotiations, but the deceased and his family had also planned that a customary law marriage between her and the deceased should be celebrated on the same day. The deceased’s aunts introduced the respondent to all persons present as the deceased’s wife and thereafter welcomed her to the Tsambo family. The appellant approached the respondent, embraced her and congratulated her on her marriage to the deceased.

[6] The celebration that ensued after the lobola negotiations was recorded on video camera by one of the attendees. Photographs described as screenshots were obtained from the recording and introduced into evidence. In one of the photographs, the appellant is depicted with the deceased and the respondent, who are dressed in matching attire. In another, the appellant can be seen embracing the respondent. The video recording was introduced into evidence and viewed at the high court. The high court recorded that the video depicted the two families in a joyous celebratory mood ululating and uttering the words ‘finally, finally’. The respondent averred that a lawful customary marriage came into existence between the deceased and herself on that day. She asserted that later that day when she and the deceased returned to their place of abode, they did so as husband and wife. Consequently, their place of abode became the matrimonial home, so she asserted. It is common cause that the customary marriage was not registered with the Department of Home Affairs.

[7] According to the respondent, she and the deceased continued to live together as husband and wife until sometime during 2018, when their relationship went through a rough patch, apparently because of the deceased’s infidelity and drug addiction for which he refused to undergo rehabilitation. This caused the respondent to leave the matrimonial home although she did not take all her personal belongings with her. Due to the deteriorating health and depression of the deceased, during April 2018, the respondent convened a meeting of the two families. She reported the deterioration in the deceased’s health. The deceased, however, stalked out in a huff before any resolution could be reached. During August 2018, the couple reconciled but did not resume their cohabitation as the respondent had insisted that she would return to the matrimonial home only if the deceased agreed to submit himself to a rehabilitation programme. Unfortunately, the deceased committed suicide on 23 October 2018. The respondent returned to the matrimonial home on 24 October 2018 in order to mourn the passing of her husband. On 27 October 2018, the appellant informed the respondent that he did not acknowledge her as the deceased’s wife and barred her from making funeral arrangements for him. He subsequently changed the locks of the matrimonial home, thereby depriving the respondent of access thereto.

[8] The respondent launched an urgent application, essentially seeking recognition of what she asserted to be a customary marriage between her and the deceased and all rights consequent upon that marriage. The salient orders sought in terms of the notice of motion were couched as follows:

‘2. It is declared that the customary marriage between [the respondent] and the deceased is a customary marriage entered into validly on 28 February 2016, and as envisaged in terms of section 3 of the Recognition of Customary Marriages Act, 120 of 1998.

3. The [respondent] is declared to be the lawful customary wife of the deceased . . . who died on the 23rd of October 2018.’

The rest of the relief sought in terms of the notice of motion is not the subject of the appeal before us and need not detain us.

[9] The appellant opposed the application. The main thrust of his opposition was that the respondent had no right to the relief sought, as no customary law marriage had been concluded between her and the deceased on 28 February 2016. The appellant argued that ‘at best for the deceased, the necessary customs, rituals and procedures required for the conclusion of a customary marriage may have commenced, but were not proceeded with or completed.’ The appellant averred that the meeting that took place on 28 February 2016 was confined to lobola negotiations and what happened thereafter merely constituted a celebration of the successful conclusion of the lobola negotiations. He asserted that it was clear from the terms of the lobola agreement that the families intended to have a further meeting thereafter.

[10] The appellant also averred that ‘[t]he two families would have [had] to agree on the formalities and the date on which the [respondent] would be “handed over” to the [deceased’s] family’. He contended that in terms of custom, subsequent to the initial payment of lobola, a date is set on which the bride’s family will hand over the bride to the husband’s family, ‘go gorosiwa’,[2] and upon arrival a lamb or goat is slaughtered and the bile therefrom is used to cleanse the couple. He contended that the performance of that ritual would signify the union of the couple and the joining of the two families. That ritual would be followed by a celebration, during which the lamb or goat that was slaughtered would be consumed. The appellant contended that because that ritual was not observed, the handing over of the bride, which he considered as the most crucial part of a customary marriage, did not take place.[3] Thus, so it was contended, no customary marriage came into existence between the deceased and the respondent.

[11] The high court found that the handing over was not a strict requirement for a valid customary marriage and could be waived. It found that there was a tacit waiver of the custom of the handing over of the bride because a symbolic handing over of the respondent to the deceased’s family had occurred after the conclusion of the customary marriage. It rejected the appellant’s contention that the most crucial part of a customary marriage is the handing over of the bride and that the absence thereof would result in no valid customary marriage coming into existence. The high court, inter alia, granted the following orders:

‘1. It is declared that the customary marriage between the [respondent] and the deceased is a customary marriage entered into validly on [the] 28th February 2016, and as envisaged in terms of Section 3 of the Recognition of Customary Marriages Act, 120 of 1998.

2. The [respondent] is declared to be the lawful customary wife of the deceased, JABULANI TSAMBO . . . who died on the 23rd of October 2018.’

[12] Before us, it was contended on behalf of the respondent that the requirement of handing over of the bride is not determinative of a customary marriage. As authority for that proposition, the respondent relied on the writings of Professor Bennett and Professor Bekker with specific regard to the evolution of the customary marriage practices of the Batswana people, which is the customary law that is applicable in the present case. Professor Bekker[4] in Seymour's Customary Law in Southern Africa, argued that amongst the Sotho-Tswana people, the wedding is celebrated at the bride’s family home, where the lobola negotiations take place. In some of the communities, the handing over of the bride takes a physical form on the day of the wedding.[5] Professor Bekker proceeds to observe as follows:

‘On the completion of the lobolo agreement, the bride's guardian provides a beast for slaughter, each party receiving half the meat; certain ceremonies are performed with the entrails. This slaughter signifies not only the completion of the lobolo agreement, but also the consummation of the customary marriage, which is not rendered less effective if the bride does not leave with the bridegroom's party on that occasion, and usually she does not.’[6]

[13] It is clear from the preceding discussion that historically, significance was paid to the conclusion of the lobola agreement, and not necessarily the full payment of lobola. Therefore, the appellant’s contention that a marriage could not have been concluded as it was agreed that part of the outstanding balance on the lobola would be paid ‘at the next meeting’ is devoid of any merit. In my view, it simply does not follow that the completion of the customary marriage process on the same day was precluded because it was not pertinently discussed during the negotiations. As mentioned above, the crisp question in this matter is whether, on the facts of this case a customary marriage came into existence.[7] The handing over of the bride is an issue that was raised by the appellant as proof that the existence of a customary marriage had not been established. The facts must be considered against the backdrop of relevant authorities.

[14] Section 3(1) of the Recognition of Customary Marriages Act provides:

‘For a customary marriage entered into after the commencement of this Act to be valid –

(a) the prospective spouses –

(i) must both be above the age of 18 years; and

(ii) must both consent to be married to each other under customary law; and

(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.’

[15] When dealing with customary law, it should always be borne in mind that it is a dynamic system of law.[8] In Ngwenyama v Mayelane and Another[9] this Court stated as follows:

‘The Recognition Act does not specify the requirements for the celebration of a customary marriage. In this way, the legislature purposefully defers to the living customary law. Put differently, this requirement is fulfilled when the customary law celebrations are generally in accordance with the customs applicable in those particular circumstances. But once the three requirements have been fulfilled, a customary marriage, whether monogamous or polygamous, comes into existence.’ (Own emphasis.)

[16] In Mabuza v Mbatha[10] the court, stated that there was no doubt that the custom of ukumekeza[11] had evolved so much so that it is probably practised differently than it was centuries ago. It went on to endorse the view that it was inconceivable that ukumekeza had not evolved and that it could not be waived by agreement between the parties and/or their families in appropriate cases.[12] That dictum was approved by this Court in Mbungela and Another v Mkabi and Others.[13] Having reviewed several authorities, this Court concluded that the handing over of the bride, though important, is not a key determinant of a valid customary marriage. It aptly stated as follows:

‘The importance of the observance of traditional customs and usages that constitute and define the provenance of African culture cannot be understated. Neither can the value of the custom of bridal transfer be denied. But it must also be recognised that an inflexible rule that there is no valid customary marriage if just this one ritual has not been observed, even if the other requirements of s 3(1) of the Act, especially spousal consent, have been met, in circumstances such as the present ones, could yield untenable results.’

[17] The appellant’s contentions pertaining to the rituals observed during the handing over of the bride ceremony fail to take into account that customary law is by its nature, a constantly evolving system.[14] That customary law has always evolved is evident from the following observation made by Professor Bennett almost three decades ago and approved in many judgments:

‘In contrast, customary law was always flexible and pragmatic. Strict adherence to ritual formulae was never absolutely essential in close-knit, rural communities, where certainty was neither a necessity nor a value. So, for instance, the ceremony to celebrate a man’s second marriage would normally be simplified; similarly, the wedding might be abbreviated by reason of poverty or the need to expedite matters. Aside from this, the indigenous rituals might be supplanted by exotic ones: a wedding ring may now be used in place of the traditional gall bladder of a slaughtered beast and for many a church ceremony has become indispensable.’[15]

[18] It is evident from the foregoing passage that strict compliance with rituals has, in the past, been waived. The authorities cited by the respondent, mentioned earlier in the judgment, also attest to that. Clearly, customs have never been static. They develop and change along with the society in which they are practised.[16] Given the obligation imposed on the courts to give effect to the principle of living customary law,[17] it follows ineluctably that the failure to strictly comply with all rituals and ceremonies that were historically observed cannot invalidate a marriage that has otherwise been negotiated, concluded or celebrated in accordance with customary law.

[19] Before analysing the facts of this case, it is appropriate to address the appellant’s contention that there was a dispute of fact pertaining to the question whether the events of 28 February 2016 established a customary marriage. The appellant submitted that in the light of a material factual dispute regarding the nature of the celebrations after the conclusion of the lobola negotiations, the high court ought to have referred the dispute to trial or for the hearing of oral evidence in accordance with the principle established in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd.[18] A brief consideration of the Plascon-Evans rule is required. The principle laid down in that seminal judgment is that an applicant who seeks final relief using motion proceedings must, in the event of a dispute of fact, accept the version set up by his or her opponent unless the latter’s allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers. The nub of the issue is whether on the facts, and bearing in mind the Plascon-Evans rule, the handing over of the bride was established.

[20] In Wightman t/a J W Construction v Headfour (Pty) Ltd and Another,[19] this Court clarified the effect of factual disputes in motion proceedings as follows:

‘A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say “generally” because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter.’

[21] It is evident from the foregoing passage that a bona fide dispute of fact only arises when the party raising it seriously addresses the facts that are disputed, especially where the disputing party is in a position to be aware of the facts. The difficulty for the appellant in this matter is that he provided no answer to some of the respondent’s crucial allegations. He did not engage with the respondent’s assertions pertaining to specific events that were said to have happened in his presence, such as her being dressed in a wedding attire as described by the deceased’s aunts, being introduced to the witnesses by them as the deceased’s wife and welcomed to his family and being congratulated by the appellant on the marriage. These allegations were not gainsaid despite the fact that they related to aspects that lay within his personal knowledge and for which he could provide an answer.

[22] There was a bare denial regarding the material aspect of what the change of clothes and the words uttered signified. Whereas the respondent supported her evidence with the confirmatory affidavits of her relatives who were present during the lobola negotiations, the appellant did not support his bare denials with any confirmatory affidavit. I find it odd that the deceased’s aunts, who played a crucial role in the events, did not depose to any affidavit. One of the aunts, Ms Nomvula, was reportedly present at the deceased’s house before his burial. This was not denied by the appellant. Surprisingly, not even an unsworn statement was presented as her account of events. Instead, an unsworn statement, allegedly authored at the instance of the deceased’s mother after the deceased’s death, was attached to the appellant’s papers. While it is trite that hearsay evidence may be admitted in urgent applications, the note prepared by the deceased’s mother cannot carry much weight as she was not part of the lobola negotiations and the celebrations that followed.

[23] Notably, no reason was given for not obtaining affidavits from those who were present. In my view, the same effort expended to procure an unsworn statement from the deceased’s mother could have been spent on obtaining a statement from Ms Nomvula. The very fact that the appellant was able to procure a statement from the deceased’s mother actually puts paid to the appellant’s contention that he was not provided with sufficient opportunity to interrogate the factual disputes. When all is said and done, the appellant’s bald denials did not create a bona fide dispute of fact necessitating the referral of the matter for oral evidence or trial, or even the dismissal of the application.

[24] The appellant contended that the fact that both the respondent and the deceased considered culture to be of significance cast doubt on whether they could have intended to conclude a wedding without observing such a crucial aspect of their culture like the handing over of the bride. I disagree. In my view, there is sufficient undisputed evidence from which it can be inferred that the deceased, a successful musician who had a busy schedule,[20] had decided to expedite the conclusion of the customary marriage. The letter requesting a meeting for the lobola negotiations was dispatched relatively soon after he had proposed marriage to the respondent. After the conclusion of the lobola negotiations, the deceased transferred more than the amount he was required to pay as a deposit for the lobola. It is also significant that the deceased and the appellant were in attendance at the respondent’s home even though the family had nominated emissaries that would represent him during the lobola negotiations.

[25] While rituals associated with the handing over of the bride, like the slaughtering of the sheep and the consumption of its bile were indeed not observed, there are some features that bear consideration. It is quite striking that the deceased’s aunts are the ones who provided the respondent with an attire matching that of the deceased and who actually dressed her up in it. That they described it as her wedding dress is quite telling. These are customary practices that are undoubtedly compatible with an acceptance of the respondent by the deceased’s family.

[26] The clearest indication of her acceptance as the deceased’s wife is evidenced by the actual utterances that were made: the respondent was formally introduced as the deceased’s wife and welcomed to the Tsambo family. Thereafter, the appellant embraced her and congratulated her on her marriage to the deceased. Bearing in mind that thepurpose of the ceremony of the handing over of a bride is simply to mark the beginning of a couple’s customary marriage and introduce the bride to the bridegroom’s family,[21] I am inclined to agree with the respondent’s assertion that a handing over, in the form of a declared acceptance of her as a makoti (daughter-in-law), satisfied the requirement of the handing over of the bride.

[27] That the couple continued to cohabit after that celebration and that the respondent registered the deceased as a beneficiary and spouse on her medical aid scheme[22]are features that cannot be dismissed as insignificant, as they are consonant with the existence of a marriage. I am fortified in this view by Professor Bennet’s argument with regards to the handing over requirement. He argued that the parties’ intention could be inferred from cohabitation. According to him, where the parties were cohabiting, the gravamen of the enquiry was the attitude of the woman’s guardian. If the guardian did not object to the relationship, a marriage would be presumed, irrespective of where the matrimonial home happened to be or how the ‘spouses’ came to be living there.[23] Professor Bennett placed reliance on a case in which the Court had remarked that “long cohabitation raises a strong suspicion of marriage, especially when the woman’s father has taken no steps indicating that he does not so regard it”.[24] In this matter, the respondent averred that her mother had not instituted any action for seduction or demanded payment of a fine, well knowing that the respondent cohabited with the deceased. She accepted that the respondent and the deceased had entered into a valid customary marriage.

[28] To sum up: the respondent’s evidence of the events that took place on the day of the lobola negotiations is supported by several confirmatory affidavits. The appellant’s bare denials did not refute the respondent’s evidence. Clearly, the correct application of the Plascon-Evans rule did not preclude the high court from granting final relief on the papers, where the evidence put up by the appellant did not constitute a bona fide factual dispute.

[29] Despite the high court’s misgivings about the application of the Plascon-Evans rule in the context of an urgent application, it is evident that, in reality, it applied the same rule and came to the correct decision regarding the waiver of some of the rituals associated with the handing over of the bride. It is therefore not necessary to determine whether a more robust approach was necessary. To the extent that the high court stated that the Plascon-Evans rule was not satisfactory in the context of urgent applications, it erred.

[30] Having considered all the facts and circumstances of this case, I am persuaded that on 28 February 2016, the respondent and the deceased concluded a customary marriage that complied with all the requirements for a valid customary marriage as contemplated in s 3(1) of the Act. It follows that the appeal against that order of the high court must fail.

[31] Despite the finding that the appeal against the order of the high court ought to fail, there is an aspect that this Court is constrained to pronounce itself on. Having correctly found on the facts of this case that the physical handing over of the bride was waived in favour of a symbolic handing over, the high court, in the process of giving reasons for its order, proceeded to declare that the custom of the handing over of the bride was unconstitutional.

[32] In Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development and Others,[25] the Constitutional Court laid down that a court may raise, of its own accord, the unconstitutionality of a law that it is called upon to enforce.[26] It pointed out that it may do so where (a) the constitutional question arises on the facts; and (b) a decision on the constitutional question is necessary for a proper determination of the case before it or it is in the interests of justice to do so.[27] It pointed out that it was neither necessary nor desirable to catalogue circumstances in which it would be in the interests of justice for a court to raise, of its own accord, a constitutional issue, because that would depend on the facts and circumstances of the case.[28] It stressed that the parties must be afforded an adequate opportunity to deal with the issue.[29]

[33] It must be borne in mind that it was never the respondent’s case that the requirement of the handing over of the bride was unconstitutional. The issue of the handing over of the bride became relevant in so far as establishing whether a customary law marriage came into existence. Given the pleaded case, a decision on the constitutionality of the custom of the handing over of the bride simply did not arise. During the exchange with the bench, both counsel assured this Court that the constitutionality issue was not canvassed during argument before the high court. They bemoaned the fact that the declaration was made without the benefit of full argument. Since prerequisites laid down by the Constitutional Court in the afore-mentioned judgment have not been met, I am inclined to agree that there was no basis for the high court to declare that the handing over custom was unconstitutional.

[34] With regard to costs, counsel for the appellant informed us that he was representing the appellant on a pro bono basis. He submitted that if this Court was inclined to find against the appellant, it should grant an order in terms of which the costs of the appeal are borne by the deceased estate, as the appellant was cited in his personal capacity as well as in his capacity as the head of the Tsambo family. The respondent’s counsel indicated that it left the issue of costs in the Court’s discretion. All things considered, it would be appropriate not to make any order as to costs.

[35] The appeal is dismissed with no order as to costs.

[kgomotsosekonya]

Domestic Workers Rights and Resources in South Africa

Websites detailing Rights of Domestic workers:

https://mywage.co.za/decent-work/domestic-work/domesticworkersrights

https://www.vukuzenzele.gov.za/protecting-rights-domestic-workers

Steps for Referring a Dispute to the CCMA:

https://www.ccma.org.za/Advice/Referring-a-Dispute

Laws that affect Domestic workers:

https://nannynme.co.za/wp/wp-content/uploads/2019/05/For-employers_The-law-and-employing-a-domestic-worker.pdf

“Question: Which laws regulate the relationship between my domestic worker and me?

The two most important are the Basic Conditions of Employment Act (No 75 of 1997, as amended), and the Labour Relations Act (No 66 of 1995, as amended).

Question: What is the effect of these laws?

The Basic Conditions of Employment Act sets out minimum employment standards for all employment contracts in relation to matters such as working hours, leave, remuneration etc. The most significant effect of the Labour Relations Act on you as the employer of a domestic worker is that it imposes a duty to carry out any possible dismissal of your domestic worker in a fair manner and to refrain from unfair labour practices like unilaterally changing your domestic's conditions of employment.

Question: Have there been any important recent changes in these laws?

Yes, the government has recently introduced a new set of basic employment standards specifically aimed at the domestic worker sector of the economy. The most well known of these is the new minimum wage requirement. The new set of employment standards was published in the Government Notice of 15 August 2002 under the title Sectoral Determination 7: Domestic Worker Sector. The notice was published in terms of the Basic Conditions of Employment Act, which entitles the Minister of Labour to set minimum standards for particular sectors of the economy.”