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October 19, 2021

Defamation – don't rush into suing

 

Someone has posted a defamatory statement about you in a WhatsApp group or a Facebook post. You feel understandably upset and want urgently to right the wrong. Be careful about rushing off to court, as our courts have been reluctant to award substantial damages unless the person defamed is a high-profile person.

Your attorney will call upon the person who defamed your good name and reputation to retract the publication with an immediate apology.

If they refuse to do so, you should think twice about going to court. Damages for defamation and an apology can only be resolved once a judge hears oral evidence. When you and your attorney prepare for trial, during the trial and long after that - regardless of the outcome - the anger will live like a monkey on your shoulder. Don't forget about the potentially huge legal costs you may incur if the matter proceeds to court.

The requirements for defamation are: (a) the wrongful; and (b) intentional; (c) publication of; (d) a defamatory statement; and concerning the plaintiff,

Once you establish publication of the defamatory words, it is presumed that the statement was both wrongful and the publisher intended to defame you. To be discharged on a preponderance of probability, the Defendant bears the onus to negate or raise a defence.

In the case of Manyi v. Dhlamini, Dhlamini posted hugely defamatory statements about Manyi in a WhatsApp group conversation. Manyi sued for R5m damages out of the Gauteng High Court. He used an attorney and a senior advocate. The claims were R3 million for damages for defamatory statements and R2 million for threats to his life (you ought to be necklaced).

The court found for the Plaintiff: "Taking all the words referred to hereinabove, individually and or collectively, I do not doubt in my mind that they have the effect of impairing the plaintiff's right to dignity and the right to have such dignity respected, in terms of s10 of the Bill of Rights of the Constitution".

In determining quantum in respect of defamation, the Court must have regard to:

·         the seriousness of the defamation

·         the nature and extent of publication

·         the reputation, character and conduct of the Plaintiff

·         the motives and conduct of the Defendant 

Although the judge found for the Plaintiff, he was not prepared to award more that R50,000 for the first claim and R5,000 for the second. He was not impressed that Plaintiff employed senior counsel, stating that in his view "the issues in this matter were not complex to warrant the services of senior counsel. Besides, the Plaintiff's claimed amounts were highly inflated to bring the matter within the jurisdiction of this court. Besides, the total award falls within the jurisdiction of the Magistrates' Court". The judge ordered Defendant to pay the Plaintiff's taxed and allowed costs at the magistrate party and party scale.

It is safe to assume that the legal costs of the attorney and the senior counsel substantially exceeded the amounts awarded by the court.

Instead of spending hundreds or even thousands of Rands in a quest for justice, it may make more sense to defuse the situation by working out an appropriate response to any backlash the defamatory statement may have caused.

October 11, 2021

Can I be fired if I refuse to be vaccinated?

 


Is it constitutional to force an employee to be vaccinated against Covid? 

The opinion worldwide seems to be that there must be a balance between an employer's obligation to provide a safe and secure working environment and an employee's right to freedom and security of person. This includes the right to bodily integrity and the right to freedom of religion, belief, and opinion.

 Science seems to show that vaccines are highly effective. The anti-vaxxers have concerns about the safety, efficacy and both long-term and short-term side-effects and consequences of the various available Covid-19 vaccines.

In June 2021. the Department of Employment and Labour issued occupational health and safety directive that permits (but not obliges) an employer to implement a mandatory workplace vaccination plan subject to specific guidelines. These include whether the employer intends to make vaccinations mandatory, which employees must be vaccinated, etc. The employer needs to consider age, comorbidities, risk of transmission due to the job role, etc.

 At present, no legislation exists regulating immunization in the workplace.

 Section 12(2) of the Constitution provides that everyone has the right, among other things, to security in and control over their body; and not to be subjected to medical or scientific experiments without their informed consent.

Section 15(1) of the Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief, and opinion.

This seems to give the employee a protected right to refuse to be vaccinated.

However, our courts have found that such rights must be balanced against the community's rights when there are justifiable grounds for doing so. Section 36 of the Constitution provides for the limitation of constitutional rights as it is reasonable and justifiable, based on human dignity, equality, freedom, and other factors that may limit an individual's rights.

No court has yet ruled on the issue of compulsory vaccinations. Still, several decisions show that the public interest outweighs the right to bodily and psychological integrity of individuals in some instances.

Courts may well find that vaccinated employees have a constitutional right to life compromised by employees who refuse to be vaccinated.

Employers must protect their employees and maintain a healthy and safe working environment. Employers have to factor in the viability of continued remote work, which employees that come to work may be vulnerable, what safe and effective alternatives to vaccinations exist (such as allowing the employee to work from home or to self-isolate in the workplace; or require the employee to wear an N95 mask while at work).

In summary, employers may enact a policy of mandatory vaccinations, but the process must be accompanied by a thorough consultation process and must respect the rights of the employee.  Where practical, in the face of employee resistance to vaccinations, employers should consider all less intrusive and restrictive means to ensure occupational health and safety.

October 04, 2021

ELECTRONIC SIGNATURES AND EMAILS


 

In Spring Forest Trading 599 CC v Wilberry (Pty) Ltd T/A Ecowash and Another, the Supreme Court of Appeal (SCA) ruled that the parties to an agreement that contained a non-variation clause (providing for the cancellation to be in writing and signed by the parties) could vary the agreement through an exchange of emails. 

The SCA also found that typewritten names of the parties at the foot of emails constituted ‘data’ that was logically associated with the data in the body of the emails, as envisaged in the definition of an ‘electronic signature’ [which is not to be confused with an advanced electronic signature] in ss 13(1) and (3) of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”).

 

In terms of section 13(3) of ECTA: 

 

“Where an electronic signature is required by the parties to an electronic transaction and the parties have not agreed on the type of electronic signature to be used, that requirement is met in relation to a data message if:

 

(a) method is used to identify the person and to indicate the person’s approval of the information communicated; and

(b) having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated.”

Thus, where a contract requires written confirmation of a variation of a contract, an exchange of emails (which constitutes writing in terms of ECTA) with the parties’ typewritten names at the bottom would comply with the requirements of section 13(3).

In Global and Local Investments Advisors (Pty) Ltd v Fouche 2021 (1) SA 371 (SCA), the issue for determination was whether Global, a financial services provider, breached a mandate in terms of which it was authorised to invest and manage money entrusted to it by the respondent, Fouché, by releasing funds in response to fraudulent emails, ostensibly sent by the latter. Fraudsters hacked Fouché’s Gmail account and utilising his authentic email credentials, sent three emails to Global to transfer specified amounts to accounts of named third parties at First National Bank. The SCA found that the emails were fraudulent and were not binding on Mr Fouché. Global had to compensate him.

The court found that Spring Forest is distinguishable from this case for the following reasons: “The authority of the persons who had written and sent the emails was not an issue in that case as it is in the present case. The problem, in that case, was whether an exchange of emails between the contracting parties could satisfy the requirement imposed by them in the contract that ‘consensual cancellation of their contract be ‘in writing and signed by the parties. There was no dispute regarding the reliability of the emails, accuracy of the information communicated or the identities of the persons who appended their names to the emails. In the present case, the emails in issue were, in fact, fraudulent. They were not written nor sent by the person they purported to originate. They were fraudulent as they were written and dispatched by person or persons without the authority to do so. Therefore, they are not binding on Mr Fouché.” 

Take care that if you conclude a contract that requires a signature for any purpose, specify whether or not an electronic signature will be compliant. Also clarify what form of electronic signature will be acceptable. 

 


September 29, 2021

Forfeiture of the benefits of a marriage


 

Our law allows a court to make an order that one party may forfeit the patrimonial benefits of a marriage.

 

Section 9 of the Divorce Act 70 of 1979 provides:

 

Forfeiture of patrimonial benefits of marriage

(1)       When a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage the Court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the Court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.

(2)       In the case of a decree of divorce granted on the ground of the mental illness or continuous unconsciousness of the defendant, no order for the forfeiture of any patrimonial benefits of the marriage shall be made against the defendant.

Similarly, where the marriage is subject to the accrual system, section 9 of the Matrimonial Property Act 88 of 1984 provides:

 

Forfeiture of right to accrual sharing

The right to share in the accrual of the estate of a spouse in terms of this Chapter is a patrimonial benefit which may on divorce be declared forfeit, either wholly or in part.

The Court is not interested in the guilt or innocence of either party. Rather, it has the discretion to make an order of forfeiture or to withhold it. The Court considers the duration of the marriage, the circumstances that gave rise to its breakdown and any substantial misconduct on either of the spouses.  The section does not consider the financial needs and obligations of the spouses or their ages and state of health, but there is little doubt that these circumstances, too, will be contemplated. 

In Singh v Singh (1983) (1) SA 781 (C), the Court decided that the wife’s misconduct with another man amounted to ‘substantial misconduct’ and outweighed the fact that the marriage has lasted 20 years. One of the factors which influenced the Court in the case of Soupionas v Soupionas 1983 (3) SA 757 (T) in its decision not to make a forfeiture order for which both parties, on different grounds, had applied was that they had lived together for nine years before their marriage. 

Section 9(1) does not empower the Court to award ’portion of an errant husband’s separate estate’ to his wife (see Rousalis 1980 (3) SA 446 (C)). Forfeiture is limited to the ‘benefits of the marriage’, presumably to the extent to which the penalized spouse is still enriched thereby.

The Court, in exercising its discretion under section 9(1), may declare a specific asset – a house, a farm, shares or a certain sum of money – forfeit, or it may make a forfeiture order in general terms, such as, ‘half of the patrimonial benefits which the husband [or the wife] has derived from the marriage shall be forfeited to the wife [or the husband], or, more specifically, ‘the patrimonial benefits derived by the husband [or the wife] from the marriage by virtue of community of property and community of profit and loss [by virtue of the accrual system] shall be forfeited by him [her] to the wife [husband]’. 

As section 9(1) provides that the Court may only grant a forfeiture order ‘when a decree of divorce is granted’, it appears that a Court may not grant such order later.

 

September 28, 2021

Section 10 of the Births and Deaths Registration Act is unconstitutional.


 In the case of Centre for Child Law v Director-General: Department of Home Affairs and Others the Constitutional Court declared section 10 of the Births and Deaths Registration Act 51 of 1992 (Act) invalid and inconsistent with the Constitution to the extent that it prohibits an unmarried father from giving notice of the birth of his child under his surname, in the absence of the child’s mother or without her consent. 

In 2016, Menzile Lawrence Naki, a South African man, and Dimitrila Marie Ndovya (Ms Ndovya), a woman who is a citizen of the Democratic Republic of Congo (DRC), sought to register the birth of their daughter, born in Grahamstown on 1 February 2016, with the Department of Home Affairs (Department) in Grahamstown.  Before their daughter’s birth, Ms Ndovya travelled to and from South Africa to the DRC on a visitor’s visa.  Shortly before their daughter was born, Ms Ndovya’s visa expired.  Due to her pregnancy, she could not renew the visa or travel back to the DRC. 

The Department refused to register the child’s birth on the basis that the mother (Ms Ndovya) lacked a valid visa or permit and could not comply with certain Regulations on the Registration of Births and Deaths, 2014 (Regulations).  The couple subsequently brought an application to the High Court to review and set aside the decision refusing to register their daughter’s birth and challenged the constitutionality of the relevant Regulations.  The Centre for Child Law was admitted in the High Court as an intervening applicant.  It sought orders declaring sections 9 and 10 of the Act and sub‑regulations (3) and (5) of Regulations 3, 4 and 5 and Regulation 12(1) of the Regulations unconstitutional. 

The Court found that, even though section 9 empowers an unmarried father to give notice of his child’s birth, the exercise by an unmarried father of his right under section 9(1) is contingent on either the mother’s presence or her consent, in terms of section 10.  In effect, section 10 presents a bar to a father giving notice of the birth of his child under his surname in the mother’s absence.  The Court thus declared section 10 invalid and inconsistent with the Constitution. This declaration was suspended for 24 months to allow Parliament to cure the defects.  As an interim remedy, the Full Court read words into the section to apply during the period of suspension.

 It found that section 10 does limit the ability of an unmarried father to confer his surname on his child.  Applying the test laid out in Harksen v Lane N.O. it found that there is no justification for differentiating between married and unmarried fathers in relation to conferring a surname on a child and accordingly, section 10 is unconstitutional, invalid and amounts to unfair discrimination on the listed grounds of marital status, sex and gender, which is prohibited by section 9(3) of the Constitution.  It also held that section 10 of the Act impairs the dignity of both unmarried fathers, whose bonds with their children are deemed less worthy, and the children of unmarried parents. 

In relation to the child, the main judgment found that the concept of “illegitimacy” and differential rights for children born in and out of wedlock is inconsistent with the principle in section 28(2) of the Constitution that the rights of the child are paramount.  It held that section 10 also constitutes an infringement on a child’s right not to be discriminated against on the grounds of social origin or birth.  For all of these reasons, the main judgment concluded that section 10 of the Act is manifestly inconsistent with the rights to equality, dignity and the best interests of the child and invalid to the extent that it limits the rights of unmarried fathers to give notice of the birth of their child in their surname.  It ordered that section 10 of the Act be severed in its entirety and that the proviso in section 9(2), stating that section 9(2) is “subject to the provisions of section 10” is similarly severed by reason of the declaration of constitutional invalidity of section 10.  It ordered that the declaration of invalidity take effect from the date of the order. 

In a dissenting judgment, Mogoeng CJ, with Mathopo AJ concurring, acknowledged that section 10 of the Act does discriminate against unmarried fathers on the basis of marital status.  However, he held that the discrimination is reasonable, justifiable, and fair. 

He held that children are vulnerable, and their best interests are of paramount importance when issues that concern them have to be addressed.  The CJ further reasoned that they must be protected and not be exposed to the risk of being easily claimed and “adopted” by people whose relationship with them or suitability to be in their lives, has not been established.  He also held that the declaration of section 10 as constitutionally invalid, and the deletion of “subject to the provisions of section 10” in section 9(2) of the Act and the order, by the majority judgment, constitute serious risks to the best interests of a child. 

In conclusion, he held that sections 9 and 10 of the Act are capable of being read in a manner that is constitutionally compliant.  He therefore refused to confirm the declaration of unconstitutionality and set aside the orders made by the courts below with no order as to costs.