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August 11, 2019

Marriage in community of property and suretyships.

Since the introduction of the Matrimonial Property Act of 1984 (the Act), spouses married in community of property share the same rights regarding the disposal of the assets of the joint estate (the combined assets of both spouses), the contracting of debts which lie against the joint estate and the management of the joint estate, subject to certain limitations. An example is a restriction on signing a suretyship on behalf of the joint estate.

If one spouse wants to incur credit on behalf of the joint estate, the credit provider may insist that the spouse binds himself or herself as surety, to guarantee payment.

The Act provides that the spouse shall not bind himself as surety without the written consent of the other spouse, but sets out a proviso: should a suretyship be provided in the ordinary course of a person’s business then such a suretyship is deemed valid even if spousal consent was not given.
What constitutes ‘in the ordinary course’ of that spouse’s business?
the Supreme Court of Appeal (SCA) was asked to answer this question in the case of Ockie Strydom v Engen Petroleum Limited (184/2012) [2012] SCA: Is a spouse bound by a suretyship even though he/she was unaware that his/her spouse had signed one? Or even if a spouse refused to give written consent?

The SCA had to decide what constituted acting in the ordinary course of one’s profession, trade or business. It found that the determination of whether a person acted in the ordinary course of his/her business was a question of fact that must be judged objectively with reference to what was expected of a businessman/businesswoman. For example, if you are a salaried employee and want to buy a car on lease, signing a suretyship will not be in the course of your ordinary business, and your spouse must consent in writing.

The opposite would apply if you are involved in a business such as a company, close corporation, partnership or trust, and have a commercial interest in the business’ success or failure. In this case, you can sign a suretyship and bind the joint estate, even if your spouse did not consent to the suretyship in writing. Thus, no consent is required to sign as surety, despite being married in community of property, as you signed the suretyship in the ordinary course of your business.

August 10, 2019

South African Law of Delict

A “civil wrong”. It basically deals with the circumstances in which one person can claim compensation from another for harm that has been suffered.
Damages in delict are divided into:

1.    patrimonial/special damages (including medical costs, loss of income and the cost of repairs);
2.    non-patrimonial damages/general damages (including pain and suffering, disfigurement, loss of amenities and injury to personality);
3.    pure economic harm (not connected to any physical injury or damage to property).

Three main delictual remedies/actions to deal with damages:

1.    Aquilian action (relates to patrimonial loss):

Harm or Loss – plaintiff must have suffered harm; harm must be patrimonial, which means monetary loss sustained due to physical damage to a person or property.
Conduct must be wrongful (unreasonable and without lawful justification).
One must be at fault, and accountable and one’s blameworthiness must be intentional or negligent.
There must be causation both factual and legal.
Damages – The primary objective is to compensate the person who has suffered harm. To restore the plaintiff’s patrimony and place him in a position he would have been in prior to the act of delict committed on him. Therefore, money is considered an adequate replacement for the lost patrimony. A court will not make an arbitrary award in the absence of available evidence. Where damages cannot accurately be assumed, a court may exercise its own judgment in the matter, provided it has facts.
However, if Plaintiff’s negligent conduct contributes to the loss, this is considered when determining the extent of the Defendant’s liability. This basically reduces the damages award.

2.    Actio iniuriarum (relates to injuries concerning personality)

Essential elements of liability
General elements of delict must be present, but specific rules have been developed for each element. Causation is assumed to be present. The elements of liability under the actio iniuriarum are as follows:
harm, in the form of a violation of a personality right (one’s corpus, acts of a sexual or indecent nature, and wrongful arrest and detention), dignitas (“worthiness,” “dignity” and “self-respect”), and fama (defamation);
wrongful conduct (statements, either oral or in writing, as well as physical contact or gestures, could also arise. The principles are the same as those applicable to the Aquilian action.
Intention (must be at intentional fault – no negligence)
Under the action iniuriarum, harm consists in the infringement of a personality right:
Damages – public policy determines what should be included. For example: the discharge of a duty, the exercise of a right or the furtherance of a legitimate interest.

3.    Action for Pain and Suffering

Relates to pain and suffering and psychiatric injury – derived partly from the Aquilian action, and partly from the use of reparative fines.
Harm or loss: Pain and suffering – personal bodily injury to the plaintiff: for example, actual pain, the loss of amenities of life and the loss of life expectancy.
Conduct: in the form of a positive act, an omission or a statement.
Wrongfulness or unlawfulness: unreasonable conduct.
Fault: blameworthiness in the form of intention or negligence.
Causation: factual causation and legal causation.

June 26, 2019

Criminal Defamation

 Is it a crime to defame someone?

Before 2009 it was uncertain whether the crime existed in our law. In the case of Hoho v The State the Supreme Court of Appeal held that the crime had not ceased to exist because of disuse, that there were no good reasons why it should not still exist, and that its existence was not incompatible with the provisions of the Constitution.

Criminal defamation covers both defamation in writing (libel) and verbal defamation (slander).

The court in Hoho expressly held that violations of a person’s reputation are criminal even if the degree of violation is not serious.

If it is a crime, how willing are the police to prosecute? Prosecutions for this crime are rare, even though people are defamed every day. No-one one has been convicted of this crime for decades. As the authorities have to deal with more serious crimes, it’s unlikely that an offender will be charged criminally. If this were not the case, former minister Manuel would have also sought criminal prosecution against EFF leader, Julius Malema, instead of just suing him for defaming his good name and reputation.

The court defined Criminal defamation as the unlawful and intentional publication of matter concerning another which tends to injure his reputation.

The elements of the crime are the following:

·         the publication of a defamatory allegation concerning another

The case law suggests that words are defamatoryif they tend to expose a person to hatred, contempt or ridicule, or if they tend to diminish the esteem in which the person to whom they refer is held by others”.  A person's good name or reputation can be harmed only if the conduct or words complained of come to the notice of someone other than that person, through publication of the offending words.

·         unlawfully

The person accused of criminal defamation can raise the same defences available to a defendant in a civil defamation action, namely a) that it is the truth and that, in addition, it is for the public benefit that it be made known; (b) that it amounts to fair comment, or (c) that the communication is privileged.

·         intentionally

X must intend to harm Y's reputation by the unlawful publication of defamatory matter concerning him and that he must intend the allegation to refer to Y (and not to somebody else).

June 16, 2019

Employer liability for damages caused by sexual harassment in the workplace

The news is replete today with the Me-Too movement against the widespread prevalence of sexual assault and harassment, especially in the workplace.

When can an employer be liable for acts of sexual assault and harassment by one of its employees?
Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a legal relationship to the person who did act negligently.
Common law
In PE v Ikwezi Municipality and others 2016 (5) SA 114 (ECG) the court had to consider sexual harassment in the workplace, which gave rise to the plaintiff’s Post Traumatic Stress Disorder. She instituted a claim against the perpetrator and the employer for damages in excess of R4 million. 
The question before the court in this matter is like the question in Grobler v Naspers Bpk en n Ander 2004 4 SA 221 (C):
“[Is] the unlawful act sufficiently connected to the conduct authorised by the employer to justify the imposition of vicariously liability? The existence of a significant relationship between the creation or increase in the risk of the commission of the unlawful act and resultant wrong indicated a sufficient relationship for imposition of vicarious liability. Relevant factors were the opportunity presented to the harasser to abuse his authority, the ambit of his authority and the vulnerability of the potential victim to the abuse therefor.” 
The court held that the Ikwezi Municipality placed the perpetrator in the position where he was able to act the way he did. Therefore, the employment relationship facilitated his actions. The implicit trust in the collegial relationship “forged a causal link” between the perpetrator’s position as a Corporate Services Manager and the wrongful behaviour. Ultimately the court held the Municipality vicariously liable for the sexual harassment by its employee. 
The Employment Equity Act (the EEA)
In addition to the common law, employees may have an alternative remedy against the employer in terms of s60 of the EEA. In terms of subsection 2, an employer must take all reasonable steps to eliminate contravention of the Act, which includes sexual harassment. Failure by the employer to take such reasonable steps, will render the employer liable for the conduct of the employee in that the employer will be deemed to have committed the wrongful conduct. The Labour Appeal Court has awarded damages in the amount of R250 000 to an employee who was a victim of sexual harassment. Liberty Group Limited v Margaret Masango (Case no: 105/2015)
To avoid vicarious liability, employers need to be proactive and put into place and strictly enforce a Code of Good Practice on the Handling of Sexual Harassment. More importantly, they need to train staff on sexual harassment in the workplace and put measures in place which provide employees with an effective channel of reporting sexual harassment in the workplace.

Personal information for my survivors upon my death or incapacity

I have posted a Wishes and Memories booklet on our website that will be a clear record of your funeral wishes, a source of important documents for legal and public records, and a permanent keepsake of your fondest memories to speak to future generations.

To save your survivors as much heartache as possible immediately following your death, I advise you to: 

o   Put together a box file containing all your important documents, and tell your nearest and dearest, where it is. In this box file, store your will, marriage contract, insurance policies, title deeds, papers for cars, caravans and boats, timeshare information. and other important papers; 

o   List your creditors (credit card, loans, mortgages, store accounts, etc.);

o   List important numbers for your executor and family, such as the name of your broker, lawyer, doctor, dentist, financial advisor, etc.;

o   Leave a list of family and friends, to contact on your death; 

o   List what happens to your DSTV, armed response, personal and home insurance, etc.; 

o   List codes for your security system, and post office box, etc.; 

o   Describe where you want to be buried or cremated, and your funeral wishes, in general; 

o   List all your virtual accounts, usernames and passwords (ranging from email accounts to your social networking profiles (Facebook, Twitter, LinkedIn, etc.), blog posts, photo or music sharing accounts and digital purchases through for example eBay or Takealot.com. Retain these passwords, with other valuables, in a safety deposit box, to be revealed to your executors, only on your death; 

o   Create a digital estate plan (in your will or in a letter of wishes) Instructing your executors whether to maintain your social media sites.

o   Facebook asks: How do I report a deceased person or an account on Facebook that needs to be memorialized? Memorialized accounts are a place for friends and family to gather and share memories after a person has passed away. Memorializing an account also helps keep it secure by preventing anyone from logging into it.

o   What happens to your Twitter account when you die or become incapacitated? “In the event of the death of a Twitter user, we can work with a person authorized to act on behalf of the estate, or with a verified immediate family member of the deceased to have an account deactivated. In the event a Twitter user is incapacitated, due to medical or other reasons, we can work with a person authorized to act on the behalf of the user to have an account deactivated”.