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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”.

June 10, 2019

What is defamation?

Defamation occurs If someone unlawfully and intentionally publishes a defamatory statement concerning you that lowers your good name and reputation in the eyes of the community.

You may be able to sue someone in court to compensate you for injured feelings and for the hurt to your dignity and reputation that you suffered by what someone said about you or published in an email, in a newspaper or magazine or on social media. The publication does not have to be in writing – e.g. someone can defame you in a pub in front of other people.

The court will assess the amount of the damages you may claim based on circumstances of your case and the prevailing attitudes of the community in which you live or practise your trade or profession.

To succeed in any claim, you must prove that that the remarks concerning you were defamatory (offending words that harmed your reputation), intentional (the person set about damaging your good name) and unlawful (would an unbiased person view the statement as unacceptable), that they referred to you directly and were published (other people heard the defamatory remarks, read them in a newspaper, magazine or in social media, etc.)

The factors which the court may consider include:

·         The nature of the defamatory statement
Given the changed morality of our times, if someone calls you a liar and a thief, this would likely cause greater hurt to your dignity and reputation than a statement that you are an adulterer.

·         The nature and extent of the publication
A defamatory statement published in the Sunday Times that has a very large readership as opposed to one in the Nelspruit Herald may attract a higher award of damages.

·         The reputation, character and conduct of the plaintiff
Someone who enjoys a reputation of high moral character will likely be able to claim more than someone who is of dubious integrity.

·         The motives and conduct of the defendant
The court would award more damages to someone that acts out of pure malice and embarks on a deliberate and unfounded attempt to destroy your reputation, as opposed to a person that thinks that he or she acts out of a sense of perceived duty.

·         Dignity and privacy v. freedom of expression
The court must weigh up your constitutional rights of dignity and privacy on the one hand, and freedom of expression on the other.

Defences to claims for defamation
There are three defences in South African law that justifies a defamatory statement: If the statement is true and in public interest (the statement is substantially true and the public has a legitimate interest in hearing it); the statement is seen as a fair comment (allowing freedom of expression) and if the statement is made on a privileged occasion (a  certain type of relationship exists between the person making the defamatory statement and the person to whom the content was communicated, for example an attorney-client relationship).

June 05, 2019

Must a store sell me an item as advertised or on the price tag?

Have you ever seen a product offered for sale at a ridiculously low price? If this is clearly a mistake, can you take advantage of it?

The short answer is no for displayed prices, but it’s less clear for advertised prices. The Consumer Protection Act (CPA) deals with “pricing errors”.

Section 23 of the CPA (dealing with displayed prices )provides that ‘a retailer must not display any goods for sale without displaying to the consumer a price in relation to those goods’ and ‘a supplier must not require a consumer to pay a price for any goods higher than the displayed price for those goods.’ The supplier is, however protected, as the section provides a rider: If a price as displayed contains an inadvertent and obvious error, the supplier is not bound by it after correcting the error in the displayed price and taking reasonable steps in the circumstances to inform consumers to whom the erroneous price may have been displayed of the error and the correct price.

Section 30 (that deals with advertised prices) says this: “A supplier must not advertise any particular goods or services as being available at a specified price in a manner that may result in consumers being misled or deceived (about) the actual availability of those goods or services from that supplier, at that advertised price.
“If a supplier advertises goods as being available at a specified price, and the advertisement expressly states a limitation in respect of the availability of those goods, the supplier must make those goods or services available at that price, to the extent of the expressed limits.”

If the supplier runs out if stock, it can source elsewhere the same or equivalent goods of the kind advertised within a reasonable time, in a reasonable quantity, and at the advertised price.

This section does not specify how errors are to be dealt with, nor what the position is if a limit was not placed on the numbers available.

The Consumer Tribunal or the courts will in time remove the confusion. I’m sure that a supplier will be protected if the price is an “inadvertent and obvious error”.
Besides, on a practical level, even if the consumer is entitled to pay the “error” price and the supplier bears the risk and costs associated with errors, which consumer will want to spend time and effort (and perhaps legal fees) to take advantage of the mistake?

My advice to suppliers: in your shop, put up a disclaimer dealing with “inadvertent and obvious errors” and in advertisements, limit the number of items available and the duration of the offer. Also, make sure the price in the ad is correct and not stupidly low.

Bottom line: Although the CPA protects consumers and ensures that they know the total price that they are to be charged for the goods, and that the price is fair, it does not entitle consumers to an unfair price benefit or to take advantage of the supplier.

June 02, 2019

When is a post on Facebook defamatory in South Africa?



In the 2012 case of H v W, heard in The Johannesburg High Court, Judge Willis had to determine if this post on Facebook was defamatory and, if so, entitled the applicant to an order interdicting and restraining the respondent from posting any information pertaining to the applicant on Facebook or any other social media, or face imprisonment for 30 days or more:


I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken-hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to take responsibility for the consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, do you still see a man?


The applicant complained that the posting in question published information which portrayed him as: (i) A father who does not provide financially for his family; (ii) A father who would rather go out drinking than caring for his family; (iii) A person who has a problem with drugs and alcohol.


In an exchange of affidavits, the respondent averred that she “posted the posting not to defame the applicant but in order for the applicant to reflect on his life and on the road he had chosen”.


The judge had to consider our ancient Roman and Dutch laws, juxtaposed against our common law and Constitution, regarding the rights both to privacy and to freedom of expression. The judge stated that the “social media, of which Facebook is a component, have created tensions for these rights in ways that could not have been foreseen…” He added that “it is the duty of the courts harmoniously to develop the common law in accordance with the principles enshrined in our Constitution.”


After considering privacy and freedom of expression issues, the judge affirmed “the principle that the test for determining whether the words in respect of which there is a complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned. The words of the posting on Facebook which are in issue in this case indeed contain the defamatory meaning of which the applicant complains.”


The respondent raised two defences to the application, namely that the post was justified as it was true, and fair comment.


Regarding the defence of truth, the judge found that not only must the published words be true as a defence to or a ground of justification for a defamation, they must also be to the public benefit or in the public interest that they be published. He found that “it is neither to the public benefit or in the public interest that the words in respect of which the applicant complains be published, even if it is accepted that they are true”.


In Crawford v Albu it was held that in order to qualify as ‘fair comment’, the comment ‘must be based on facts expressly stated or clearly indicated and admitted or proved to be true’.


Judge Willis found that the respondent “has been unable to justify her posting. Furthermore, malice or improper motive by the perpetrator of the comment also acts to defeat the defence of fair comment. The background to the posting, together with the words themselves, indicates that the respondent acted out of malice when she posted the offending comments”.


The judge also found that the posting was unlawful.


The judge dealt with the ability to remove a Facebook post (as opposed to a defamatory article in a newspaper or magazine) and stated that:


It is in respect of the remedy where infringements of privacy take place in the social media that the common law needs to develop. The social media form a subset of the electronic media but are not coextensive with it: the social media are all part of the electronic media but not all the electronic media are social media. … Not only can items be posted and travel on the electronic media at a click on a computer in a moment, in an instant, at the twinkling of an eye, but also they can, with similar facility, be removed therefrom. This can also be done at minimal cost. The situation is qualitatively different from the scenario where newspapers have been or are about printed in hardcopy and distributed. The law has to take into account changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people…”.


The respondent contended that the applicant could have approached Facebook, reported the abuse and asked for the posting to be blocked. The judge found that “There is nothing before me to assure me that Facebook would comply with such a request”.


[Currently, Facebook has a Defamation Reporting Form

https://www.facebook.com/help/contact/732748663560891 intended for reporting content posted on Facebook that you believe is defamatory under the law or otherwise violates your personal legal rights.]

The judge then found that: “The applicant has been substantially successful inasmuch as he came to court seeking an interdict and has obtained it. He is entitled to his costs. The following is the order of the court: (a) The respondent is to remove all postings which she has posted on Facebook or any other site in the social media which refer to the applicant. (b) The respondent is to pay the applicant’s costs in this application”.

April 21, 2019

Payments in full and final settlement

The question to ask is whether the payment is tendered after a dispute has arisen in respect of which there have been negotiations or litigation, or whether it is made in isolation. In summary:

1.   The acceptance by a creditor of a tender made in full and final settlement may, depending on the circumstances, amount to a settlement of the debt. The meaning of the expression ‘in full and final settlement’ depends on the context in which it is used.

2.  As a rule, the sending of money (in the past, a cheque) ‘in full and final settlement’ of a debt amounts to an offer of compromise, especially if the money is accompanied by a denial of liability. The offer carries with it the implied condition that, should the money be accepted, the claim is settled. Be Bop a Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd [2008] 1 All SA 529 (SCA), 2008 (2) SA 327 (SCA).

3.  A creditor who accepts payment also accepts the offer of compromise. A creditor who does not wish to compromise must return the money tendered and sue for the full amount. ABSA Bank Ltd v Van de Vyver NO [2002] 3 All SA 425 (A), 2002 (4) SA 397 (SCA).

4. Such settlement presupposes an existing dispute in relation to the indebtedness. Karson v Minister of Public Works 1996 (1) SA 887 (E)

In the Karson case , the court stated that what was required was to examine the facts and see what the context was in which the payment is tendered , i.e. whether payment is tendered after a dispute has arisen in respect of which there have been negotiations or litigation, or whether it is made in isolation.

What is apparent from the cases is that a debtor can tender part payment of a debt with the following two intentions:

a.    To settle only the admitted portion of the debt and leave the disputed portion thereof to be decided by the court, i.e. to make a part payment and thus narrow the extent of the dispute; or

b.    To settle the entire debt, and thereby extinguish any right that the Creditor might have had to recover the balance.

April 06, 2019

When can conversations recorded without your consent be used against you

Today it is so easy for an employer or employee to record a conversation, using a cellphone.

Must the other party consent to such recording, before it can be used for or against him or her in a court of law, disciplinary enquiry, etc.?

In summary:

·         Section 14 of our Constitution provides that everyone has the right to privacy, which includes the right not to have the privacy of their communications infringed.

·         An employer is entitled to breach the privacy or secrecy of an employee if it can prove that the employee gave his or her consent or that the breach was justified by necessity or in the interests of justice to do so.

·         It is not illegal for a person to record or intercept conversations that they are party to. Section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (“RICA”) provides that any person, other than a law enforcement officer, may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence. 

·         Section 35(5) of the Constitution of South Africa provides that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence renders the trial unfair or will otherwise be detrimental to the administration of justice. This would of course mean that if evidence (such as audio recordings) is obtained in a manner that violates an employee’s right to privacy, it would not be admissible. However, section 35(5) of the Constitution qualifies this to essentially provide that such evidence would be admissible if it is in the interests of justice to do so.

·         The Labour Court has made it clear that employers may, in appropriate circumstances, utilise recorded conversations in disciplinary hearings and legal proceedings as evidence against an employee, considering the relevant facts of each case and the balancing of the respective interests involved.

·         An employer can present evidence in disciplinary hearings or arbitrations in the form of audio recordings (legally or illegally obtained), if doing so would be in the interests of justice and even if obtaining them infringes on an employee’s right to privacy.

·         However, employers are still required to follow a fair process and provide the employee with a fair opportunity to state his case and to respond to the evidence presented against him. 

The case law:
In the case of Protea Technology v Wainer, the court held that in respect of telephonic conversations pertaining to the employer’s affairs and at the employer’s business, there was no legitimate expectation of privacy and the employer was entitled to utilise recordings of such conversations as they were recorded at the employer’s business premises and within business hours. The employer was therefore entitled to require the employee to account for his activities during this time.

In Harvey v Niland and others, evidence was obtained by hacking into the respondent's Facebook account. The court confirmed that South African courts retain a discretion to admit tape recordings into evidence notwithstanding the commission of an offence or the infringement of a constitutional right in obtaining the recording. Thus, regardless of how audio recordings are obtained, they may be admissible notwithstanding the infringement on constitutional rights and especially when in the interests of justice.