Is the disclaimer at the foot of your email enforceable?

As far as I have been able to establish, no court has pronounced on the enforceability of email disclaimers.

Generally, they seek to impose a contractual obligation between the sender and recipient. In terms of the law of contract, unilateral contracts are generally unenforceable, even in the form of email disclaimers.

However, the doctrine of vicarious liability applies equally to emails as it does to other forms of correspondence. If the recipient reasonably believes the email was sent by someone representing the company, he or she can conclude that the content of that email represented the views of the company. If the email was defamatory of the recipient, he or she could sue the company. The exception to this is where the recipient has good reason to believe that the sender was not acting on behalf of the company, but was in fact acting on ‘a frolic of his own’.

The types of legal problems that can be caused by an email are numerous and could include claims for Defamation, Misrepresentation, Breach of Confidentiality, Sexual Harassment and Virus contamination of a recipient’s network.

Even if the recipient of your email does nothing to signify acceptance of the disclaimer, the chances of the disclaimer being effective are improved if:

·         the disclaimer appears at the top rather than the bottom of the email. In this way, the email comes to the attention of the recipient before he or she has read the contents of the email so that in the same way as a fax cover sheet disclaimer, the recipient can make an informed decision whether to continue reading the contents.

·         if the recipient has received emails from the sender before, it could be argued that s/he knew and accepted the contents of previous email disclaimers and should exercise care in continuing the exchange of emails if s/he is unwilling to accept the terms of such disclaimer.

The actual content of the disclaimer is important. It should anticipate areas of potential liability as contemplated by the common law and statute, such as the Consumer Protection Act and the soon-to-be enacted Protection of Private Information Act.

A company can and should minimise the damage that it could suffer at the hands of its employees who may send embarrassing or offensive emails. What procedure should it follow?

Every company should have a detailed Email and Internet Use Policy in place, that must be signed for in writing by every staff member. The policy should set out the sanctions for various types of breach of the policy. Let Bregmans help you design this policy.

I recommend that your emails begin with this disclaimer:

The contents of this e-mail and any attachments are confidential, may be privileged and are intended solely for the use of the named recipient(s). If you have received it in error, do not disclose, distribute, or retain it or any part of it, and please notify the sender immediately and delete the e-mail.

And end, below your signature, with:

E-mail is not necessarily secure or error free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or contain viruses. We endeavour to exclude viruses from our e-mails. However, it is the responsibility of the named recipient(s) to ensure that e-mails and all attachments are virus free. Name of your company accepts no liability or responsibility of whatsoever nature should information or data be corrupted, or fail to reach its intended destination or be accessed by anyone other than the addressee, for whatever reason or cause.

Are your sectional title affairs in a mess (your body corporate owes a fortune in arrear municipal charges)?

You may consider appointing an administrator to halt legal proceedings and negotiate a way out.

The Application to appoint an Administrator for a fixed period with the purpose of rehabilitating the scheme, is brought in terms of section 16 of the Sectional Titles Schemes Management Act.

It is our experience, particularly where there is a large amount outstanding in municipal debt, the Council is more at ease negotiating a settlement with a court appointed Administrator than with Trustees. An Administrator ‘takes the place of the Trustees’ for a period, and as a completely independent third party making all the decisions affecting the scheme (including harsh steps relating to debt collection), removes the stress and pressure that you may currently be experiencing.

An attorney (we can help) would bring an application to the High Court for the appointment of the administrator.

We would require a copy of a current levy roll, bank account balance, latest audited financial statements and a summary from the Trustees of the state of the building in respect of maintenance and repair requirements. We also need to know the approximate amounts currently outstanding to creditors and a copy of the most recent municipal accounts.

Once we have assessed the situation, we will advise you of the legal costs of bringing the Application, as well as an indication of the time it will take before the Administrator is appointed and can begin the rehabilitation process.

Contracting with a trust

If you buy a property in the name of a company, the offer to purchase can state that Joe Bloggs acts in his capacity as an agent of a company to be formed. This is perfectly valid in that the company can subsequently ratify the offer.

This is not the case with trusts. The following principals apply:

·         All contracts must be concluded with an already-established trust;

·         All (or in the case of some trusts, a majority of) trustees must consent in writing to the contract before entering into contracts on behalf of a trust. If there is no prior written authority (usually in the form of a resolution), the contract will be void;

·         A void contract cannot be rectified by ratification (i.e. the remaining trustees can’t approve – and thereby resurrect – a void contract after it has been signed).

This was confirmed by our Supreme Court of Appeal in the case of Thorpe and Others v Trittenwein and Another 2007 (2) SA 172 (SCA). In this case one trustee (who was also the founder and a beneficiary of a trust) signed a sale agreement for the purchase of land without the prior written authority of the other trustees. The other trustees subsequently ratified the first trustee’s act but the Court held that this was not possible and the seller was free to sell to someone else.

·         Trustees can only exercise a power if that power is given to them in the trust deed. If, for example, the trust deed doesn’t give the trustees the power to buy and sell property, a unanimous resolution of trustees to do so doesn’t cure this defect – the agreement will still be void.

So if you are about to enter into a contract with a trust, make sure that the trust deed gives the trustees the authority to contract with you, satisfy yourself that the trustees are who they claim to be (see latest Letters of Authority for the trust) and ensure that an appropriate resolution is in place, signed by all the trustees.

Is an unregistered marriage contract binding on the parties?

In a case heard in the High Court of KwaZulu-Natal, (KS v MS [2015] JOL 33262 (KZD)), in a divorce action between the parties, two issues were separated and were now before the Court.

1. The first issue was whether the signing of a power of attorney by the parties and the initialling of a draft antenuptial contract constituted a recognisable antenuptial contract, and accordingly whether the parties were married in or out of community of property. 

2. If the parties were married out of community of property with the application of the accrual system, the question was whether the date for determination of any such accrual should be litis contestatio (the stage in litigation when the pleadings are closed) or the date of divorce. 

Prior to their marriage, the parties had signed a power of attorney that authorised an attorney to appear before a notary public and to execute an antenuptial contract on their behalf. Unknown to the parties, the antenuptial contract was not executed and registered in the deeds office. The plaintiff therefore contended that the marriage was in community of property.

Held that although the antenuptial contract was not registered, the plaintiff conceded that prior to the marriage, the parties agreed that their marriage would be governed by an antenuptial contract. Although an antenuptial contract which has not been registered in accordance with the provisions of section 87 of the Deeds Registries Act 47 of 1937 is of no force or effect as against any person who is not a party thereto, it would be valid and binding as between the parties because the unregistered contract would reflect the common intention of the parties at the time the contract was entered into. The Court therefore found that an informal antenuptial contract existed in this case.

The Court then turned to consider the date for determination of accrual. The practical effect of litis contestatio being the date of determination of accrual is that the trial is expedited and the temptation to squander assets is limited. It was held that the date for determination of accrual was at litis contestatio.

Change the registered office of your company!

https://www.bregmans.co.za/commercial-law/

It is no longer possible for a company to use an address chosen for convenience (e.g. of its auditors) as its registered address. Company management should ensure that CIPC's records reflect the company's registered office as the address of its office. If there is more than one office, then the address of the principal office should be used.

A company can change its registered office by filing a notice of change of registered office with the CIPC. There is no filing fee payable.

The Western Cape High Court considered the issue of the 'residence' of a company under the new Companies Act (the '2008 Act') in the matter of Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf and Country Estate (Pty) Ltd.

The judgment highlights the changes introduced by the 2008 Act relating to a company's registered office as well as the impact of these changes on the court having jurisdiction over proceedings involving the company in certain circumstances.

Judge Binns-Ward found that under the 2008 Act:

• a company's registered address must be the address of its office;

• if the company has more than one office, its 'principal office' must be its registered office in accordance with section 23(3). The term 'principal office' is not defined in the 2008 Act. Looking at the 2008 Act's requirements as to what must be kept at its registered office (sections 24 and 28), the court concluded that the principal office should be the place where "the company's general administration is centered" in other words where the "administrative business of the company is principally conducted";

• the transitional provisions in Schedule 5 of the Act do not deal with a pre-existing company's registered office and accordingly section 23(3) applies equally to such companies (a 'pre-existing company' is a company that was incorporated before 1 May 2011 under the Companies Act 1973); and

• the place where the company's registered office is situated determines where a company resides and therefore which court has jurisdiction in proceedings affecting the status of a company, such as liquidation and business rescue proceedings. (Before the 2008 Act came into effect, it was possible for a company to reside at more than one place and one could elect to institute proceedings using, for example, either the place of its registered office or its principal office.)