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.

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.

Leaving this mortal coil – taking care of your digital and physical assets

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: https://www.bregmans.co.za/wp-content/uploads/2018/03/WISHES-AND-MEMORIES.pdf

To prepare for your death, I advise you to: 

·         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; 

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

·         List important numbers for your executors, such as the name of your broker, lawyer, doctor, dentist, financial advisor, etc.; 

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

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

·         List codes for your security system, and where to find keys for your safe deposit box, post office box, etc.;  

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

·         List all your virtual accounts, user names and passwords (ranging from email accounts to your social networking profiles on 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.  

·         Create a digital estate plan (in your will or in a letter of wishes) Instructing your executors whether to keep your social media sites current or delete them. You may, for example, want your executors to notify your friends or connections of your passing, and to keep the sites open, as a memorial. If you decide to memorialize your accounts, Twitter and Facebook will shut down your account, but your executors can set the privacy so that only confirmed family and friends can see the profile and leave posts on the profile Wall, in remembrance. You should nominate someone who is technically savvy to manage the digital side of your estate.

Small Claims Court - jurisdiction increased to R20,000 from 1 April 2019

Institute your own claim!

1.       Who may institute a claim?

• Anyone except juristic persons such as companies, corporation or association.
• A person under the age of 18 must be assisted by his/her parent or legal guardian.

2.       Against whom may a claim be instituted?

• Except for the state, against anyone, including companies, corporations, municipalities or other entities within the area of jurisdiction of the court.

3.       What amount can be claimed?

• An amount not exceeding R20000.
• If your claim exceeds R 20000 in value, you can institute a claim for a lesser amount in order to pursue your case in the small claims court.

4.       What matters are excluded from the jurisdiction of the court?

• Claims exceeding R 20000 in value.
• Claims against the State.
• Claims based on the cession or the transfer of rights.
• Claims for the damages in respect of defamation, malicious prosecution, wrongful imprisonment, wrongful arrest, seduction and breach of promise to marry.
• Claims for the dissolution of a marriage.
• Claims concerning the validity of a will.
• Claims concerning the status of a person in respect of his mental capacity.
• Claims in which specific performance is sought without an alternative claim for payment of damages, except in the case of a claim for rendering an account or transferring movable or immovable property not exceeding R20000 in value.

5.       Are you compelled to institute your case in the small claims court?

-                      No, you may choose whether you want to institute it in the small claims court or any other competent court.

6.       Legal representation and assistance in the preparation of your claim.

• Representation by an attorney or advocate is not allowed. You may, however, at your own cost obtains prior advice from an attorney.
• Legal assistants and clerks of the Small Claims courts will assist you free of charge.

7.       Interpreters

• Any of the official languages of South Africa may be used in the court.
• Arrangements for an interpreter must be made with the clerk of the court beforehand if evidence is to be given in language with which one of the parties is not sufficiently conversant.

8.       How to institute a claim

• Contact the opposing party (the person against whom you are instituting legal proceedings) in person, by telephone or in writing, and request him her or it to satisfy your claim.
• If the opposing party does not comply with your request, address a written demand to him (setting out the amount of the claim) affording him a minimum of 14 days from the date of receipt of your written demand to satisfy your claim.
• Deliver the demand by hand or by registered post to the opposing party (the person against whom you are instituting a claim).
• After a lapse of a period of 14 days, report in person to the clerk of the court with your proof that the demand was delivered to the opposing party.

9.       What to take along to the clerk of the court?

• Your written demand and the proof (e.g. post-office registered slip) that it was delivered.
• Any contract, document or other proof upon which your claim is based or that has regard thereto.
• The full name and address (home and business addresses, if available) and telephone number of the opposing party.

10.    What are the duties of the clerk of the court?

• He and the legal assistant will examine your document and assist you in drawing up a simple summons.
• He will inform you of a date and time for the hearing of the case.
• He will issue the summons and hand it to you.

11.    What do you do with the summons?

• You can serve the summons on the opposing party in person. (try to obtain an acknowledgement of receipt), OR
• You can hand the summons, together with the sheriff’s service fees, to the sheriff in whose district the opposing party resides for service on the opposing party.

12.    What do you do then? 

• Where the sheriff has served the summons, before the date for the hearing of your matter, get the return of service (his written proof that he has served the summons).
• Keep the contract, document or other proof upon which your claim is based at hand.
• Inform your witnesses of the date and time the case will be heard and arrange for them to be present in court at the appointed date and time.

13.    Possible steps by the opposing party after receipt of the summons.

• He may pay you the amount of your claim.
• He may deliver a written statement, containing the nature of his defense and particulars of the grounds and which it is based, to the clerk of the court and send thereof to the applicant.
• He may institute a counterclaim by delivering a written statement contains particulars as those required for a summons to the clerk of the court.
• If a plea or a counterclaim is instituted, the court proceeding must still be attended.

14.    What do you do if the opposing party has satisfied your claim in the meantime?

• Supply him with a written receipt.
• Inform the desk of the court immediately that your claim has been satisfied and that you will no longer proceed with the case.

15.    What do you do on the appointed date and time of the hearing?

• You must appear in court in person.
• Ensure that you have with you all the documents upon which your claim is based.
• Ensure that all your witnesses are present.
• Ensure that you have the written proof that the summons was served on the opposing party.

·                     If you served the summons personally, the clerk of the court will assist you in preparing an affidavit to that effect, to hand up to the Small Claims Court Commissioner.

16.    The hearing

·                     The court procedures are informal and simple.

·                     No advocate or attorney may appear on your behalf.

·                     The commissioner of the court will request you to state your case as concisely as possible.

·                     Answer the questions of the commissioner and submit your exhibits.

·                     No cross- examination between the parties is allowed. With the commissioner’s permission you may, however, put a few questions to the opposing party.

·                     Listen attentively to the opposing party’s explanations and once he has finished talking, bring to the attention of the commissioner any facts which in your opinion he has not presented correctly.

·                     After the commissioner has heard you, your opposing party and any witnesses that may be present, the court can pass judgment. (The commissioner may also indicate that he will notify you of his judgment in writing at a later stage.)

17.    Steps following judgment

·                     In case judgment is given against you, the judgement of the court is final, unless some ground for review exists.

·                     Settle any order for costs that the may make against you.

·                     The only possible costs can be those that the opposing party may have had in respect of fees for the sheriff.

·                     Abide by the decision of court.

18.    If judgement is given in your favour.

·                     Your opposing party will immediately pay you the amount of the judgement, if he has the money available. Give him a receipt for the amount immediately.

·                     In case your opposing party cannot comply with the judgement forthwith, the Court will investigate his financial position and his ability to settle his judgement debt and costs and make an order for payment in monthly installments.

19.    If the judgement debtor fails to comply with the judgement or order of the court.

·                     If the judgement debtor fails to comply with the judgement of the Small Claims court and you want to enforce the judgement, the matter is transferred to the magistrate’s courts and the execution procedure, as prescribed by the Magistrate’s Courts Act, 1944 (Act 32 of 1994), is followed.

·                     It is advisable to make use of legal representation with this procedure.