Procedural requirements relating to information sought from a public body regarding the Promotion of Access to Information Act 2 of 2000 (“PAIA”).

 

 

Section 32 of the Constitution of the Republic of South Africa, 1996  provides that everyone has the right of access to any information held by the state and any information that is held by another person that is required for the exercise or protection of any rights. 

PAIA is the legislation envisaged in terms of section 32 (2) of the Constitution of the Republic of South Africa. 

From 1 July 2021, the Information Regulator takes over the oversight of PAIA in South Africa. PAIA has been in effect since 2002 but will now have a more significant impact with the appointment of a dedicated regulator to enforce it. 

S11 of PAIA firstly emphasises that it is peremptory for a requester of information to comply with all procedural requirements set out in PAIA when requesting information from a public body. 

A requester “must” be given access to the information on the condition that the procedural requirements are complied with and that the information requested is not protected from disclosure by one of the exemptions set out in the Act. 

What are some of the procedural requirements?

·         Public bodies must publish a Manual that provides guidelines to members of the public on how the information they hold is to be made available to requesters. 

·         Some public bodies have designed their unique form for the requesting of information. However, the prescribed form A, which applies to all public bodies, can be used and is attached as an annexure to the Regulations regarding the Promotion of Access to Information, promulgated in Government Notice 187, Government Gazette 23119 dated 15 February 2002. Therefore, it is essential to obtain the Manual of the public body in question and ensure that the guidelines contained therein are complied with, such as completing the correct form requesting information.  

·         The requester must send the prescribed form to the listed Information Officer and to the recorded email address. 

·         A required fee may be applicable if the information is not freely available. 

·         The requester must provide sufficient particulars to enable an official of the public body to identify the record or records requested. 

·         The requester must indicate which appropriate form of access is required and state whether the record concerned is preferred in a particular language. 

·         Details of a postal address or fax number of the requester in the Republic of South Africa. 

·         If in addition to a written reply, if the requester wishes to be informed of the decision on the request in any other manner, to state that manner and the necessary particulars to be so informed. 

·         If the request is made on behalf of a person, the requester must submit proof of their capacity to the reasonable satisfaction of the information officer must be submitted. 

It is therefore crucial that all the procedural requirements are adhered to by a requester. Failing compliance, a public body is not obliged to provide the information, and the requester is not entitled to the information.

 

 

The test for foreseeability of harm

 

The true criterion for determining negligence is whether in the particular circumstances of each specific case the conduct complained of fell short of the standard of the reasonable person. A court can’t seek guidance from the facts and results of other cases.

In Pick 'n Pay Retailers (Pty) Ltd v Pillay (900/2020) [2021] ZASCA 125 (29 September 2021) the Supreme Court of Appeal had to decide whether the appellant, Pick ’n Pay Retailers (Pty) Ltd (the defendant), was negligent in the operation of an automated Centurion Sector boom gate (the boom) controlling the exit of vehicles from a parking area for persons with special needs and parents with small children at Pick ’n Pay Hypermarket in Durban North. The plaintiff was injured when the boom struck on her head as it descended from a vertical position.

The plaintiff instituted proceedings against the defendant, alleging that the defendant should reasonably have foreseen the possibility that the boom could cause injury to persons frequenting the shopping centre, and failed to take steps to guard against such occurrence.

Although the risk of the boom descending and striking a person was reasonably foreseeable, counsel for the defendant submitted that the plaintiff had not proved that the defendant was negligent. 

The court cited various authorities and authors:

 In Kruger v Coetzee, Holmes JA formulated the test for negligence as follows:

‘For the purposes of liability culpa arises if:

(a)    A diligens paterfamilias in the position of the defendant-

(i)    would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii)    would take reasonable steps to guard against such occurrence; and

(b)    the defendant failed to take such steps.’

In Sea Harvest Corporation, Scott JA stated that dividing the issue of negligence into various stages, however useful, was no more than an aid or guideline in resolving the issue: in the final analysis the true criterion for determining negligence was whether in the particular circumstances the conduct complained of fell short of the standard of the reasonable person. There is no universally applicable formula which would prove to be appropriate in every case.

In the light of recent authorities, J R Midgley and J C van der Walt in Lawsa have made the following observation:

‘When assessing negligence, the focus appears to have shifted from the foreseeability and preventability formulation of the test to the actual standard: conduct associated with a reasonable person. The Kruger v Coetzee test, or any modification thereof, has been relegated to a formula or guide that does not require strict adherence. It is merely a method for determining the reasonable person standard, which is why courts are free to assume foreseeability and focus on whether the defendant took the appropriate steps that were expected of him or her.’

Applied to the present case, the question is thus whether in the particular circumstances, the defendant took appropriate steps to avoid injury to pedestrians.

‘Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case. No hard and fast basis can be laid down. Hence the futility, in general, of seeking guidance from the facts and results of other cases.’

The SCA found that, in the particular circumstances, the defendant’s conduct fell short of the standard of the reasonable person. In the result the appeal was dismissed with costs.

 

 

 

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.

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.

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.