Defamation and character assasination

 

BECKER V BRITS [2022] ZAWCHC 44

The plaintiff was a very successful farmer who had farmed in his area for over 20 years and was an alumnus of the University of Stellenbosch. The defendant was a pastor to his family for at least 7 years. The defendant wrote letters making accusations about the plaintiff’s alleged abuse of alcohol. The plaintiff alleges that these letters were defamatory and that he suffered damages of R500,000. The defendant contends that the statements were the truth; alternatively, they were fair comments. Moreover, a shield is raised that these statements were neither defamatory nor wrongful and were not made with the intention to defame the plaintiff.

Wille J comments on the defendant’s strategy of character assassination of the plaintiff and that this will make it impossible for the family to function again as a unit. It appeared that the defendant conspired with the plaintiff’s ex-wife to attempt to settle some score with the plaintiff. Tragically, the plaintiff’s children were also hauled into this unnecessary skirmish and feud.

The judge made these comments about defamation laws:

“Defamation laws are generally aimed at protecting a person’s right to an unimpaired reputation and good name. Reputation is the reflection which the individual has in the eyes of society. In Masetlha, the following was stated generally in connection with the career and reputation of an individual, namely: ‘…People live not by bread alone; indeed, in the case of career functionaries, reputation and bread are often inseparable…’”

“As a general proposition the test for defamation is whether, in the eyes of a reasonable person with ordinary intelligence, the words used so impaired a person's good name, reputation or esteem in the community.25 Reasonable readers take into consideration, not only what the words used expressly state, but also the implication of the words used”.

“The words about the plaintiff’s alleged alcohol abuse are clearly defamatory. Publication of a defamatory statement is prima facie wrongful and the onus rests on the defendant to dispel the prima facie case”.

The court awarded Plaintiff damages of R350,000 and costs on the attorney and client scale.

 

Is your property constantly being pelted by golf balls?

 

By Dean Brainin

 

With over 500 golf courses across South Africa, living on or within close range to a golf course has become relatively normal, with new golf courses and developments showing up each year.

 

The difficulty with living on or near a golf course, one has to tolerate the occasional breaking of a window. However, when does this become an unreasonable nuisance?

 

In South Africa, the law of neighbours governs golf ball incidents resulting in property damage. Our courts find no difference if a person lives on or near a golf course.  

 

South Africa's neighbour law provides that neighbours should tolerate a reasonable level of interference/nuisance resulting from neighbouring land. However, when land use affects neighbours that exceeds that moderate level, it becomes unlawful and thus an actionable nuisance.

 

When it comes to golf balls being a nuisance, the main principles to demonstrate are that the nuisance is excessive and occurs continuously or repeatedly. Also, a person's ability to use their property is typically significantly impacted.

 

In the landmark case of Allaclas Investments (Pty) Ltd & Another v Milnerton Golf Club & Others [2007] 167 SCA, Allaclas Investments (that owned property facing the golf course) brought an application against the Milnerton Golf Club. It sought an order that the Club is interdicted from allowing the sixth hole on the golf course to be used for play until the golf course took the necessary steps to reduce the number of stray balls striking the Applicant's property which property lay adjacent to the fairway of the sixth hole of the golf course. The number of stray balls hitting the Applicant's property posed a danger to the Second Applicant occupying the adjacent property.

 

The High Court decided that a landowner of a property adjoining a golf course had to expect and tolerate a certain level of intrusion from stray golf balls. The Applicant had to undertake various steps to alleviate and reduce the problem.

 

On appeal, the Supreme Court of Appeal held that the high incidence of stray balls hit directly into the residential property of the Applicant (875 golf balls between December 2003 and March 2006) posed a severe danger to the Applicant and his family. It thus constituted a nuisance, even considering the Applicant's choice to live on a golf estate. 

 

The court further accepted that the use of the land as a golf course did not constitute an unusual or unreasonable use and that it would be reasonable and expected for those residing on the golf course to tolerate some ingress of badly hit golf balls. However, what the Applicant's had to endure (875 golf balls between December 2003 and March 2006) went considerably further than what a neighbour is obliged to tolerate.

 

In this regard, a person must never forget that when approaching a court for an interdict to prevent or terminate a nuisance stemming from the neighbouring property, a party must show that the use of the adjoining land or the situation that causes the nuisance is excessive and unlawful. The neighbour must also demonstrate that the nuisance occurs continuously or repeatedly. A single occurrence of such a nuisance would be insufficient to obtain an interdict or any similar relief. Moreover, the said nuisance must not be tolerable to the "reasonable man".

 

Elimination of harassment in the workplace

https://www.gov.za/sites/default/files/gcis_document/202008/43630gon896s.pdf

Under the Employment Equity Act, the Minister of Employment and Labour has published on 03 March 2022 the new: CODE OF GOOD PRACTICE ON THE PREVENTION AND ELIMINATION OF HARASSMENT IN THE WORKPLACE. This new Code has repealed the Code on handling Sexual Harassment in the Workplace. Please see attached.

 
The new Code is much broader and covers all forms of harassment against women, men LGBTQIA+ and vulnerable persons in the Workplace. In addition, the new Code provides guidelines on the prevention and elimination of all forms of harassment as a form of unfair discrimination and the human resource policies, procedures and practices related to harassment and appropriate procedures to deal with harassment and prevent its recurrence.

All Employers need to become aware of the new Code as it contains obligations under the EEA which an Employer is required to adhere to, failing which, will render the Employer vicariously liable for the employee's conduct in terms of Section 60 of the EEA. This is the case even if the harassment consists of a single incident.
 
Should you require any assistance in unpacking the new Code or amendment to your current policies, please email.

May an employee monitor an employee's emails?

 

It would be best to have an email monitoring policy regarding employees' private and business use of emails contained in employment contracts. However, how extensive and intrusive should the policy be? 

Our Constitution respects a person's right to privacy. The Protection of Personal Information Act, 2013 ("POPIA") further entrenches personal data protection rights. 

An employer is entitled to expect that employees will not use their emails to violate company policies, use inappropriate language, break confidentiality, or run their own business on company time. 

Employment contracts usually contain clauses dealing with the monitoring and interception of emails. These clauses typically provide that employees should not expect privacy when sending, receiving, downloading, uploading, printing or otherwise transmitting emails. And that employees must use emails for bona fide business purposes only. 

In terms of POPIA, an employer who processes a employees' personal information must: 

·         Do so reasonably and without negatively impacting their rights as data subjects. 

·         Do so with the data subject's informed, express, and voluntary consent. 

·         Explain the purpose of such monitoring interception, to enable the employees to perform their duties and assist the employer in meeting its legal, business, administrative and management obligations. 

Ask your lawyer to help you formulate a formal workplace policy governing employees’ use of their computers and other devices or carefully review and update any policy that is already in place.

 

Should I own my primary residence in my name, a trust, or a company?

Your primary residence is where you and your family live all or most of the year. You can only own one primary residence at a time. 

SARS states that to qualify as a primary residence, a residence:

 

• Must be a structure, including a boat, caravan, or mobile home, which is used as a place of residence by an individual.
• An individual or special trust must own an interest in the residence.
• The individual with interest in the residence, beneficiary of the special trust, or spouse of that person or beneficiary must ordinarily reside in the home and use it mainly for domestic purposes as their ordinary residence. 

The pros of owning my primary residence in my name

 

If you own your home (or own it jointly with your partner), when you sell it, you enjoy a Capital Gains Tax (CGT) benefit – known as the primary residence exclusion. SARS gives an abatement on the first R2 million of a capital gain or loss on disposal of a primary residence. For example, if the gain is R2,5m, R2m must be disregarded, while R500 000 will comprise a capital gain.

 

CGT is a tax levied on profits made from assets purchased at a lower price and sold at a higher price. In South Africa, the current CGT rate is 18 percent for individuals.

 

So, if you own your primary residence in your name, you will enjoy the primary residence exclusion of R2m.

 

The cons of owning your primary residence in your name

 

A property worth R2m today will be worth much more in 20 years.

 

Say your home is worth R20m when you die, the estate duty your estate must pay will far outweigh any CGT benefit.

 

SARS levies Estate duty in terms of the Estate Duty Act 1955 on the dutiable amount of a deceased person's estate. Estate duty taxes the transfer of wealth or assets from the deceased's estate to the beneficiaries. From March 1, 2018, estate duty is 20% on the dutiable amount of an estate that does not exceed R30m and at 25% on the dutiable amount of the estate value exceeding R30m.

 

So, in this example, the Estate Duty would be R20m – R3.5m x 20% = R3.3m.

 

Your estate would also be liable for executors' remuneration of 3.5% plus VAT of the value of the estate – R700,000 plus VAT.

 

If a company or trust owns your primary residence, any growth in the property's value will have no impact on your estate. It will also be protected from attack by your personal creditors.

 

If you own your primary residence your executor may have to sell it to generate enough cash to pay the Estate Duty.

 

If a company or trust owns the property, it does not form part of your estate if you are declared insolvent.

 

Buying property in a company makes sense if a trust owns the shares in the company.