June 2024 | General Interest, Litigation
“These technological developments would have seemed far-fetched and science fiction a brief few years ago.” (Extract from judgment below)
It’s an important question – the invalidity of an affidavit could sink even the strongest case, so it’s vital to get this right. Of course, it’s always tempting to cut corners where you can on the commissioning side, and perhaps you urgently need to sign an affidavit but are far from a commissioner of oaths or perhaps for some reason you just can’t visit a commissioner physically.
That of course became a commonplace scenario during the Covid-19 restrictions on personal contact and the pandemic accelerated the need for our laws to evolve in step with all the new “science fiction made real” technologies enabling meetings to be held virtually, documents to be signed electronically, and secure online handling and storage of information generally.
Whilst legislation and our courts have made important strides in this regard, some areas of uncertainty remain. One of them is the question of whether or not affidavits can be commissioned remotely.
The problem – what does “in the presence of” mean?
For an affidavit to be valid, the relevant Regulations require that it be signed “in the presence of” a commissioner of oaths. And as much as we might think that we are for all practical purposes “in the presence of” everyone else in a virtual meeting or family chat session, it’s not clear yet to what extent virtual presence will be considered sufficient compliance with the Regulations.
Let’s look at three recent High Court decisions with differing outcomes –
- Case 1: An affidavit validly commissioned by Zoom from Italy:
A commissioner of oaths in South Africa commissioned affidavits in a Zoom video call with deponents in Italy. The Court allowed the affidavits to stand, agreeing with previous judicial comments that “…Courts must adapt to the requirements of the modernities within which we operate and upon which we adjudicate…” and concluding that there had been “substantial compliance” with the requirements of the Regulations. However, the Court also cautioned against the idea that courts can “willy nilly accept non-compliance with acts and regulations.”
- Case 2: An application for a general declaration refused:
A global publishing company asked the High Court for an order declaring that “in the presence of” is to be broadly interpreted to include the administration of an oath or affirmation “by means of live electronic communication, consisting of simultaneous audio and visual components”. The Court dismissed the application, distinguishing this case from the one above and commenting that, although the argument that “the object of the Act and the Regulations can be achieved by virtual means is tempting”, it could not ignore “the clear meaning of the words in the Regulations” and “It is not for a Court to impose its view of what would be sensible or businesslike where the wording of the document is clear”.
- Case 3: Courts have a discretion only if normal commissioning is impossible:
A bank’s property valuation affidavits had been signed electronically in the absence of the commissioner of oaths. The Court agreed that a court has a discretion to accept such affidavits “if it finds that that there has been substantial compliance with the regulations” – but only where physical commissioning is not possible. Thus, in a previous matter, a court had exercised its discretion to allow an affidavit’s remote commissioning as a result of “the impossibility of the oath being administered normally because of the Covid restrictions against personal contact”. That, said the Court, “does not mean that a party may deliberately set out to achieve substantial compliance with such regulation rather than comply with its requirements.” In other words, you can’t elect to commission remotely just because it suits you. The valuator’s affidavits were rejected.
Err on the side of caution
There are some important grey areas there, and clearly remote commissioning will not be allowed as a matter of course. You’ll have to justify it.
So, regardless of how inconvenient it may be, unless and until new legislation (or perhaps a definitive ruling from the Supreme Court of Appeal) brings the Regulation’s wording up to speed with technology, the only way to be sure that a court will accept your affidavit as valid is to err on the side of caution and visit a commissioner of oaths physically whenever possible.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
March 2024 | Court, Litigation
“The first thing we do is, let’s kill all the lawyers.” (Shakespeare)
Shakespeare must have had an unhappy experience or two with the lawyers of his time to have one of his characters utter that threat, but the reality is that every aspect of our lives is touched at one time or another by the law and the only way to navigate legal waters confidently and safely is with professional guidance.
While many people may feel intimidated by the legal system, seeking legal advice can help to avoid costly mistakes and to ensure that your rights are protected. Here’s a brief guide on when and why you should seek legal help.
When should you seek legal help?
The short answer of course is “any time you are faced with a significant legal issue”, but let’s list some of the more common and important scenarios in which specific legal advice and assistance sometimes seems overkill, but is actually a no-brainer –
- Buying or selling a property: The process of buying or selling a house involves several legal requirements, from contracts and the transfer process to the financial preparations. Asking us for legal advice before you sign anything can help to ensure that the transaction is legally binding and protects your interests.
- Starting a business: Setting up a business requires a good understanding of all the legal aspects. We can advise on the best legal structure for your business, help draft contracts and agreements, and ensure that your business complies with all relevant laws.
- Drafting a will: A valid will is an absolutely vital document to ensure that your loved ones are properly provided for when you die. We will help you draft a will that clearly expresses your wishes and protects the interests of your beneficiaries.
- Getting married: Choosing the correct “marital regime” before you marry is essential and we will help you to make the best choice and to structure the right ANC (ante-nuptial contract) to protect you both.
- Getting divorced: The long-term personal and financial ramifications of divorcing make legal assistance indispensable. The earlier you approach us for advice and help, the more effectively we can help you navigate this unhappy process with as little delay and dispute as possible.
- Employer/employee contracts and disputes: Our employment and labour laws are complex and the consequences of getting them wrong can be extremely serious. There is no substitute for upfront and specific legal advice on structuring employment contracts and handling disputes as they arise.
- Dealing with disputes: Whether it’s a dispute with an employer, an employee, a neighbor, a customer, or indeed anyone else, seeking legal advice can help you resolve the issue and protect your rights. We can help you understand your rights, stay on the right side of the law, negotiate a settlement, seek arbitration, or if need be, represent you in court.
- Any brush with our criminal laws: Being accused of a crime can happen to anyone at any time. Perhaps you are arrested after failing a breathalyser test or threatened with a statutory offence relating to your tax affairs. Perhaps it is something even more serious or perhaps it seems inconsequential, but don’t take any chances here – ask us for help immediately or you could end up with a criminal record and serous penalties.
What about small claims, minor disputes, and the like?
You probably won’t need to incur the costs of formal legal advice and help when smaller and less important disputes and issues arise, but it’s always wisest to check with us first. Something seemingly minor could risk serious consequences down the line if not properly handled, and we’ll tell you whether or not that is the case.
Beware false economy
Legal assistance can be costly but beware the temptation to penny-pinch. Our law reports are full of cases where, for want of a little upfront and specific legal advice, litigants end up fighting – and often losing – long, bitter, and costly cases through court after court.
“A stitch in time saves nine” goes the old adage – wise advice indeed, and well worth heeding.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
July 2023 | Delict and Civil Claims, Litigation
“He that filches from me my good name robs me of that which not enriches him and makes me poor indeed.” (Shakespeare)
As our lives move increasingly online, more and more of us will be subjected to the distress and damage of online attacks. Whether they are aimed at hurting us personally or at harming our businesses, they can take a substantial toll both materially and psychologically.
What can you do if you (or your business) falls victim? The good news is that in appropriate cases our courts will come to your rescue robustly and with speed, as evidenced by a recent High Court decision.
Your legal protections
Before we discuss the facts and outcome of that case, let’s make a general note that as a victim of any defamation you have a choice of legal weapons available to you. A claim for damages can be highly effective but it is, as the Court here put it, a backward-looking remedy essentially suitable for redressing past defamation.
Where on the other hand you are being subjected to, or fear being subjected to, ongoing defamatory attacks, ask your lawyer about applying urgently for an interdict. As in the case we discuss below, it can provide powerful, quick and effective protection.
You could also try laying a criminal charge of crimen injuria (criminal impairment of another’s dignity) but perhaps don’t hold your breath on that one.
A property developer’s reputation vindicated, and an extortion attempt punished
- A company undertaking a large property development employed a roofing contractor which, after a fall out, started publishing defamatory statements about the developer on a local WhatsApp group and Facebook.
- Amongst other things the posts accused the developer of acting unlawfully for financial gain, creating a potentially life-threatening situation, dishonesty, not carrying out necessary remedial actions, defrauding the Municipality, exploiting elderly clients, selling uninspected and potentially dangerous homes, not following proper safety standards – the list goes on.
- The Court found no truth at all in any of these allegations and rejected for lack of proof the roofing contractor’s defence of “truth and the public benefit”.
- Particularly damningly perhaps, it held that the contractor had tried to extort payment of its outstanding invoices in return for its silence.
- The Court accordingly interdicted the contractor from continuing with the defamatory posts (online or otherwise), directed it to publish a copy of the court order on the online channels in question, and ordered it to pay legal costs on the punitive attorney and client scale.
The end result, which is a vindication of the developer’s position and an expensive lesson in the law for the roofing contractor, will give much heart to other victims of this sort of harassment.
Bottom line for victims – don’t take social media defamation lying down!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
March 2023 | Litigation
“Agreements not to litigate are not necessarily unreasonable.” (Extract from judgment below)
An “Agreement Not to Sue” undertakes that one party won’t take legal action against another. In other words, it’s a way of ensuring that disputes don’t end up in court. You might come across this type of agreement in many different situations, such as in a business setting, a family dispute, a neighbour dispute, or even between friends.
In particular, any compromise agreement settling a dispute is very likely to contain such a clause. Incidentally, if you see mention of a “pactum de non petendo anticipando” that’s just Latin for the same thing.
The benefits
The benefits of an agreement not to sue are that it can save you time, money, and stress. Going to court can be a long and complicated process, and an agreement not to sue means that you can avoid that. It can also allow you to come to a solution that is mutually agreeable, rather than having a court make a decision for you.
The downsides and risks
However, there are also downsides and risks to consider.
You may think that you can never lose a constitutionally guaranteed right such as that which gives us all right of access to the law, and indeed our courts will approach any “agreement not to sue” with a great deal of caution. But, as a recent SCA (Supreme Court of Appeal) decision has made crystal clear, such agreements may well be held valid and enforceable in an appropriate case. In that event, you have no legal recourse if the other party doesn’t follow through on their end of the agreement.
A R1,225 billion claim sunk by a “limited and reasonable” clause
- A complicated series of contracts went wrong, and one of the parties sued a bank for R1,225 billion.
- The bank relied on a “agreement not to sue” clause in the applicable contract, and the High Court agreed, ordering the claimants to withdraw their action. The SCA confirmed that order on appeal, and in doing so highlighted some of the important considerations a court will consider in such a case –
- An agreement not to sue “is an agreement like any other …It is a contract that gives rise to rights and correlative duties. The nature of the right in question varies from case to case and is dependent on the text and the facts.”
- It can be for a limited time or “operate in perpetuity”.
- “Courts should use the power to invalidate a contract or not to enforce it sparingly and only in the clearest of cases … balanced against the backdrop of our constitutional rights and values.”
- The claimants were fully informed of their rights and had consented to the clause freely and voluntarily. Their agreement not to sue was not a waiver of their constitutional rights, just an agreement not to enforce them.
- The clause was not against public policy – the claimants had been legally represented (they spent over R16 million on legal advice), they were all experienced businesspeople capable of evaluating the merits, risks and suitability of the clause, and there was no indication of unequal bargaining power between the parties. Perhaps most importantly, the Court found that the agreement “went no further than was necessary to prevent very specific litigation. As such it is a limited and reasonable restriction on the appellants’ ability to litigate.” (Emphasis supplied).
The bottom line
An agreement not to sue is a serious document with both benefits and risks. If you’re asked to sign one, take the time to carefully consider all the pros and cons and remember that it’s always a good idea to ask a professional to help you understand the terms of the agreement and ensure that your rights are protected.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
January 2023 | Litigation, Property
“The approval of building plans is not a mere formality in town planning and compliance with building standards promote public safety … The courts should not permit landowners to erect illegal structures on their land and then present the authorities with a fait accompli created by their illegal actions” (Extracts from judgment below)
What do you do if your neighbour starts building next door without municipal plans? A recent High Court decision confirms your right to apply for demolition.
The pensioner who built an apartment block illegally
- A property owner decided to build a multi-story block of eight apartments on his land. According to media reports he is a pensioner who spent his R900,000 pension payout on the project and planned to live off the resultant rentals of some R40,000 p.m.
- The building, which he had told his neighbours was just going to be a garden cottage, was illegal on four counts –
- No building plans were approved by the local Council,
- The structure encroached on building line restrictions imposed in the Town Planning Scheme,
- The structure did not comply with the zoning of the property,
- A restrictive condition in the title deed was contravened in that the title deed permitted only one dwelling on the property and the owner was erecting a second.
- The owner failed to comply with two “stop building” orders from the Council. Then he undertook to cease the works but instead accelerated them.
- Two of his neighbours urgently applied to the High Court to interdict further building, and the Court ordered the owner to demolish the building.
- The owner appealed this order to a “full bench” of the High Court asking for the demolition order to be postponed whilst his application to the Council for rezoning and removal of the restrictive conditions was finalised.
- Although the Council had approved the rezoning of the property it had specifically noted that it did not condone the partly constructed building, which was illegal because no building plans had been approved and the building encroached on the building lines.
- The neighbours, held the Court, had standing to apply for a demolition order, in that although their land had not been encroached upon, their rights had.
- In deciding to exercise its discretion in favour of demolition, the Court noted that the neighbours had taken steps to protect their rights immediately it became apparent that the owner was not constructing a garden cottage but an apartment block. They reported the illegal structure to the Council, and it weighed heavily with the Court that the owner carried on building even when he knew it was an illegal structure.
- The owner must demolish the building.
Bottom line – if your neighbour starts building illegally, take immediate action!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
January 2023 | Litigation
“In my view, given the difficulties of a sheriff or his deputy accessing a security complex in the absence of the occupant for the purposes of service in terms of rule 4, service of process by way of it being handed to the security guard at the complex, a responsible employee older than 16 years, is valid and effective service on the debtor.” (Extract from judgment below)
Moving house (or office) will mean a busy time and a long “to do” list.
Here’s an action item to add to the “Priority” section of your list: Give notice, in the required format, to everyone you have contracted with. Otherwise you could well, like the debtor in this case, wake up one morning to find your bank account frozen. Or the Sheriff of the High Court knocking on your door with a Warrant of Execution against your property.
Why is your “domicilium citandi et executandi” so important?
A “domicilium citandi et executandi” (“domicilium” for short), is a bit of Latin wording you will see in many agreements, and in simple terms it’s the address you nominate in a contract where legal notices may be sent to and legal process (such as a summons) served on you.
As we shall see below, it’s vital to take it seriously, both when you initially choose an address in the contract, and if/when you later move.
Debtor’s bank account frozen after summons served on a complex security guard
- An occupant in a security complex with “many” residents bought a motor vehicle on instalment sale agreement, specifying his residential address as his domicilium.
- Eventually after he surrendered the motor vehicle it was sold on auction and he was notified to pay the balance of R108k plus interest.
- When he moved to another security complex, he phoned the creditor to advise his new address. Critically however, he didn’t follow that up with a formal advice of change of domicilum in the required format.
- When the creditor issued Summons, the Sheriff tried first to serve it at the new address but failed when that complex’s security guard said the debtor was not yet living in the unit, although his possessions were there.
- The Sheriff then served the Summons at the old address (the debtor’s chosen domicilium), by handing it to the complex’s security guard.
- Unsurprisingly there was no notice of intention to defend from the debtor, whereupon the creditor took a default judgment and attached and froze the debtor’s bank account (leaving him, so he said, unable to pay his covid-related hospital and medical expenses).
- The debtor asked the High Court to set aside (“rescind”) the judgment, arguing amongst other things that the summons hadn’t been properly served on him.
Why the debtor lost
- As the Court put it: “Service on an address chosen by a debtor as the domicilium citandi et executandi constitutes good service even if the debtor is known not to be residing at the domicilium address, is overseas or has abandoned the premises.” In other words the summons is considered properly served whether you are still at the address or not.
- “The manner of service at a domicilium address, however, must be effective. It must be such that the process served at the domicilium citandi et executandi would, in the ordinary course, come to the attention of and be received by the intended recipient.”One way of meeting that requirement is to serve the process on a “responsible employee” – and, held the Court, security complexes not being easy to access in the absence of an occupant, it made no difference that the security guard in question worked not for the debtor but for the complex.
- The obligation is on a debtor changing address “to update or amend the debtor’s chosen domicilium address with the credit provider.” You have only yourself to blame for the consequences if you forget to do that.
- Critically, you must advise a change of domicilium in whatever manner the contract requires (usually in writing at the very least). Make sure you specify it is your domicilium address that you are changing – “A change in residential address does not serve to change a domicilium address.”
- And don’t think that your obligation to notify a change of address falls away once the contract is terminated. On the contrary, “the domicilium address survives cancellation of the agreement.”
End result – the judgment stands and the debtor must cough up.
Keep proof!
First prize of course is to avoid any disputes with the other party in the first place, but bad things happen to even the most careful of us so make sure that you aren’t left blissfully unaware of any notices or summonses that are issued against you at the wrong address. And if you do find yourself applying for a default judgment to be set aside, make sure you have kept proof that you notified the other party of your change of domicilium in the specified format.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
