A power of attorney (POA) is a legal document whereby a person, the principal, grants legal authority to another person, the agent, to make decisions and take actions on his or her behalf.

Who can grant a Power of Attorney?

Persons who can appreciate the nature and consequences of entering into legally binding agreements can grant a power of attorney. This excludes children and mentally impaired persons, who lack the requisite contractual capacity to grant a POA. The POA is not a contract between the principal and the agent, but an authority granted by the principal to allow the agent to enter into contracts with third parties on the principal’s behalf, thereby creating a binding contract between the principal and the third party. The agent is normally not a party to the contract entered into.

In South African law the POA becomes invalid when the principal loses his or her mental capacity to perform legal actions. A validly granted POA becomes invalid when the principal becomes mentally impaired and the agent cannot legally continue to act on behalf of the principal.

The latter scenario most frequently arises when an elderly person who has granted, legal authority to an agent by means of a POA, becomes mentally disabled. The agent, often a close relative, cannot legally continue to act on behalf of the principal. Continuing to act under these circumstances is unlawful and is also fraudulent if the agent is aware that the POA is no longer valid. In these circumstances other options should be considered to manage the principal’s affairs, such as the appointment of a curator or administrator for the mentally impaired person.

Who is liable?

When the principal authorises the agent to perform legal actions on his or her behalf, the principal legally accepts towards third parties (like banks and similar institutions) to be bound by the acts of the agent. Agents who act on the authority of a POA do not incur personal liability, because the agent acts on behalf of the principal. However, if the agent goes beyond the scope of the POA, for instance, by entering into a non-authorised contract, and misrepresents the scope of his or her authority to the third party, the agent may incur personal liability towards the third party.

How is a Power of Attorney granted?

The POA must be in writing and signed by the principal. Both persons must have contractual capacity. The POA must clearly describe and identify the principal, the agent, and the extent of the powers granted to the agent.

It is advisable to consult a professional to ensure compliance with specific legal requirements for certain types of POA, for example in the case of contracts involving property or international transactions.

Types of Power of Attorney

There are broadly two kinds of POA’s: general and special. The general POA allows the agent to perform a wide variety of legal acts and financial activities on behalf of the principal. The special POA limits the agent’s power to specific activities, such as entering into a specific contract or registering a mortgage.

Termination of the Power of Attorney

A POA terminates on death, mental incapacity and insolvency of the principal. In the case of a special POA, the POA lapses once the authorised legal action has been completed.

Conclusions

The POA conveniently enables the principal to manage his or her legal affairs by appointing an agent to perform specific legal actions. For example, if frailty prevents an elderly person with full mental capacity to manage his or her affairs, the POA is a useful and practical solution.

It is advisable to consult a legal professional when considering to grant a POA, to ensure that the POA is fit-for-purpose and valid for the transaction(s) envisaged.

For the duration of the NSOD, at all the alert levels declared from time to time, the Regulations have prohibited the execution of eviction orders, unless a court is of the opinion that it is not just or equitable to suspend or stay the eviction order until after the lapse or termination of the NSOD (or in the initial alert levels, until the lapse of a particular alert level).

Under the Regulations the courts must have regard, in addition to any other relevant consideration, to:

1. 1. the need, in the public interest for all persons to have access to a place of residence and basic services to protect their health and the health of others and to avoid unnecessary movement and gathering with other persons;
   2. any restrictions on movement or other relevant restrictions in place at the relevant time in terms of these Regulations;
   3. the impact of the disaster on the parties;
   4. the prejudice to any party of a delay in executing the order and whether such prejudice outweighs the prejudice of the persons who will be subject to the order;
   5. whether any affected person has been prejudiced in their ability to access legal services as a result of the disaster;
   6. whether affected persons will have immediate access to an alternative place of residence and basic services;
   7. whether adequate measures are in place to protect the health of any person in the process of a relocation;
   8. whether any occupier is causing harm to others or there is a threat to life; and

whether the party applying for such an order has taken reasonable steps in good faith, to make alternative arrangements with all affected persons, including but not limited to payment arrangements that would preclude the need for any relocation during the national state of disaster.

These Regulations apply not only to property owners who obtain eviction orders during the NSOD, but also to those who had obtained eviction orders before the NSOD came into effect, with execution dates falling within the NSOD.

In both these instances the effect of the stay of execution has been that owners have been deprived of property rights for an indeterminate period of time, as long as the NSOD persists.

The case histories of two of our clients faced with this unfortunate scenario are as follows.

Client X obtained an eviction order in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) during the early stages of the NSOD, and the Court ordered a stay of the execution of the eviction order until after the lapse or termination of the NSOD.

Client Y obtained an eviction order in terms of the Extension of Security of Tenure Act, Act. 62 of 1997 (“ESTA”) before the NSOD (which order was confirmed on review by the Land Claims Court), but the date of execution of the eviction order fell within the NSOD.

In both cases we successfully brought applications for the execution of the eviction orders to go ahead during the NSOD, arguing that it would not be just and equitable to suspend or stay the execution of the eviction orders until after the lapse or termination of the NSOD. In both cases the arguments were based on the particular set of facts; and two recent judgments of the Western Cape High Court could be relied on:

• Shevel v Alson Development Sea Point (Pty) Ltd and another [2021] JOL 49448 (WCC) (“Shevel”); and
• Nelson and Another v Samuels and Others (2350/2020) [2021] ZAWCHC 58 (29 March 2021 (“Nelson”).

In these judgments the Court took into account that when the limitation on evictions was first introduced (with an initial NSOD alert level 5) the movement of persons outside of their places of residence was severely restricted. It was then more difficult for persons to go out and seek alternative accommodation, and well-nigh impossible to move one’s belongings. In the Shevel and Nelson judgments the Court noted that the country had moved away from those initial restrictions, allowing house-hunting and moving house in practically the same way as before the initial declaration of the NSOD. The Court in Shevel and Nelson found that on the particular set of facts of each of these cases it would not be just and equitable to suspend the execution of the eviction orders until after the lapse or termination of the NSOD.

Should you have any questions regarding evictions under the national state of disaster or the application to execute upon an eviction order during the national state of disaster, please contact us at 021 808 5600.

In this case the Supreme Court of Appeal (“the Court”), found Mr van Meyeren (the owner, referred to as “Appellant”) to be liable to Mr Cloete (the injured person, referred to as “Respondent”), for damage caused by and arising from a dog attack.

The facts.

The Respondent, an itinerant gardener and refuse collector, was walking to a grocery store when he was attacked in a public street by three dogs, without any warning or any apparent reason. He sustained serious injuries which resulted in the amputation of his left arm. The dogs were owned by the Appellant, and they gained access to the street by way of an open gate on the Appellant’s premises.

Neither the Appellant, nor his family, were present on the premises at the time the attack occurred. The Appellant argued that an unknown intruder might have attempted to gain access to the premises by breaking the two padlocks of a locked gate, which left the gate open or in such a state that the dogs could break it open.

The claim.

The Respondent instituted a claim under the actio de pauperie to recover damages from the Appellant. The actio de pauperie is an action deriving from Roman law, based on the principle that the owner of a domesticated animal that attacks a person who was lawfully at the place where the attack occurred, and who neither provoked the attack nor by negligence contributed to the attack or injury, is liable to compensate the injured person for the damage suffered. The actio de pauperie is therefore an action based on strict liability of the owner of the animal. The claimant is not required to prove that the owner was at fault (negligent).

The legal principles.

The legal question was whether the owner could rely on the negligence of a third party who was not in control of the animal at the time the attack occurred (the intruder in this case), as a defence against liability under the actio de pauperie.

The Court compared South African law to English common law, where the so-called “scienter” (knowledge) test is applied, so that the owner of an animal is liable only if aware of the animal’s tendency to cause harm. The result is sometimes referred to as the “one free bite” rule. The Court held that this rule is not applicable in South Africa. The Court referred to the well-known judgment of Kotzé JA in the case of O’Callaghan NO v Chaplin 1927 AD 310:

“It is satisfactory to find that the actio de pauperie still forms part of our law… I think the conclusion is a sound one and just, for if a man chooses to keep an animal, and injury or damage is caused by it to an innocent person, he must make adequate compensation. The owner of the animal and not the person injured must bear the loss.”

The Court noted that an element of anthropomorphism is sometimes apparent in the application of the actio de pauperie. This means that the self-constraints generally required of human beings are also applied to animals, so that an owner of an animal is held liable only if an element of “fault” can be attributable to the animal.  The Court confirmed that the test to be applied to the behaviour of the animal is that of comparing the general nature of domesticated animals to the behaviour of the animal that caused the harm. If the behaviour is contrary to the nature of domesticated animals (contra naturam sui generis), the element of “fault” is present. Therefore, if the animal acted as a result of being provoked, frightened, or in pain, the behaviour was not contra naturam sui generis and liability is not imposed on the owner.

The other defences that can be raised by an owner to avoid liability under the actio de pauperie, as accepted in the case of O’Callaghan NO v Chaplin, are the following:

• The injured party did not have a legal right to be on the premises where the attack occurred. Unlawful presence of the injured person provides a defence for the owner. A person has a legal right to be on premises, for example, if there was permission or an invitation to be there.
• Where the animal was restrained and the injured party ventured within reach, such an action by the injured party would also provide a defence. However, if the attack occurred in a public place, the owner will still be held liable.
• The Court further referred to the case of Lever v Purdy 1993 (3) SA 17 (A), where it was decided that the owner can raise as a defence that a third party was in charge or control of the animal at the time of the attack, and that the third party negligently failed to prevent the animal from causing harm.

In the present case the Appellant argued that defence (c) should be extended by developing the common law to exempt the owner from liability where the harm would not have occurred but for the negligent conduct of a third party, irrespective of whether the third party had custody or control of the animal. The Appellant further argued that he took appropriate steps to ensure that the dogs could not escape from the premises, and that he should therefore not be held liable. The Appellant also argued that, given the high levels of crime in South Africa, people are entitled to protect their persons and homes against criminals.

The Court did not agree, and decided as follows:

“Deterrence or restraint of an intruder is one thing. Killing or seriously injuring them is another. Only in extreme circumstances is it permissible to shoot and kill an intruder in self-defence. Why then should it be permissible to keep a dog that, irrespective of the level of threat, may kill or maim them?”

The Court found that, because the dogs attacked an innocent passer-by on a public street, and not on the Appellant’s premises, the Appellant’s argument that the dogs were kept for protection was irrelevant and invalid.

The Court further found it to be contrary the interests of justice to develop the common law and extend the defences to the actio de pauperie to include negligence of a third party who was not in control of the animal at the time an attack occurred. The Court held that a person who decides to own an animal for companionship or protection also agrees to the obligations and responsibilities of the ownership. A domesticated animal can cause harm to people and property, and when such harm is caused to an innocent injured party, the interests of justice require that the owner of the animal should be held liable.

The Court further held that an extrinsic cause such as leaving a gate open and allowing animals to escape from the owner’s property is also irrelevant to the behaviour of those animals once they have escaped. Should there have been an intruder, responsibility did not pass from the Appellant to the intruder in respect of the dogs. The Appellant continued to be the person who carried the responsibility, as owner of the dogs. The Court went on to say:

“Mr van Meyeren does not dispute that the requirements of pauperien liability were satisfied. He sought to escape liability on the basis that what occurred here was not his fault. But absence of fault has never been a basis for avoiding pauperien liability. It proceeds on the basis of strict liability arising from ownership of the animal that caused harm. Absence of fault is a ground for resisting Aquilian liability, not a claim under actio. ”The appeal of the owner, Van Meyeren, was therefore dismissed with costs.

The Rental Housing Act 50 of 1999 (“RHA”) regulates all residential lease agreements and provides for provincial regulations regarding unfair practices. Section 15(1)(f) of the RHA states the following:

“The MEC may, after consultation with the relevant standing or portfolio committee of the Provincial Legislature responsible for housing matters in the province, by notice in the Gazette, make regulations relating to – . . .(f) unfair practices, which amongst other things may relate to– . . .”

Under section 1 of the RHA an “unfair practice” means:

“a practice prescribed as a practice unreasonably prejudicing the rights or interests of a tenant or a landlord”.

It is within the framework of these provincial regulations that penalty clauses are dealt with – the RHA itself does not deal with penalty clauses.  However, not all provinces have passed such regulations and in the absence of national regulations the enforceability of penalty clauses may be open to question and will depend on the geographical location of the rental property.

For example, the Western Cape Unfair Practice Regulations P.N 22/2002 (“WC Regulations”) do not prohibit penalties for late rental payments in agreements dealing with rental property situated in the Western Cape.  It appears therefore that penalty clauses are enforceable within the Western Cape.  For a rental property situated in Gauteng, on the other hand, the Gauteng Unfair Practice Regulations 2001 (“Gauteng Regulations”) expressly prohibit a landlord to charge a penalty for late rental payments.

Section 3(3)(a) of the Gauteng Unfair Practice Regulations states:

“A lease agreement must exclude any provision which –

• imposes a penalty for late payment of rent whether or not the penalty takes the form of administrative charge or any other form other than interest. . .”

Therefore, under the Gauteng Unfair Practice Regulations a residential lease agreement may not contain any provision imposing a penalty for late rental payment.  This includes instances where the penalty takes the form of an administrative charge or any other form, except interest, which may be charged on the late payment.  A penalty clause in a residential lease agreement in Gauteng will not only be unenforceable, but its inclusion would also be in contravention of the Gauteng Regulations.

Section 14(5) of the Gauteng Regulations states:

“Any person who commits and unfair practice is guilty of an offence and liable on conviction to a fine or imprisonment not exceeding two years or to both such fine and such imprisonment”.

Any landlord within Gauteng who contravenes section 3(3)(a) of the Gauteng Regulations would open themselves up to liability for a fine, imprisonment, or both.

In provinces where there are no regulations on penalty clauses, the penalty provision would still be subject to the Conventional Penalties Act 15 of 1962, which allows a contractual penalty to be enforced in any competent court, but also provides for reduction of the penalty to the extent that the court considers equitable in the circumstances, if the penalty is out of proportion to the prejudice suffered as a result of the act or omission for which the penalty was stipulated.  The application of the Conventional Penalties Act therefore requires court intervention, which will be an expensive remedy for the tenant subject to the penalty.

Rental Housing Amendment Act

The Rental Housing Amendment Act 35 of 2014 (“RHAA”), which is not yet in force, is likely to result in a national prohibition of penalty clauses for late rental payments.  The responsible minister is obliged, under section 15(1)(f) of the RHAA, to make national unfair practice regulations, which are likely to be similar to the Gauteng Regulations.  Section 3(c)(ii) of the Draft Procedural and Unfair Practice Regulations, 2008, published for public comment (“Draft Regulations”), include the following clause:

 “A lease agreement must not include any provision which –

Imposes a penalty for late payment of rent whether or not the penalty takes the form of administrative charge or any other form other than interest; . . .”

Section 14 of the Draft Regulations also provides for a fine or imprisonment in the event that the landlord contravenes section 3(c)(ii) of the Draft Regulations:

“Should the landlord or tenant fail to comply with any provision of the Act or the Regulation or a ruling of the Tribunal, and found guilty, a fine may be imposed or imprisonment not exceeding two years or to both such fine and such imprisonment”

Once the RHAA comes into force, the position is likely to be that penalties for late rental payments will be prohibited nationally.

Rental agreements for residential property should therefore be scrutinised carefully by landlords and tenants alike.

Offences and penalties

The Act creates offences and imposes penalties for the following:

• unlawful and intentional access to computer systems (hacking);
• unlawful interception of data – any unlawful and intentional acquisition, viewing, capturing, or copying of data of a non-public nature using a hardware or software tool;
• unlawful and intentional interference with data and data storage mediums or computer systems, by deleting or altering data or a computer program;
• unlawful and intentional acquisition, possession, provision, receipt or use of a password, access code or similar data or device;
• cyber fraud – any person who unlawfully and with the intention to defraud makes a misrepresentation by means of data or computer program, which causes actual or potential prejudice to another person;
• cyber forgery and uttering – any person who unlawfully and with the intention to defraud makes false data or false computer program, which causes actual or potential prejudice to another person.

Malicious and harmful communication is criminalised:

• In terms of section 14 of the Act, any electronic communication or a data message which is sent to a person, a group of persons, or the general public with the intention to incite damage to property belonging to or violence against a person or a group of persons.
• In terms of section 15 of the Act, data message which threatens persons or a group of persons with damage to property belonging to or violence against a person or a group of persons.
• In terms of section 16 of the Act, any person(“A”) who unlawfully and intentionally discloses, by means of an electronic communication services, a data message of an intimate image of a person(“B”), without the consent of person (“B”), is guilty of an offence.

The criminalisation of malicious communication will have a significant impact on individual computer users. Using email, WhatsApp or on any social media platform to send a text message that is inciteful, harmful, threatening or which discloses intimate images of a person without their consent can now result in a fine or imprisonment or both.

A person harmed (the complainant) can lay a charge with the South African Police Services that an offence in terms of the Act has been committed against them. The complainant may also apply to the Magistrates’ Court for a protection order, to prohibit any person to disclose the data message which relates to the charge, pending the finalisation of the criminal proceedings in the prescribed form and manner.

Obligation on electronic service provider and financial institution to report cybercrimes

The Act imposes obligations on electronic service providers and financial institutions who are aware or become aware that its electronic communications service or electronic communication network is involved in the commission of any cybercrime or malicious communication must, not later than 72 hours after becoming aware of the suspected offence, report the offence in the prescribed form and manner to the South African Police Service.  Electronic communications services providers or financial institutions who fail to report any cybercrime or malicious communication will be guilty of an offence and liable on conviction for a fine of up to R 50 000.00.

Electronic service providers and financial institutions will have to preserve and provide any information which may be of assistance to the South African Police Service for investigating the office. Electronic service providers and financial institutions will have to acquaint themselves with the Act and create policies that comply with the Act.

The Act applies to both natural persons and juristic persons. Under section 19 of the Act any person who commits an offence under the Act or commits any of the abovementioned cybercrimes is liable on conviction for a fine or imprisonment for a period of up to 15 years or both.

Individual computer users and companies should acquaint themselves with the Act and be mindful and careful on how they deal with communication and data in business and everyday life.

1.1. Cluver Markotter Inc processes personal information and other confidential information of individuals and juristic persons to deliver legal services to our clients. The nature of the personal information which we process, depends on the legal service we render in each matter, as well as the legislative requirements to be adhered to by us.

1.2. We are obliged to process personal information in accordance with the provisions of the Protection of Personal Information Act, no. 4 of 2013 (‘the POPI Act’). This notice constitutes our policy statement to declare our firm’s commitment to comply with the POPI Act when processing personal information and special personal information, as defined in paragraphs 8.5 and 8.9 below.

1.3. This notice forms part of our agreement with you and is available on our website www.cluvermarkotter.law and, upon request, from our office.

2. PURPOSE OF PROCESSING PERSONAL INFORMATION

2.1. We process personal information primarily to deliver legal services to our clients. We also process personal information –

2.1.1. for personalised marketing purposes, if you are a client of our firm or if you elected to receive marketing material from us. Please note that you have a choice not to have their personal information used for marketing purposes.
2.1.2. to send newsletters to our clients and others who have elected to receive newsletters from us. Please note that clients have a choice not to receive newsletters from us.
2.1.3. to conduct client satisfaction research.
2.1.4. for audit and record keeping purposes.
2.1.5. to deal with requests and enquiries about personal information held by us and to update this information, when advised by you.
2.1.6. should you apply for employment at our firm, to process your application.
2.1.7. for the detection and prevention of fraud, crime, money laundering or other malpractices.
2.1.8. in connection with legal proceedings.
2.1.9. in connection with and to comply with legal and regulatory requirements (eg the requirements of the Financial Intelligence Centre Act no. 38 of 2001) or when it is otherwise required by law.

2.2. When you contact us by email, other means of electronic communication, telephone, post, or telefax, we collect, store, use and keep record of certain personal information that you disclose to us. This includes details such as your name, address, telefax number, mobile phone number and email communication data. By providing us with your personal information, you authorise us and associated entities or third parties (where applicable) to process such information as set out herein.

2.3. We do not intentionally collect or use personal information of children (persons under the age of 18 years), unless with express consent of a parent or guardian, or if the law otherwise allows or requires us to process such personal information.

2.4. We do not process special personal Information about you unless –

2.4.1. it is necessary to establish, exercise or defend a right or obligation in law (eg we have to process information relating to your health as part of our screening processes when you access our premises, in order to comply with Covid-19 regulations and protocols).
2.4.2. we have obtained your consent to do so (eg should you apply for employment at our firm, we require your permission to do a criminal record check to process information which relates to your criminal record, if any.

2.5. We are committed to process personal information and special personal information –

2.5.1. fairly and lawfully, for specific lawful purposes.
2.5.2. in accordance with any agreement we may have with you and in accordance with the legal standards applicable to such information or information categories.
2.5.3. which is accurate and kept up to date.
2.5.4. which is adequate, relevant and not excessive or misleading.

3. SHARING OR TRANSFER OF PERSONAL INFORMATION

3.1. We undertake to use your personal Information only for the purpose for which the information is essential and not to share or further process your personal information without your consent.

3.2. Please note that in certain circumstances,

3.2.1. we must share personal information with third parties as part of the legal services we render to our clients. Subject to paragraph 3.2.4 below, we must inform you when we do so and will share only what is needed for those purposes. We aim to have agreements in place with our service providers to ensure that the personal information that we remain responsible for, is safeguarded by our service providers. Anyone to whom we pass on your personal information, will be required by us to treat your information with the same level of protection as we are obliged to do.
3.2.2. we have to obtain personal information about clients and other persons or entities from third parties as part of the legal services which we render. We will inform you when we have to obtain personal information about you from a third party.
3.2.3. we release account and other personal information to third parties when we believe that such release is appropriate to comply with the law; to enforce our client agreements and other agreements; or to protect the rights, property or safety of our firm and our clients. We will inform you when we decide to do so and will share only what is needed for those purposes.
3.2.4. South African legislation allows for the disclosure of personal information to law enforcement or other agencies without your consent. In circumstances where we are required to disclose information because we are legally obliged to do so, we will first consider the legitimate interests of all concerned.

3.3. We may need to transfer your personal information to another country for processing or storage of data or when it is otherwise required by virtue of the nature of the legal services rendered to you. This will be done only in limited circumstances and in strict adherence of the requirements of the POPI Act and other relevant legislation.

4. RETENTION OF PERSONAL INFORMATION

4.1. We will retain your personal information for as long you permit us to do so and/or in accordance with the provisions of any applicable legislation.

4.2. Please note that we are obliged in law to retain documents containing personal information for at least seven years from the date of the last entry recorded in each particular book or other document of record or file.

5. SAFEGUARDING OF PERSONAL INFORMATION

5.1. We are required to take reasonable measures to adequately protect all the personal information we hold and to avoid unauthorized access and use of such personal information. To comply with this requirement, we maintain reasonable industry-standard physical, electronic and procedural safeguards in respect of the personal information we collect, store, disclose and destruct.

5.2. Our written communication with clients and third parties occurs mostly via the internet. For this reason, we have implemented general accepted and up-to-date electronic communication safety measures. However, the internet is not entirely secure and therefore we cannot unconditionally guarantee the security of any information you provide to us via email, social media, or other communication platforms. Should you be particularly concerned about the safety of specific personal information you intend to send to us, you should liaise with your contact person at the firm regarding the appropriate communication platform to be used.

5.3. In the unlikely event that an information security breach in respect of your personal information should occur, we will inform you thereof. We will also investigate the security breach and will take all reasonable measures to limit any possible damage which may arise from such breach.

6. ACCESS TO AND AMENDMENT OF PERSONAL INFORMATION HELD BY US

6.1. Our information officer is Mr. Anton Melck, the chairperson of our firm. Our deputy information officer is Mrs. Lorinda van Niekerk. Please phone Mrs. Van Niekerk on 021 808 5600, or write to her at info@cluvermarkotter.law.za if you:

6.1.1. have any queries about this notice.
6.1.2. need further information about our privacy practices.
6.1.3. wish to request a copy of the personal information we hold in respect of yourself and the purpose for holding it. We will take all reasonable steps to confirm your identity before providing details of your personal information to you. There may be a reasonable charge for providing any information so requested.
6.1.4. wish to amend, correct or destroy your personal information held by us. Please contact us to update your personal information whenever your details change.

6.2. If we do not respond to a request from yourself pertaining to your personal information to your satisfaction, you may lodge a complaint at the office of the Information Regulator at the following addresses:

6.2.1. Website: https://www.justice.gov.za/inforeg/index.html
6.2.2. Address: JD House, 27 Stiemens Street, Braamfontein, Johannesburg, 2001
6.2.3. Postal address: P.O Box 31533, Braamfontein, Johannesburg, 2017
6.2.4. Complaint email address: complaints.IR@justice.gov.za
6.2.5. General enquiry email address: inforeg@justice.gov.za.

7. CHANGES TO THIS NOTICE

7.1. We may amend our personal information practices and review this notice from time to time. Amendments will be communicated as necessary and will appear on our website.

8. DEFINITIONS OF TERMS USED IN THIS NOTICE

In this notice, the following terms and expressions, will have the meaning as assigned to them by the POPI Act:

8.1. Confidential information means any personal information, as defined in the POPI Act, and any other information or data of any nature, tangible or intangible, oral or in writing and in any format or medium, which by its nature or content is, or ought reasonably to be identifiable as confidential and/or is provided or disclosed in confidence to our firm.

8.2. Data subject is an individual or juristic person to whom personal information relates.

8.3. Electronic communication means any text, voice, sound or image message sent over an electronic communications network which is stored in the network or in the recipient’s terminal equipment until it is collected by the recipient.

8.4. Information security breach is any incident:

8.4.1. in which sensitive and/or protected and/or private and/or confidential information has been lost, disclosed, stolen, copied, transmitted, viewed, altered, destructed or otherwise used or processed in an unauthorised manner; or
8.4.2. that results in the unauthorized access of information, applications, services, networks and/or devices by bypassing our firm’s security mechanisms.

8.5. Personal information is Information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to –

8.5.1. information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
8.5.2. information relating to the education or the medical, financial, criminal or employment history of the person;
8.5.3. any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person;
8.5.4. the biometric information of the person;
8.5.5. the personal opinions, views or preferences of the person;
8.5.6. correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;
8.5.7. the views or opinions of another individual about the person; and
8.5.8. the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.

8.6. Processing means any operation or activity or any set of operations of the responsible party, whether or not by automatic means, concerning personal information, including —

8.6.1. the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use of personal information;
8.6.2. dissemination of personal information by means of transmission, distribution or making available in any other form; and
8.6.3. merging, linking, as well as restriction, degradation, erasure or destruction of personal information.

8.7. Record means any recorded information regardless of form or medium, including any of the following:

8.7.1. writing on any material;
8.7.2. information produced, recorded or stored by means of any tape-recorder, computer equipment, whether hardware or software or both, or other device, and any material subsequently derived from information so produced, recorded or stored;
8.7.3. label, marking or other writing that identifies or describes anything of which it forms part, or to which it is attached by any means;
8.7.4. book, map, plan, graph or drawing; and
8.7.5. photograph, film, negative, tape or other device in which one or more visual images are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced;

in the possession or under our firm’s control, whether or not it was created by us; and regardless of when it came into existence.

8.8. Responsible party means Cluver Markotter Inc.

8.9. Special personal information is information that relates to the religious or philosophical beliefs, race or ethnic origin, trade union membership, political persuasion, health or sex life or biometric information of a data subject. It also includes criminal behaviour relating to alleged commissions of offences or any proceeding dealing with alleged offences.

When does a claim for costs arising from an arbitration award become prescribed? This question involves a number of issues under the Prescription Act 68 of 1969 (Prescription Act).

In Brompton Body Corporate v Khumalo 2018 (3) SA 347 SA (SCA) (Brompton) it was held that an arbitration award does not create a new debt and that a new prescription period does not commence to run from the date of the award. The court held that it would make no sense for section 13(f) of the Prescription Act to delay the completion of prescription of the original underlying debt if the prescription period only began to run on publication of the award.  The entire purpose of section 13(f) of the Prescription Act is to enable the creditor to apply to make the arbitration award an order of the court in terms of section 31 of the Arbitration Act 42 of 1965 (Arbitration Act), in order to enforce the arbitration award, before the debt on which it is based becomes prescribed.

Section 13 (1) (f) of the Prescription Act provides that if a debt is the object of a dispute which is subject to arbitration proceedings then the period of prescription for that debt would be delayed for one year after the day that the arbitration proceedings have been concluded. In other words, if the three-year prescription period applicable to a debt expires during the time of the arbitration proceedings, the successful party will have an extra year after conclusion of the arbitration proceedings to make the arbitration award an order of court to enforce the arbitration award. Once the arbitration award has been made a court order, the successful party will have thirty years to enforce the debt.

It is clear that this is the legal position for a “debt” that existed prior to the commencement of arbitration proceedings. However, what is the situation with a costs award that only comes into existence on the date of the arbitration award? Does the successful party only have one year to enforce the costs award as envisaged in section 13(1)(f) of the Prescription Act or what prescription period applies to the enforcement of the costs award?

COSTS ANOMALY

The question whether costs awarded in arbitration proceedings are also subject to these principles had to be answered in Hugh Hutchings v Anna Catherina Hutchings (15633/2019) [2021] ZAWCHC 3 (18 January 2021) (Hutchings).

The arbitration award was given on 22 January 2014 and on 19 October 2019, five years after the arbitration award was published, the applicant (Hugh Hutchings) sought to make the arbitration award an order of court. The arbitration award ordered:

“b) the respondent to pay the applicant’s legal costs on party and party scale including costs of counsel

c) the respondent to pay the costs of the arbitration including the legal costs of the arbitrator.”

The respondent (Anna Hutchings) argued that a three-year prescription period applied to the arbitration award, that the costs award became prescribed three years after publication of the arbitration award and that Hugh Hutchings was not entitled to blow life into a corpse by making the prescribed costs award an order of court. Put differently, Hugh Hutchings had to apply to make the arbitration award an order of court before the debt upon which it is based became prescribed, as held in Brompton.  The court in Hutchings had to decide when the costs award becomes due under section 12(1) of the Prescription Act, which provides that prescription commences to run as soon as a debt is due.

 To determine when an arbitration costs award becomes due, the court turned to Santam v Ethwar 1992 (2) SA 244 (SCA) (Santam). In the Santam case the court had to determine whether a claim for costs in favor of the respondent (Ethwar), arising out of a settlement agreement, had become prescribed. The settlement agreement in respect of costs read as follows:

“Kindly take notice that the defendant (Santam) in this matter offers to settle the plaintiff’s (Ethwar’s) claim in the following manner … (c) by payment of the plaintiff’s costs to date hereof as taxed or agreed between the parties, such costs to include those qualifying expenses which the Taxing Master may allow and to include the reasonable costs incurred in considering this offer.”

The central issue in Santam was whether the claim for costs only became due upon taxation of the costs or upon agreement. Did the costs become due on the day that the settlement agreement came into existence? If so, the prescription period then begins to run. If the costs did not become due on the day that the settlement agreement came into existence, but only upon taxation or agreement, the prescription period does not begin to run on the date of the award, but on the date of taxation or agreement. The court held that the parties could not have intended that Ethwar could recover her costs without a prior agreement as to costs between the parties or taxation. The court also pointed out that a simple procedural step cannot delay the commencement of prescription.  However, agreement as to costs and taxation both require extraneous aid of third parties over whom Ethwar had no control. It follows that payment only became due once the parties agree on costs or taxation of the costs occurs.

The court in Hutchings applied the Santam reasoning and held that Anna Hutchings became liable for costs on publication of the arbitration award, but the costs only become due when agreed upon or once a bill of costs has been taxed.

CONCLUSION

The Hutchings judgment means that a costs award in arbitration proceedings can hang over the unsuccessful party’s head for an indefinite period (in this case for five years) without prescription ever running against the successful party.  Prescription will only start to run in respect of the costs award upon taxation or agreement on costs.

It should be noted, however, that the court in Santam interpreted a particular settlement agreement to determine when the costs became due and payable. The intention of the parties was therefore a central issue. In Hutchings, the intention of the parties was not relevant. The arbitration award made in January 2014 simply ordered the unsuccessful party to pay the costs and the costs award was not conditional upon taxation or agreement between the parties.

The prescription issue that arose in Hutchings cannot be regarded as settled. In future a court may come to a different conclusion and follow the decision in Botha and Others v Scholtz and Another (3424/2016) ZAFSHC 51 (9 March) 2017 (unreported judgment), where it was held that the purpose behind the Prescription Act is to protect a debtor from old claims against which the debtor cannot effectively defend himself and that a creditor ‘does not enjoy an unlimited right to enforce his claim for judgement costs insofar as he can only quantify his costs and present a bill for taxation as long as the judgment from which his right derives has not prescribed.’ (my underlining).

The decision in the Botha case accords with the principle that creditors should not be able to postpone the running of prescription by their own conduct, in this case by failing to have a bill of costs taxed. The Benson v Walters 1984 (1) SA 73 (A) (Benson) judgment supports the decision in the Botha case. In Benson it was held (although in the context of an attorney claiming fees) that prescription begins to run when the attorney is able to have the bill taxed as otherwise “it would mean that an attorney could sit back for say 20 years before having his bill taxed and that he would then be able to maintain that the debt had not become prescribed” – which is exactly what the Prescription Act aims to prevent.

The Constitution of the Republic of South Africa, 1996 (“Constitution”) protects the rights to freedom of expression and access to information. However, these rights may be limited under s 36 of the Constitution, if the limitation is reasonable and justifiable. The Constitutional right to freedom of expression may be limited to curtail the spreading of fake news.

Regulation 11(5)(c) to the Disaster Management Act 57 of 2002 criminalises the publishing of a statement through any medium – including, but not limited to, WhatsApp groups – if the statement was published with the intention to deceive the recipient(s) about Covid-19, or any person’s Covid-19 infection status or the state’s measures to manage the Covid-19 pandemic. Statements made with the intention to deceive are punishable by a fine or imprisonment of up to six months, or both.

The regulation specifically requires an intention to deceive. In other words, one cannot be held liable for negligently spreading fake news. Although liability requires intent, and not merely negligence, the distinction between the two forms of fault can be slight, because intention can also exist in the form of dolus eventualis, where the spreader of the news does not know for a fact it is fake news, but foresees the possibility of it being fake and accepts this and carries on to spread the news. The recipient(s) of the message do not actually have to be deceived; the intentional spreading of false information relating to Covid-19 by itself constitutes an offence.

The courts have accepted that a message or posting on the internet or social media constitutes a publication that can give rise to liability for defamation (Ketler Investments CC t/a Ketler Presentations v Internet Service Providers’ Association 2014 (2) SA 569 (GJ); RM v RB 2015 (1) SA 270 (KZP); Heroldt v Wills 2013 (2) SA 530 (GSJ)). Likewise, an electronic message or posting on Covid-19 related matters by a WhatsApp user can constitute an offence under Regulation 11(5)(c) to the Disaster Management Act 57 of 2002.

Furthermore, a person who creates the opportunity for or controls messages or postings on social media can be liable for defamation (Dutch Reformed Church Vergesig v Sooknunan 2012 (6) SA 201 (GSJ)). In Isparta v Richter 2013 6 SA 4529 (GP) the court held the person who posted a defamatory statement on Facebook liable; and also imposed liability on the second defendant – a person who was merely tagged in the defamatory statement. In paragraph 35 of the judgment the court said: “… the second defendant is not the author of the postings. However, he knew about them and allowed his name to be coupled with that of the first defendant. He is as liable as the first defendant.” On the same principle a person who creates the opportunity for or controls messages on social media could be held liable for the intentional spreading of false information relating to Covid-19, under Regulation 11(5)(c) to the Disaster Management Act 57 of 2002.

Will a WhatsApp group administrator be liable for fake news messages posted by other group members?

A WhatsApp group administrator has the power to add or remove other group participants as co-administrators of the group, to remove himself or herself as group administrator, and to add or remove any of the group members from the group. However, the group administrator does not have the power to delete or edit messages from other group members or to prevent that other members of the group forward group messages to users outside the group.

South African courts have not yet decided on liability of a WhatsApp group administrator for the content of messages posted by other group members. There is a risk of liability where a group administrator is aware that information relating to Covid-19 posted by another group member is or may be false, but takes no steps to have the post removed and to prevent further spreading of the false information.

To guard against potential liability for fake news posted by WhatsApp group members the group administrator should use whatever of the following control measures that will be appropriate:

• Post a warning message against fake news to all group members.
• Know the identities of group members and inform them when they become members of the group about the type of content that is permitted.
• Dissociate themselves from the unlawful content of a message once he/she becomes aware that it contains fake news.
• Request the person who posted ostensibly false information to delete the message.
• Warn the person who posted ostensibly false information that he/she will be removed from the WhatsApp group.
• Remove the person from the WhatsApp group.
• Change the WhatsApp group settings to “only admins”, after which only the administrator(s) of the group will be able to send messages.

All WhatsApp users and group administrators should avoid posting and forwarding messages containing incorrect information. Information without verifiable source references is often indicative of fake news.

The guidelines are available on the Commission’s website, at http://www.compcom.co.za/guidelines/ and will become effective on 01 July 2021.

The Guidelines were prepared in terms of section 77 of the Competition Act 89 of 1998, to provide practical guidance to industry players for the adoption of pro-competitive measures in the Automotive Aftermarket, and to promote greater participation of small businesses as well as historically disadvantaged individuals (“HDIs”) in the market.  The Guidelines also place responsibility on all industry players to disclose certain information to consumers, to enable them to make informed choices; the guideline also addresses consumer safety. A dispute resolution process and a self-monitoring mechanism by industry stakeholders are included.  The main guidelines are set out below.

Unbundling of maintenance plans and service plans at point of sale

The purchase price of motor vehicles usually includes a maintenance and/or service plan (“the value added products”).  The guidelines provide for the unbundling of value added products at the point of sale from the purchase price of the motor vehicle.  This is aimed at allowing consumers the option to purchase the products separately from the new motor vehicle.

In-warranty services, maintenance, and repairs by independent services providers

Currently an owner who has a motor vehicle serviced, maintained, or repaired by a party other than an approved dealer during the in-warranty period runs the risk of the warranty becoming void.  The guidelines provide consumers should have the freedom to choose an independent service provider (ISP), also during the warranty period, subject to certain safeguards: Where a consumer chooses to use an ISP during the In-Warranty period, there shall be no obligation on the original equipment manufacturer (“OEM”) to pay for any service and maintenance work undertaken by the ISP. The Motor-body repairs of consumers who have insurance cover shall be undertaken by an Approved Motor-body Repairer during the In-Warranty period, as allocated by an Insurer to the consumer.  Consumers who do not have insurance cover may repair their Motor Vehicles at a service provider of their choice at any point during the Motor Vehicle’s lifespan.  To ensure that all the work done on a Motor Vehicle is traceable ISPs are obliged to record such In-Warranty work undertaken by them in Vehicle Service Books or equivalent record. ISPs shall disclose to consumers, in clear and explicit terms, the risk of damage that could arise from the ISP’s work, including consequential damage to the Motor Vehicle, which may potentially void certain obligations of the OEM in terms of the Warranty.

Original and non-original spare parts

Currently consumers are effectively prevented from fitting parts not manufactured by the OEM to their own motor vehicles during the warranty period, because the warranty would become void. The guidelines provide consumers should have greater freedom of choice, also during the warranty period, subject to certain safeguards:  If there is any damage to the vehicle from the fitment of parts by an ISP, certain provisions in the warranty may be voided, but other provisions of the warranty may remain severable and enforceable. The OEM or Approved Dealer may conduct an assessment at its own cost to determine the cause of the damage and if the warranty is voided.  If there is a dispute a consumer can approach the relevant authority to investigate the matter.  A consumer that suffers harm from a defective product can bring a claim against any party in the supply chain in terms of section 61 of the Consumer Protection Act No. 68 of 2008.  Approved Dealers and ISPs must make consumers aware, in clear and explicit terms, of the risk of damage, including consequential damage, from the fitment of spare parts by an ISP, potentially voiding certain obligations of the OEM in terms of the warranty. To ensure that all the work done on a vehicle is traceable, ISPs are obliged to record such In-Warranty work undertaken by them in their customers’ Vehicle Service Books.

How do the guidelines affect Independent Service Providers (ISPs)?

The guidelines aim to ensure that OEMs and/or Approved Dealers make Original Spare Parts available to ISPs, where required to perform service, maintenance or repair work.  Conditional sale and distribution of Original Spare Parts shall only be reserved for those items that are linked to the Motor Vehicle’s Security System.  OEMs may not restrict an ISP’s ability to procure Original Spare Parts, when required for the purposes of effecting service, maintenance and repair work.  OEMs may however impose restrictions or prohibitions on ISPs from on-selling Original Spare Parts to third parties.

The guidelines aim to encourage OEMs to make available technical maintenance and repair information to ISPs, including information stored electronically or in the cloud. OEMs must make available to ISPs the OEM-technical information on reasonable terms and conditions, including terms related to usage, confidentiality and fees that are no less favourable to the terms offered to its Approved Dealers and Approved Motor-body Repairers, where applicable.  Access by ISPs to OEM-technical information includes security-related information that permits access to motor vehicle security systems, including coding, programming and software.  Such access must be subject to OEMs’ intellectual property and data privacy rights and ISPs meeting their accreditation requirements.

Dispute resolution

The dispute resolution processes under the Consumer Protection Act 68 of 2008 are available regarding any goods or services provided by the automotive industry to consumers, including to suppliers who are in turn also consumers within the industry supply chain.  The guidelines should be read in conjunction with these relevant provisions.  Affected parties can also refer disputes directly to the Motor Industry Ombudsman of South Africa (“MIOSA”) and the National Consumer Commission (“NCC”) for resolution.

These guidelines may have far-reaching implications and persons and entities involved in the auto industry should proceed with care and obtain legal advice before implementing changes to business practices on the basis of the guidelines.

This was a question the Western Cape High Court recently had to decide, in SA vs JHA & Others (7531/2020) [2020] ZAWCHC.

When a debt becomes prescribed by effluxion of time it is extinguished and rendered unenforceable. In Road Accident Fund vs Mdeyide 2011 2 SA 26 (CC) Van Der Westhuizen J explained the rationale and effect of prescription, stating:

“The realities of time and human fallibility require that disputes be brought before a court as soon as reasonably possible. Claims thus lapse, or prescribe, after a certain period of time. If a claim is not instituted within a fixed time, a litigant may be barred from having a dispute decided by a court. This has been recognised in our legal system – and others – for centuries.”

The prescription of debts is regulated by the Prescription Act No. 68 of 1969 (“the Act”). Different types of debts are subject to different prescription periods, as set out in section 11 of the Act. For example, the prescription period for any debt secured by a mortgage bond is 30 (thirty) years, while the prescription period in respect of any debt owed to the State is 15 (fifteen) years. Any “other” debt not specifically provided for in the Act, prescribes after 3 (three) years.

Important for the matter in question is that, under section 11(a)(ii) of the Act, the period of prescription for any judgment debt is 30 (thirty) years.

Divorce proceedings are often resolved by way of a negotiated settlement. The terms of the settlement are recorded in a written agreement, generally known as a consent paper. The consent paper regulates aspects such as the division of the parties’ assets; maintenance in respect of both the spouse and children; as well as the care and contact arrangements pertaining to the children. Once the parties have signed the consent paper, it is usually incorporated into the final order of divorce.

In reaching its decision on the prescription period applicable to an undertaking to pay maintenance contained in a divorce consent paper which is made an order of Court, the Western Cape High Court had to determine whether such an order gives rise to a ‘judgment debt’ or ‘any other debt’, as contemplated respectively in sections 11(a)(ii) and 11(d) of the Act. The important difference is that a ‘judgment debt’ becomes prescribed after 30 (thirty) years while an ‘ordinary debt’ becomes prescribed after only 3 (three) years.

The Court first considered what the effect is when a consent paper being made an order of court. The Court considered the case of Eke v Parsons 2016 (3) SA 37, where the Constitutional Court held that once a settlement agreement has been made an order of Court, the terms of the settlement agreement become an enforceable Court order. The Court accordingly held that a consent paper that is incorporated into a final order of divorce must be seen as a judgment of the Court and therefore gives rise to a judgment debt. Accordingly, the 30 (thirty) year prescription period applies to this debt.

The Court then considered whether an obligation to pay maintenance contained in a consent paper also constitutes a ‘judgment debt’, given that a maintenance order (generally) does not have the character of a final judgment (i.e. it can be varied). The Court stated that a maintenance order (which forms part of a consent paper) should not be treated differently to any other part of the order. This is because a maintenance order is final and enforceable until it is varied or cancelled.

The Court noted that under the provisions of the Maintenance Act 99 of 1998 a maintenance order granted by a Maintenance Court has the same effect as a civil judgment. The Court could find no reason why a maintenance order granted by a Maintenance Court should be treated differently from a maintenance order granted by a High Court. It therefore held that a maintenance order that forms part of a consent paper is a judgment debt and is subject to a 30-year prescription period.

In short, the judgment in SA vs JHA & Others confirms that a maintenance obligation contained in a consent paper that is made an order of Court is a ‘judgment debt’ in terms of s 11(a)(ii) of the Prescription Act 68 of 1969 and only becomes prescribed after 30 years. The party entitled to maintenance could therefore legally enforce an arrear monthly maintenance debt dating back to July 1993. The party obliged to pay maintenance only started paying in January 2019 and the aggregate arrear amount was R3 223 190.70.

Should you have any questions regarding the payment of maintenance, please contact our family law department, at 021 808 5600.