Talking Point October 2013

A succinct discussion of selected topical, legal matters

I take great pleasure in submitting this edition of Talking Point to you.

The first article exposes a risk to which “Luddites” (not always being at the cutting edge of technological progress) like me are not exposed. The second article affects even Luddites (as the technology is already so well established). The third article is an example of how difficult practicing law is today. And much more.

I would greatly appreciate your feedback on Talking Point. Please email me at

Charl Theron

In this issue:


The dangers of defamatory “taggings” on Facebook

Gertruida Grové

by Getruida Grové

Facebook is developing our law of defamation. In Talking Point August 2013 we discussed such a case, and in the meantime there has been another development. On 4 September 2013, in Isparta v Richter, the Pretoria High Court gave judgment on the facts discussed below.
But firstly, some Facebook 101 for the ‘Luddites’. Facebook allows a user (A) to ‘tag’ another user (B) to any posting on A’s wall. The name of B will then appear at the end of A’s message (on A’s wall). The message will concomitantly also appear on B’s wall.
A wife (the former wife) and husband divorced, and the latter then married a Facebook enthusiast. She (the new wife) tagged the husband to the following posting, which also appeared on his wall (loosely translated):

“To all mothers and fathers, what do you think of a mother who, for her ’convenience’, allows a teenage step brother to bath his six year old step sister every evening?”

The posting attracted the comments:

“Not a chance”

and (loosely translated)

“Oh hell no, I would never allow that.”

The former wife (plaintiff) sued the new wife and the (ex) husband (defendants). They tried some defences, such as that there was no indication that the criticism was of the former wife, but Judge Hiemstra was unimpressed; and held that:

“The posting is scandalous to the extreme. It suggests that the plaintiff encourages and tolerates sexual deviation, even paedophilia. Some of the defendants’ friends lapped it up with relish and added their own snide comments, compounding the damage to the plaintiff’s reputation.”

Damages of R40 000 plus (substantial) legal costs were awarded in favour of the former wife. One is surprised that the award did not include an obligatory apology on Facebook.
It is imperative to review your Facebook settings to ensure that you are notified when you are tagged in posts, so that you can take the necessary steps to untag yourself to distance yourself from unwanted publications.

And you thought it was safe to text anyone anytime!

Gertruida Grové

by Gertruida Grové

In an August 2013 USA judgment (Kubert vs Colonna) the New Jersey Superior Court held that a person (the sender), who knowingly sent a text message to someone else (the recipient) whilst the latter is driving a motor vehicle, could be co-liable for damages that result from a collision caused by the recipient (due to reading whilst driving).
In the normal course, the sender should be able to assume that the recipient will read a text message only when it is safe and legal so do so (not, for instance whilst driving a vehicle). However, if the sender knows or has special reason to know that the recipient is driving and will read the text immediately, then the sender has a duty to users of public roads to refrain from sending the text message at such time; and if she does not, she has taken a foreseeable risk; and it would not be unfair to hold her responsible for the consequences of the distraction (of the recipient).
On the facts, it was held that the sender (the defendant) was unaware that the recipient was driving when she sent the text. The plaintiffs disagree, and have appealed.
It is uncertain whether a South African court will hold the sender liable; but, to be on the safe side, think before you press send.

Consumer Protection Act and National Credit Act: Confusion reigns

Amien Hoosain

by Amien Hoosain

MFC (a division of Nedbank Ltd) v Botha, a judgment of the High Court, Cape Town, on 15 August 2013, concerned a collision between the Consumer Protection Act and the National Credit Act, with regard to an instalment sale agreement of a motor vehicle.

Technically, under the instalment sale agreement, Nedbank purchased the vehicle from a dealer, and then on-sold the vehicle to Botha (there is no contract between the dealer and Botha). Soon after receiving delivery of the vehicle, Botha, regarding the vehicle as defective, returned it to Nedbank.
Under the CPA, a consumer may (within six months) return goods to the supplier, without penalty, if the goods are defective; and the supplier must repair, replace, or reimburse, at the direction of the consumer.

Under the NCA, a consumer may surrender an asset purchased under an instalment sale agreement (a form of credit agreement) to the credit provider; and the latter may sell the asset, and deduct the proceeds from the consumer’s debt.

Botha tried to return the vehicle to Nedbank under the CPA (essentially, “give back my money”). However, Nedbank treated the return as under the NCA (essentially, “thank you, and now pay me more”).
Botha lost.

The Court held that:

  • – Nedbank was not vis-à-vis Botha a ‘supplier’ for purposes of the CPA;
  • – Nedbank had not applied the NCA correctly; and
  • – Nedbank was allowed a postponement to apply the NCA correctly.

It seems inconceivable that an instalment sale agreement (thousands are entered into monthly by consumers, just in respect of vehicles) will negate the rights of a consumer under the CPA. The CPA specifically states that if any provision therein can reasonably be construed to have more than one meaning, a court must prefer the meaning that will best improve the realisation and enjoyment of consumer rights.

The judge seems to have misunderstood the interaction between the two Acts. The CPA (like the NCA) requires particular critical, contextual, and purposive interpretation to make sense of the “modern” style of legislative drafting. A different judge may well find that, whilst the CPA does not apply to the ‘credit providing’ component of an instalment sale agreement, it does apply to the ‘sale of goods’ component; and therefore that for purposes of the consumer’s rights to safe and good quality goods, the credit provider is vis-à-vis the consumer a ‘supplier’ for purposes of the CPA. Such latter position will also be more consistent with the legal position in other countries. The judge in the Botha case failed to consider foreign law, as actually encouraged in the CPA.

Harassers Beware! – An instruction to SAPS

Roxanne Ker

by Roxanne Ker

In Talking Point May 2013 we discussed the Protection from Harassment Act 17 of 2011 that provides for complainants (harassees) to apply for a protection order. In order to achieve such protection, police officers have certain powers and responsibilities. Earlier this month a National Instruction was gazetted (Government Notice 688, Government Gazette 36845) to police officers on how to respond to a complaint of harassment under the Act.
The Instruction addresses various situations – including; keeping of a Protection From Harassment Register in the Community Service Centre; filing of protection orders and warrants of arrest; serving of protection orders without delay, seizure of any weapon, how to deal with a protection order if the identity of the (alleged) harasser is unknown; harassment using an electronic communications device; the arrest of a harasser alleged to have contravened a protection order; and the collection of the harassee’s personal property (under police escort).
A SAPS member who fails to comply with the Act or the Instruction will face disciplinary proceedings. Hopefully, SAPS will acquire the necessary infrastructure to implement the Act effectively.

Demystifying the Latin in the law of lease

Amien Hoosain

by Amien Hoosain

Actebis 319 CC v Bamboo Rock 1115 CC, a judgment of the High Court, Durban, on 28 August 2013, involved a modest lease agreement, (one suspects) big egos, and a surprising amount of Latin. The parties entered into a three year lease agreement commencing on 1 September 2011. In terms of the agreement, rental of R16 000 was payable on the 5th day of each calendar month. The lease did not contain a lex commisoria (a ‘breach clause’).

On 7 September 2012 the lessor cancelled/purported to cancel the lease because the lessee:

  • – deliberately withheld R5 000 from the August 2012 rental; and
  • – failed to pay the rental for September 2012 timeously.


The lessor applied to Court to eject the lessee from the premises. The latter vigorously opposed. The lessee argued that the cancellation of the lease by the lessor was invalid because:

  • – regarding the withheld R5 000, the lessor had not by interpellatio (demand) placed the lessee in mora (put the lessee to terms), and therefore was not entitled to cancel the lease; and
  • – in respect of the September rental, the lessee had consistently paid rental late, and the lessor had consistently, without complaint, accepted the late payment; thereby varying the agreement to allow the lessee to pay the rental late.


The Judge agreed with the lessee on both of these arguments. The application was dismissed with costs.

The Judge confirmed that the tolerant treatment of a lessee in the Roman law is part of our common law. Unless the specific terms of a lease agreement override the common law, such tolerant treatment prevails. Had the lessor upfront incurred the cost of a professionally drafted agreement, with standard ‘boilerplate’ clauses of Event of Default, Non-variation, Non-relaxation, Whole Agreement, and the like, the lessor could have avoided the Latin lesson and the expensive and (perhaps) humiliating loss.

Electrical fence systems: What owners and occupiers should know

by Nicole Swart
Regulation 12 of the Electrical Machinery Regulations, 2011, which came into effect last year, imposes obligations on owners and occupiers of properties with electrical fence systems. Authorities have started enforcing the Regulations; and owners and occupiers ought to take note. Penalties for non-compliance with the Regulations could be harsh. In the event of harm to someone, non-compliance could also be indicative of negligence (and thus liability).
Every user (meaning the person actually using for own benefit, such as an owner in occupation, or a lessee) or lessor of an electrical fence system (in practice, of the relevant immovable property) installed on or after 1 October 2012 must have an electrical fence system certificate (a “certificate”).
Only a person duly registered under the Regulations as an electric fence system installer may issue a certificate. A certificate is transferable.
A certificate is not required for an electrical fence system installed prior to 1 October 2012. However, any addition or alteration to such an electrical fence system, or any change in ownership of such an electrical fence system, on or after 1 October 2012, will activate the requirement of a certificate.
There are several issues that are less than clear. Must each owner of a sectional title unit have a separate certificate? Probably not. Seemingly, a lessee will require a certificate. However, if the lessor has a certificate, it would be illogical to require a lessee to have an additional certificate.
The purchaser of a property that has an electrical fence system must ensure due compliance by the seller with the Regulations. Due to the various legal and regulatory pitfalls and risks faced by a purchaser, we advise a purchaser to consult with his or her own conveyancer before signing any agreement/offer to purchase.