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Month: March 2018

CANCELLATION BY EMAIL

CANCELLATION BY EMAIL

Grantham (Tenant) and Anthea (Landlord) concluded a written lease agreement in respect of a flat situated in Bellville. Grantham was unable to meet certain obligations in terms of the agreement and Anthea suggested in an email that they cancel the agreement. Grantham accepted her proposal and both parties ended their respective emails with their typewritten names at the end of the email. Anthea, however, could not get a new tenant in time and want to hold Grantham liable for the duration of the lease, because she is of the opinion that the cancellation by email is not valid since the agreement required cancellation and variation to be in writing and signed by both parties. She approached MHI Attorneys for advice.

Most standard contracts have a non-variation clause, stipulating that no variation or cancellation would be effective unless reduced to writing and signed by contracting parties. The effect thereof is, should you intend to cancel an agreement, all you have to do is ensure that it is in writing and signed by both parties. However we live in a modern era where electronic communication systems are becoming the standard form to conclude transactions, by utilising emails to negotiate and enter commercial agreements.

These electronic transactions had to be regulated by way of legislation and accordingly the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) was promulgated to provide for the facilitation and regulations of electronic communications and transactions, and to promote universal access to electronic communications. The question that arises in this instance is whether the alleged cancellation of a contract by email is valid, if it is clearly stipulated in the non-variation clause that cancellation should be in writing and signed by both parties.

In Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash and Another 2014 ZASCA 178, the parties entered into several written agreements in terms whereof Spring Forest would lease goods from Wilberry. The agreements contained a non-variation clause which provided that variation and cancellation would only be effective should it be reduced to writing and signed by both parties. Spring Forest was unable to meet the certain obligations in terms of the agreement and following negotiations, the parties verbally agreed to cancel the agreements.

The terms of the cancellation and return of the machinery were recorded in various emails between representatives of the parties, with their names appearing at the end of their respective emails.  Spring Forest then entered into a new agreement with another entity (Combined Motor Holding Limited) to conduct the same business. Wilberry applied for an interdict to prevent Spring Forest from conducting its business and argued that the agreements were not validly cancelled. The High Court held that the email communications did not evince an intention to cancel the agreements, but only recorded the negotiations between the parties, and in any event the parties did not specify that their agreements could be cancelled by exchange of emails.

The Supreme Court of Appeal in considering the matter, took cognisance of the provisions of ECTA, specifically section 12 and 13 of the Act. Section 12(a) of ECTA stipulates that a legal requirement for an agreement to be in writing is satisfied if it is in the form of data messages, and data messages can be defined in terms of the ECTA as data generated, sent, received or stored by electronic means. Therefore the emails between the parties were governed by ECTA and the Supreme Court of Appeal held it was not in dispute that the emails between the parties fulfilled the requirement that the cancellation of the agreements must be “in writing”.

The real dispute and/or issue was whether the names of the parties at the end of their respective emails constituted signatures as contemplated by Section 13 of ECTA. Section 13(3) stipulates where an electronic signature is required by the parties to an electronic transaction and the parties have not agreed on the type of electronic signature to be used, that requirement is met in relation to a data message if; (a) a method is used to identify the person and to indicate the person’s approval of the information communicated; and (b) having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated.

The Court held that the parties clearly manifested a written intention to cancel the agreement and it was evident from the respective emails between the parties. Neither the terms of the written agreement or the respective emails stipulated the form that the signature was to adopt, therefore Section 13(3) applied to the cancellation of the agreements. The Court concluded that the typewritten names of the parties at the foot of the emails, were sufficient to identify the users and complied with the provisions of Section 13(3) of ECTA, thereby constituting a signature by the parties.

In the Spring Forest case the court took the approach of being pragmatic and practical about the issue rather than being formalistic, in order to ensure effective interpretation and application of the law.

It is best to consult with your MHI Attorney before concluding written agreements to ensure that your rights are protected.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

 

DETERMINING THE GROUNDS FOR INFORMED CONSENT

DETERMINING THE GROUNDS FOR INFORMED CONSENT

If a person gives consent without acknowledging, understanding and considering their rights beforehand, is their consent legal and permissible in court? In eviction proceedings, it is questioned whether the granted eviction order may be cancelled after the unlawful occupiers had allegedly consented to it.

Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O.

A block of flats, Kiribilly, situated on erven 87 and 88 in Johannesburg was unlawfully occupied by 184 residents consisting of low income earners and unemployed occupiers, where some occupied the residence for a period of 26 years.

The said property was purchased from M L Rocchi, whose attorneys served the unlawful occupiers a letter notifying them of the termination of their right of occupation. The occupiers approached Mr Ngubane to speak on their behalf, and he confirmed with the court that the matter had been settled, as the respondents had been informed.

The High Court granted an order, which was allegedly agreed upon by both parties, to have the occupiers evicted from the property. The question is whether the order is bona fide based on the nature of the consent.

Legislation

Contesting the order’s legal validity, the applicants submitted that, even if the consent was legally valid, the Court was under constitutional and statutory duties to provide that the eviction would be just and equitable.

Respondents submitted that the applicants failed to provide a defence as to the entitlement of remaining in occupation of the property, thus making the order just and equitable, as stipulated by Section 4(8) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act which says, “If the court is satisfied…that no valid defence has been raised by the unlawful occupier[s], it must grant an order.”

Validity of eviction order based on consent 

For consent to be legally effective, it must have been given by the applicants freely and voluntarily with the full awareness of the rights being disregarded. Given that the applicants were not aware of their rights, the factual consent that they allegedly gave was uninformed, therefore not legally binding. Because all information with regards to the conditions of the occupiers was not presented to the courts, the consideration of all relevant factors is disabled, rendering the order invalid. Above all, no information was given as to where the unlawful occupiers would go after the eviction.

Conclusion

In a matter where there is a person claiming to speak on behalf of illegal occupiers in a court appearance, any agreement that s/he has made is not binding to the occupiers because s/he is not the legal representative, nor an occupier. Any statements he makes in court are legally inconsequential, and thus nullified as giving informed or legal consent.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O. [2017] ZACC 18

CONFLICTING STATEMENTS IN COURT

CONFLICTING STATEMENTS IN COURT

With the number of videos being leaked on social media, regarding situations of assault, defamation and hate speech, it becomes that much easier for the defendant to be found guilty of such a crime as the proof is right there. The challenge comes with hearsay of contradictory statements, and the judge will then have to reach a decision based on probabilities of both the plaintiff and the defendant.

Bota v Minister of Police (3910/2015) [2017] ZAECGHC 122 (16 November 2017)

In this case law, the plaintiff instituted an action for damages against the defendant, Minister of Police, for injuries sustained when he was allegedly assaulted by members of the South African Police Service (SAPS). He testified that the SAPS employees held him and assaulted him with fists and open hands. Upon trying to cover his face, he was accused of resisting arrest and was tackled to the ground. His bodily injuries were: a fracture of the right leg, various other soft tissue injuries, bruises and abrasions.

The assault was denied by the defendant, indicating that it was, in fact, the plaintiff, allegedly inebriated at the time, who assaulted the SAPS employees. When the plaintiff called out a police officer’s name, and the officer he thought he was calling did not respond, he began swearing at the officers who were sitting in a Kombi. The defendant also pleads that the injuries sustained by the plaintiff were caused by his fall while running away from the employees after he swore at them.

In the court, three witnesses testified in support of the plaintiff, and two testifies on behalf of the defendant. One of the plaintiff’s witnesses failed to add to their statement that the plaintiff was tackled to the ground, and the omission of such an action raised inconsistency in the said witness’ testimony.

Reaching a conclusion

To come to a conclusion on the disputed issues, a court must make findings on:

  • the credibility of the various factual witnesses;
  • their reliability; and
  • the probabilities.

The Court will weigh up and test the plaintiff’s allegations against the general probabilities to determine whether the evidence is true or not. If the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true.

The main question is, what are the probabilities of the plaintiff and his witness omitting to mention the tackling in their statements to the police if this had occurred? The judge came to the conclusion that the defendant’s version is the most probable, and the plaintiff’s claim against the defendant is dismissed with costs.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Southern African Legal Information Institute. (2017). Bota v Minister of Police (3910/2015) [2017] ZAECGHC 122 (16 November 2017). [online] Available at: http://saflii.org/za/cases/ZAECGHC/2017/122.html [Accessed 20 Nov. 2017].