Facing cancer & covid 19
Much has changed in the legal landscape surrounding exemption clauses from when the landmark case of Durban’s Water Wonderland (Pty) Ltd v Botha 1999 1 SA 982 (SCA) was decided. In that case, the court had to decide on the enforceability of a disclaimer notice when the plaintiff and her daughter were flung from a jet ride in an amusement park. The SCA held that, since the defendant had done whatever was necessary to bring the notice to the attention of the plaintiff, the notice could be incorporated into the contract between the plaintiff and defendant, and the disclaimer notice was upheld.
Over time, the strict interpretation of contract followed by the court in Durban’s Water Wonderland has been tempered by various decisions of our courts. As can be seen from the decisions below, courts have become unwilling slavishly to enforce exemption clauses, preferring instead to examine whether the terms of the contract operate unfairly and unreasonably on the plaintiff.
In the case of Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA), the court stated in an obiter dictum that exclusion of liability for damages for negligently causing the death of another was “radical” and that it was arguable that to permit such exclusion would be against public policy because it runs counter to the high value which previously the common law, and now the Constitution, places on the sanctity of life.
In the case of Barkhuizen v Napier 2007 (5) SA 323 (CC), the Constitutional Court held that, while it was necessary to recognise the doctrine of pacta sunt servanda, courts could decline the enforcement of a contractual clause if implementation would result in (i) unfairness or (ii) would be unreasonable for being contrary to public policy. According to the court, a term in a contract that seeks to deprive a party of judicial redress is prima facie contrary to public policy, and is inimical to the values enshrined in our Constitution, even if freely and voluntarily entered into by consenting parties.
In Naidoo v Birchwood 2012 (6) SA 170 (GSJ), the court held that an exemption clause which enabled a hotel to escape liability for injury to its customers while on hotel premises could not be enforced. The court stated that the question is whether in the circumstances of a particular case (e.g. where the plaintiff is staying at a hotel or visiting a public place), the enforcement of a contractual term would result in an injustice. If the exemption clause prevented the contracting parties from having access to the courts, it would be unfair and unjust.
The most far-reaching incursion into the sanctity of exclusion clauses can be found in the Consumer Protection Act, No 68 of 2009. Regulation 44(3)(a)2 of the Act provides that a term of a consumer agreement is “presumed” to be unfair if it has the purpose or effect of “excluding or limiting the liability of the supplier for death or personal injury caused to the consumer through an act or omission of that supplier…” This regulation creates a presumption that the defendant bears the onus to dislodge, and which the plaintiff may then rebut.
It is submitted that exclusion clauses have gone from being prima facie enforceable to prima facie unenforceable. The reason is that such clauses deny access to the courts, a situation that our courts are no longer prepared to countenance for the reasons stated above. The result is the plaintiff no longer bears the onus to show that the clause limiting liability for injury or death is unfair and unreasonable. The defendant now bears the onus of showing that the clause is fair and reasonable.
Privacy rights in SA – Facebook
Please see below for an important case dealing with the question whether an aggrieved party has a right to privacy when evidence about him has been obtained unlawfully obtained from Facebook. Feel free to share it with your colleagues and clients who might find it of interest. You are also welcome to contact me by reply email or phone with any comments or questions.
In the recent case of Harvey v Niland 2016 (2) SA 436 (ECG), the applicant, Mr Harvey, and the first respondent, Mr Niland, were the only members of a close corporation, Huntershill Safaris CC, which offered professional hunting services to its clients. Niland was employed by Huntershill as a professional hunter and safari guide until mid 2015. Around that time, Harvey and Niland parted ways on bad terms and Niland took up employment with another hunting company, Thaba Thala Safaris.
Harvey suspected Niland of breaching his fiduciary duties to Huntershill by acting in competition with Huntershill, and soliciting and diverting its clientele to Thaba Thala. A colleague provided Harvey with Niland’s Facebook login details. This enabled Harvey to access Niland’s Facebook account without Niland’s permission. Harvey then downloaded Niland’s Facebook communications which showed that Niland had been actively soliciting Huntershill’s clientele and diverting them to Thaba Thala.
Harvey then brought an urgent application to interdict Niland from soliciting Hunterhill’s clientele on the basis that these solicitations were causing financial and reputational damage to Huntershill. Niland argued that the communications had to be struck out because they infringed his right to privacy and were obtained through the commission of an offence under s 86(1) of the Electronic Communications and Transactions Act 25 of 2002. A central issue before the court was whether the Facebook communications unlawfully obtained by Harvey could be admitted.
The court dismissed Niland’s claim to privacy and held that the hacked posts, while revealing duplicitous conduct on Harvey’s part, were essential to Harvey’s case and could not in practice have been procured in another lawful way. In the circumstances Niland’s appeal to privacy rang hollow and would need to be overridden by the public interest that his deceitful conduct be exposed. The meant that the evidence illegally obtained by Harvey was admissible and Niland’s application to strike the evidence out was dismissed.
Of interest to attorneys and their clients is the court’s reasoning in this case. The court explained that:
1. At common law, the rule is that all relevant evidence is admissible unless rendered inadmissible by an exclusionary rule. However, that rule is not absolute: the court has a discretion to exclude unlawfully obtained evidence.
2. In deciding whether to exclude unlawfully obtained evidence or to admit it, the court will have to regard to the following factors:
2.1 Privacy, like other rights, is not absolute. As a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks. This diminished personal space does not mean that once people are involved in social interactions or business, they no longer have a right to privacy. What it means is that the right is attenuated, not obliterated, depending on how far one has strayed from the inner sanctum of the home.
2.2 Is the matter before the court a criminal or a civil matter? In criminal proceedings, an accused has a right against self incrimination and to silence. The accused is therefore not obliged to disclose his defence, or to assist the state to prove its case by providing it with any documents that may strengthen its case. On the other hand, in a civil case, a party is not only obliged to disclose his case, he is also obliged to discover all documents which may damage his own case or which may directly or indirectly enable his adversary to advance his case.
2.3 The upshot of this distinction between civil and criminal cases is that in a civil case, if the evidence involved is the type of evidence which the litigant would or should eventually obtain through lawful means (e.g. discovery) had he known about it, the court will likely admit it, especially in cases (such as this one) where the applicant would not otherwise been able to lay his hands on it.
It would appear from obiter dicta of the court in Harvey v Niland that the right to privacy is more limited when one uses a social media platform such as Facebook to issue certain communications. The person issuing those communications cannot expect to rely on the violation of his/her privacy if those communications are then brought to light, whether the communications were obtained legally or illegally.
On the Other Side of Opposite
By George Kleynhans
Published by George Kleynhans
Copyright © GeorgeKleynhans 2012
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PARENTAL GUIDENCE IS ADVISED
Not suitable for children under the age of 12 years
On the Other Side of Opposite
Chapter1 Mind over matter
Chapter2 Lawyer on safari
Chapter3 Hunting memos
Chapter4 No law without justice
Chapter5 Mafia at work
Chapter6 Peace of mind
Chapter8 Alcoholic Anonymous
Chapter10 Last dance with the devil
Chapter11 African tradition
Chapter12 Legal advice
The founder of SA non-citizen Legal Protector during the soccer worldcup 2010.
The author of ebook “On the Other Side of Opposite”
This ebook “On the Other Side of Opposite” is dedicated to all those “white” people who found themselves on the other side of the law with Madiba in their struggle for a free and democratic South Africa.