Privacy in SA on Facebook

Privacy rights in South Africa on Facebook

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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.

rates and taxes

Are you liable for historical arrear property rates on your property?
12 January 2015
 
Who is responsible for historical arrear property rates and taxes on your property? The good news is that the person who owned the property at the time the debt was incurred is liable. But did you know that a municipality can in some instances cause your property to be sold in execution for debts being owed by a previous owner?

Municipalities are obliged to collect charges that are payable to them for property rates and taxes and for the provision of municipal services. If you buy a house, the relevant municipality will – after the Seller has settled the required amount – issue a clearance certificate that certifies, amongst other things, that all debts have been settled in respect thereof for two years preceding the date of application for the certificate. Now the question arises: What about debts owed to the municipality that are older than two years?

The short answer is that of course the person who owned the property at the time the debt was incurred will be liable. Despite this reality, a threat exists to the new owner of the property based on the infamous section 118(3) of the Municipal Systems Act which provides a municipality with a lien over a property within its jurisdiction to secure payment of money due to it on that property.

What this means is that if there are monies owed to the municipality which relates to the property, the municipality can obtain a judgment against the person liable for the debt (remember it will be the person who owned the property at the time the debt was incurred), but because of section 118(3) the municipality will have the right to attach the property and cause it to be sold in execution to recover the money being owed. And this property may just be that dream house that was registered in your name not that long ago.

Our Supreme Court of Appeal ruled that the transfer of ownership does not destroy the lien created by section 118(3) and the lien will in fact “follow the property”. The appalling result of this is that a new owner may be forced to have to save his property by paying the municipal debt of someone else. You can later try and recover the money from a previous owner, but this may be a futile exercise, leaving you even more out of pocket.

A notable exception to the above rule is where properties are purchased at execution sales where the municipality did not exercise its rights in terms of its lien. In such a case, our courts have recently ruled, the lien of a municipality over a property lapses. Accordingly, where a municipality is aware of the sale in execution of a property and it issues a clearance certificate without any objection or without exercising its rights in terms of section 118(3), the purchaser will acquire a clean title over the property.

Not all debt older than two years are recoverable by the municipality and it is necessary to distinguish between the following types of debt:  rates charges (taxes) and charges for electricity, water, gas and sewer and refuse charges. The reason for having to differentiate is because certain debts prescribe after three years in terms of the Prescription Act and are no longer enforceable.

Rates and taxes only prescribe after 30 years and electricity, water and gas charges after 3 years. It would seem that, at least at present, sewer and refuse charges also count as ‘rates and taxes’ and will thus only prescribe after 30 years.

If you are a potential buyer your must consult with your attorney who can assist you to include a relevant provision in the Deed of Sale that obliges the Seller to settle all debts due to the relevant municipality, and not just the debt incurred during the two years preceding the date of application for the clearance certificate.

As a Seller you would need to consult with your attorney to discuss any provision in the Deed of Sale which has the effect that you guarantee that all debts due to the municipality are settled.

Also estate agents should take note and ensure that their pro forma contracts cover this scenario and that they inform the parties of the effect of section 118(3) as discussed above.

The liability for old municipal debts against the property is a contentious issue and will evoke strong emotions from Sellers and Buyers alike. It is therefore critical that both parties carefully consider the wording of any Deed of Sale and where necessary discuss the situation with a property specialist before entering into any agreement.

Attorney George Kleynhans

Attorney George Kleynhans

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Deceased estates – disputes

disputes over a deceased relative’s estate
22 May 2018
 

If someone leaves a sizeable estate behind, it may cause conflict among the possible heirs. The help of an attorney, when settling an estate after a death, can avoid unnecessary troubles.

The Administration of Estates Act, 1965, determines what must happen with an estate after a person’s death. There are certain steps that should be taken to ensure the process is legal. However, if the estate is worth a lot of money or the deceased has children, then it is a good idea to seek the assistance of an attorney, as family disputes and debts of the deceased can be confusing. In order to do this an executor will be appointed to act on behalf of the estate.

Finding the will of a deceased relative

If the deceased person left a will the first thing to do is find it. If they did not tell you beforehand where their will was, you can try calling the probate court in their district or the office of the Master of the High Court to check if they have a copy of the will. Other places to call would be the deceased’s life insurance company, bank or lawyer. Otherwise, the deceased might have left a copy of it somewhere secure in their home.

Who is the executor?

An executor is the person appointed to handle the process of settling the estate. The executor will either be mentioned in the will of the deceased or appointed by the Master of the High Court. The Master will ultimately decide who will take the role of executor. If the chosen executor doesn’t know how to handle the estate or is unfamiliar with the legal procedure, he or she can go to a lawyer for help. Once the executor has been chosen, the Master will give them “Letters of Executorship”, which will give only them the authority to handle the estate.

What does the executor need to do?

The executor has several responsibilities such as arranging the valuation of the estate’s property and assets. They will also be responsible for contacting and dealing with all the beneficiaries.

Some other responsibilities of the executor include:

•    Arranging provisional payments for the family’s immediate needs.
•    Opening a bank account for the estate and depositing the estates money in it.
•    Paying all the necessary estate duties.

It’s important that any person who wants to act on behalf of the deceased person’s estate have the Letters of Executorship. If not, their actions would be considered illegal. This also applies to the spouse of the deceased person. This eliminates the possibility of several different family members trying to influence the estate’s dealings. The executor will also decide how the assets will be divided between the heirs and if any or all assets need to be sold. If a will is in place the executor will base his/her decisions on it.

Eventually, the executor will prepare a liquidation and distribution account. This would include what they intend to do with all the assets left after expenses. This account would be delivered to the Master, who will check to see if the executor’s actions reflect the will of the deceased and that all legal requirements have been fulfilled.

Important things to keep in mind?

The Master of the High Court should be notified of the deceased person’s estate not later than 14 days after the death. According to the Department of Justice, the death of anyone who owned property in South Africa must be reported to the Master, whether or not they died in the country.

All estates that exceed R50 000 should be reported to the Master of the High Court directly because magistrate’s offices have limited jurisdiction. If reported to the magistrate’s office, estates will usually be referred to the Master.

References

The Department of Justice and Constitutional Development. 2012. “Reporting the estate of the deceased”. Accessed from: http://www.justice.gov.za/services/report-estate.html/ on 11/05/2016.

Administration of Estates Act 66 of 1965. Accessed from: http://www.justice.gov.za/ on 11/05/2016.

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).

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