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Privacy rights in South Africa on Facebook
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.
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
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