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Delict and Civil Claims

Neighbours’ Facebook Feud: Cats Pics, Karens & Keyboard Muppets

By | Delict and Civil Claims, Property

“Dance like no one is watching, but text, post, and email like it will be read in court one day.” (Anon)

When can the target of rude comments and insults on a community Facebook group sue?

The High Court recently grappled with a community debate over free-roaming jackals that turned sour.

The golf estate and the Facebook group

The scene here is one of Sandton’s large and secure golf estates, whose closed Facebook group, aimed at fostering community spirit, reaches some 1,800 residents.

Jackals roaming freely on the estate were at the heart of this dispute, with residents split into two opposing camps.

  1. In one camp, those believing that all wildlife in the estate should be left alone – including the jackals.
  2. In the other camp, those arguing that, as well as being predators dangerous to other animals (including domestic pets), jackals are carriers of rabies. Presumably this group advocates some form of control measure, no doubt an emotive topic.
Cat pics and Karen insults

The online debate between the two sides began civilly enough, but that changed with a series of posts by a prominent supporter of the “hands-off-the-jackals” lobby. In criticising the other camp, she targeted one of them by name. Stung, the recipient of what she perceived as insulting and defamatory attacks, demanded that her opponent remove the posts and apologise to her.

Central to the outcome of this case are the posts themselves. They included an image of a cat in a spiked vest (with the comment “maybe this will help the cats”), suggestions that the target of the posts shouldn’t be living in Africa, that she had published false information on the group, and that she was “stupid” and a “stupid keyboard muppet”. She read further posts as referring to her as a “B” (she took this to mean “bitch”) and as caricaturing her as a dog (with a bob haircut like hers) and as a “Karen”.

Off to court with a two-pronged attack

As a professional (actually a business rescue practitioner), the complainant wasn’t prepared to take any of that lying down. Offended by the poster’s refusal to retract, she sued her in the Magistrate’s Court for damages of R250,000, asking also for orders to remove the posts and apologise publicly for them.

She lost, appealed to the High Court and lost again. Why?

It’s important to note firstly that she had launched a two-pronged legal attack, enabling her to prove a valid claim for either or both of actionable insult (where offending statements injure your dignity or self-worth) and defamation (where they damage your reputation). To win, she needed to show either that the statements referred to her and were defamatory of her, or that they were wrongful and hurt her dignity.

Her failure to convince the Court that she had a case was partly because she hadn’t been able to prove all the facts needed to establish a case. But it was also rooted in two principles which anyone engaging in public debate (online or otherwise), and anyone thinking that an insult is perfectly fine if it’s structured as a “joke” or “jest”, needs to take note of.

Let’s have a look at each principle.

Public debate is not for sissies

The Court: “The law expects those who take part in public discourse to do so with a degree of pliancy and robustness. A subjectively hurtful remark is not wrongful unless a reasonable person in the plaintiff’s position would take exception to it.”

More particularly, this being a closed group of neighbours in a security complex: “Those who engage in online debate about matters of mutual interest between neighbours ought reasonably to foresee that the criticism they sustain may be tart and, at times, discourteous.”

In this case, while some of the posts were definitely rude and hurtful, no reasonable person would have thought that they had tarnished their target’s reputation. Rather, readers would have thought less of the poster “because she was unable to keep to civil terms of debate.”

Everything said in jest?

Some, but certainly not all, “jokes” are safely posted. The poster of this “cat in spikes” picture said it was just a light-hearted joke, and the Court agreed. A joke can certainly be defamatory if it’s a deliberate attack on the target’s reputation – but in this context, it was just “a satire of the entire debate between the parties.” It wasn’t, said the Court, “of the defamatory kind”.

Turning to what appears to have been another attempt at a joke in the form of the dog caricature and “Karen” reference, what saved the poster here was the lack of proof that this was actually aimed at the claimant. Had it been, calling her a “Karen” (“a privileged, entitled woman with a thin skin and a quick temper”) would have opened her up to ridicule and “would probably have been defamatory”.

There’s a fine line or two there. Call us before posting if you aren’t sure that you’re on solid ground!

Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.

© LawDotNews

Hamburger From Hell Takes a Bite out of Restaurant’s Profits & Reputation

By | Delict and Civil Claims

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” (Lord Atkin in the groundbreaking 1932 House of Lords decision that found a soft drink manufacturer liable for a consumer’s shock and illness after she discovered a decomposed snail in the remains of her ginger beer.)

A simple burger night turned into an ordeal for a diner who swallowed a “needle-like object” hidden in her meal. The High Court’s confirmation that she can claim damages from the restaurant is a reminder of how strictly our courts hold businesses to their duty of care towards customers.

What happened?

The diner and her husband visited their favourite restaurant in Stellenbosch for burgers and a bottle of wine. Her relaxed night out turned into a nightmare when, halfway through her burger, she felt sudden pain and realised something was stuck in her throat. Panicking after she couldn’t get it down, she rushed to the bathroom, coughing and noticing blood in the basin. A trip to the emergency room confirmed her worst fears: X-rays revealed a “needle-like object” lodged in her oesophagus.

Despite emergency treatment and surgery attempts, she had to endure five days in hospital, repeated scans, and constant distress before the foreign object finally passed. She testified to the pain, humiliation and panic she experienced throughout the ordeal. We can imagine just how high her levels of anxiety must have been when she recalled the story of a family friend who died after swallowing a fish bone that punctured his intestines.

The law: Who’s responsible?

She sued the restaurant for damages, arguing that the business had a clear duty to serve safe food. The restaurant denied responsibility, saying it bought ingredients from trusted suppliers and followed standard food safety practices.

But the Court found that those defences didn’t hold up. The restaurant’s only witness wasn’t on duty on the night in question and could not say what safety checks were actually done. No staff testified about what happened in the kitchen or how such an object could have ended up in the meal.

Let the facts speak for themselves

In the end, the Court applied a well-known legal principle: If something happens that normally wouldn’t occur without negligence, like swallowing a sharp object hidden in food, the facts speak for themselves (“res ipsa loquitur” to lawyers). The business must then explain how it happened and show that it wasn’t at fault.

Here, there was no reasonable explanation. The restaurant controlled every step of the food preparation but failed to show how a foreign object could have slipped in without negligence. The business was found liable for all the harm suffered.

The key takeaways for businesses

This is a clear reminder that, in 1932 as today, if you serve the public, you have a duty to keep your premises and products safe. If something goes wrong, you must be able to prove that you took all reasonable steps to prevent harm. Fail to do this and you could be held liable for negligence.

We can help you check your supplier contracts, disclaimers and risk policies to make sure your business is protected. 

Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.

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Disclaimer Notices: How to Strengthen Yours

By | Delict and Civil Claims

“The minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer.” (Will Rogers, cowboy and actor)

We’ve all seen (and probably ignored) disclaimer notices as we enter shopping centres, restaurants, businesses, hotels, sporting venues and the like. Usually, they read something along the lines of: “All persons enter at their own risk” or “the owner shall not under any circumstances be liable …blah blah blah…”

A legal duty to ensure safety

The restaurant owner in the McDonald’s case we discuss below had accepted that it had “a legal duty to exercise the standard of care expected of a reasonable restaurant operator in the circumstances by ensuring that the premises of the restaurant were safe for patrons to use.” 

And therein lies your risk, because that general principle applies to all owners and occupiers of premises which are open to the public. The question is, how well do disclaimer notices really protect businesses from legal claims? 

The McDonald’s “slip and trip” case

A customer sued the owner/operator of a McDonald’s in Cape Town. On her way through the restaurant to find a table for a business meeting, she slipped and fell on a recently mopped floor. Her fall was a serious one – in considerable pain, she was carried from the restaurant on a stretcher and underwent operations to her ankle and knee. 

She argued that the owners had acted negligently by failing to:

  • Keep the floor dry and safe
  • Place warning signs showing the wet floor
  • Cordon off the wet area to prevent accidents

The owner defended itself both by denying any negligence, and by relying on the disclaimer notice posted at the entrance (bolstered by a “floors may be slippery when wet” sign). It also suggested that the customer had caused, or at least contributed to, her own accident by not keeping a proper lookout, and by walking too fast. 

As always, the onus was on the customer to prove her case, i.e. that the restaurant had been negligent, and that its negligence had caused her fall. 

In the end, she succeeded in doing both, with the Court accepting that the restaurant hadn’t put up “wet floor” signs to cordon off the wet, slippery area of the floor. This was the nail in the coffin – it hadn’t followed its own cleaning protocols. 

The “lady with the mop”

How had the Court reached that conclusion? By applying the “thing speaks for itself” (res ipsa loquitor) doctrine, which says that if the occurrence itself (in this case, the fall) is enough to infer negligence, it’s up to the person being sued to provide a contrary explanation. 

The restaurant was unable to give any explanation for the fall which would counter the inference of negligence. The Court noted in this regard that the restaurant hadn’t called as a witness the “lady with the mop”. She had been mopping the floor at the time and was, said the Court, “the only person that could have shed light on whether the cleaning protocols were strictly adhered to.”

This left the Court to hold that the restaurant hadn’t taken reasonable steps to prevent the incident, and that its negligence had caused the fall. Finally, there was no contributory negligence on the part of the customer, so the owner is 100% liable for whatever damages she suffered. 

Unless, of course, its disclaimer notice shields it from liability…

“A disclaimer is not an automatic legal shield” 

The disclaimer notice read: “All persons entering McDonald’s and using its facilities, including drive-through and parking areas, do so entirely at their own risk. Neither McDonald’s nor it’s (sic) suppliers, employees and or representatives shall be responsible and or liable in respect of any theft and or loss and or damages sustained to property and or the persons of any customer and or employee of McDonald’s whilst on the premises for whatsoever reason. Right of admission reserved.”

The customer did not recall noticing this disclaimer at the entrance, but in any event, as the Court put it (emphasis supplied): “it must be emphasised that a disclaimer is not an automatic legal shield, and must … be evaluated in the context of the overall safety management of the premises.” 

Despite the disclaimer, the restaurant would still be liable if it hadn’t taken reasonable steps to guard against the customer slipping. It was unable to put forward an explanation to counter the inference of negligence, and its failure to follow its own safety protocols sealed the deal.

So, disclaimer notices aren’t foolproof. How can you strengthen yours?

No disclaimer will ever be a watertight defence against liability, but you can strengthen yours significantly by understanding what sort of factors courts are likely to take into account when assessing such claims. We share below some tips on how to address each of these risk factors:

  • Disclaimers must be conspicuous, clear and visible: A disclaimer hidden in small print or obscured by a door is unlikely to hold up in court, so maximise visibility by placing signs at entrances where they are easily seen by everyone before they enter the premises. Use legible fonts and contrasting colours.
  • Plain, simple language is essential: If a disclaimer is too complex or ambiguous, or uses too much legal jargon, courts may interpret it against you or accept that your customers may not have understood it.
  • The Consumer Protection Act (CPA): The CPA does not allow disclaimers that exclude “gross” (extreme or total) negligence, and it requires that such notices be conspicuously drawn to the attention of consumers, who must also be treated fairly, reasonably, and justly. We can help you draft signs that comply.
  • Disclaimer or no disclaimer, you must still take reasonable safety measures and give warning of any risk areas: Warning signs and proactive safety practices and protocols will reduce your risk of liability substantially.

If you need guidance on drafting effective disclaimer notices tailored to your business, or help with your risk management practices, we’re always here to help. 

Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.

© LawDotNews

Revenge Porn and a Fake Facebook Profile – Online Defamation Costs a Couple R3.55m

By | Delict and Civil Claims

“The scariest thing about digital abuse is how a victim can never know how far it went, how many people it reached, and how much those who saw it bought it.” (Psychology Today)

Our laws are always protective of our rights to privacy and dignity, and a recent High Court decision confirms that defamation can be a very costly business for perpetrators.

In serious cases such as those involving “revenge porn” (a term commonly used to describe “the publication of non-consensual intimate images, recordings or depictions”) offenders face criminal prosecution as well as substantial damages claims. As evidenced by a recent High Court default judgment ordering a husband and wife to pay their victim R3.55m in damages. This after they used a fake Facebook profile and other channels to disseminate explicit images and videos of her. 

The married man, his wife, and their victim

The victim (a highly qualified professional woman) was misled by a married man into thinking that he was single. A romantic relationship developed and deepened to the stage where he proposed marriage, and she accepted. We can only imagine her horror when, six months down the line, the man’s wife appeared out of the ether with the shocking disclosure that he was already married – with one child at home and another on the way. 

The victim immediately broke off the relationship, which is when her ordeal began. The husband and wife took turns to attack her, initially with reference to what the husband called “porno videos” – explicit and intimate images and videos which he had recorded without her knowledge or consent. 

The details make for grim reading, but they are important in understanding the Court’s award of substantial damages:

  • Firstly, the husband refused to stop seeing his victim. He visited her workplace, ignored her attorney’s letter demanding he stop communicating with her, and threatened to send the videos to her attorney, family and friends. 
  • He then created a fake Facebook profile in her name, sent her a video clip to show what he had on her, then invited her friends, family, and professional colleagues to join this fake profile. He went on to publish the videos, threatening to send them to “everyone” if she did not sleep with him. They were unfortunately seen by her friends, family, and strangers before she could get the page taken down. 
  • The second perpetrator, the man’s wife, appears to have joined in at this stage, with comments on the victim’s fake Facebook profile “calculated to defame her and depict her as a dishonest, immoral, promiscuous and adulterous person who is a disgrace to her family and profession.” The wife then took her attack directly to the victim’s workplace, barging in to her offices and making highly defamatory, embarrassing, and humiliating communications to her colleagues. An email to the victim’s bosses stated that she was a homewrecker and “was not an asset to the company if she slept with married men.”
  • Embarrassed, humiliated and unable to continue working, the victim was so emotionally distressed that she considered suicide. Stress-related medical problems, fear of going out or of forming personal relationships, and fears for her own and her family’s safety led to severe emotional trauma. She remains on medication for PTSD (post-traumatic stress disorder) and is also under long term treatment by a psychologist. 

The Court had no hesitation in awarding her both the damages she claimed in full – a precedent-setting R3.55m – and legal costs against the perpetrators on the punitive attorney and client scale.

But that’s not all – criminal liability could loom

The victim in this case had obtained a protection order against her tormentors. A breach of this could expose them to sentences of 5 years’ imprisonment if she decided to pursue the matter. 

The husband and wife could also face serious criminal charges under the Films and Publications Amendment Act, with penalties of up to a R300,000 fine and 4 years’ imprisonment “for knowingly distributing private sexual photographs and films in any medium, including the Internet and social media, without the prior consent of the individual”. Moreover, the Cybercrimes Act criminalises “the disclosure of data messages of intimate images where the intimate image violates or offends the sexual integrity or dignity of the person or amounts to sexual exploitation”. That Act provides for fines and up to 3 years’ imprisonment for offenders. 

None of this does anything to change the victim’s suffering – but knowing that the law is on her side might provide her some solace as she inches towards recovery. 

Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.

© LawDotNews

Sour Grapes? Don’t Make Accusations Unless They’re True

By | Delict and Civil Claims

“I am disgraced, impeached, and baffled here,
Pierced to the soul with slander’s venomed spear.”
(William Shakespeare)

Here’s another warning from our courts to think twice before publishing anything defamatory, even if you genuinely believe it to be true.

To escape liability, you must show that you fall under one or other of the legal defences available to anyone sued for defamation – as a recent High Court decision illustrates perfectly.

A R500m bribe and a restaurant dinner
  • A company director, in dispute with a government department over his company’s contract with it, went public with claims that a government minister was involved in soliciting a R500m bribe from him.
  • Critically, he had no actual proof of the truth of these allegations, which he said were made to him by two unnamed informants over a restaurant dinner.
  • Nonetheless, he spread these (hotly denied) claims far and wide – to his more than 12,000 Twitter (now “X”) followers, as well as to the listeners/viewers of a podcast, a radio interview, and two TV interviews.
Sued for R1m: “But I thought it was true”

The minister, outraged by these slanderous allegations, sued for R1m in damages.

  • The director countered that he had never intended to defame the minister, that his statements amounted to “fair comment” and that he reasonably believed that his two informants were telling the truth.
  • The Court was unconvinced, finding both that the statements were defamatory and that the director had made them with the necessary “intent to injure”, having taken no steps to verify the information given to him.
  • Secondly, held the Court, the director could not rely on the “fair comment” defence, both because his allegations were statements of fact rather than “comment”, and because he spread them “with reckless indifference as to whether they were actually true.”
  • Finally, the defence of “truth and public interest” requires that you prove both that a statement is “substantially true” and that it is published in the public interest. For the purposes of this defence, belief that the statement is true isn’t enough – it must actually be true. In this case, the director had relied on hearsay statements and had no proof to substantiate them.
  • With no proof of the allegations, the Court concluded that the minister was “a victim of a vicious assault on his dignity”, and the director “in order to safeguard his commercial interests, [had] thrown unsubstantiated accusations widely, to put pressure on the government, to accede to his demands”.
Prove it’s true, or pay up

The outcome:

  • The allegations were found to be both defamatory and false.
  • The director’s publication of them was unlawful.
  • He is liable to pay damages (with the amount to be paid, and the question of a public apology, to be determined after hearing evidence).
  • He is interdicted from repeating the allegations, directly or by implication. Breach that one and he could find himself jailed for contempt of court!
  • He must pay costs on the punitive attorney and client scale.

Disclaimer: The information provided herein should not be used or relied on as 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 professional adviser for specific and detailed advice.

© LawDotNews

The Pothole Plague – Claiming Damages

By | Delict and Civil Claims

“If cars are required to be roadworthy, shouldn’t roads be required to be car-worthy?” (Online meme)

If you fall victim to a pothole-infested road, don’t hesitate to sue for your losses. A recent High Court victory for a motorist claiming R8.6m in damages confirms yet again that those charged with maintaining our roads can be made to pay for failing to do so.

R8.6m claimed for a pothole crash
  • A motorist hit a pothole on a gravel road, lost control, and hit a tree. Severe injuries landed him in the ICU with no memory of the crash, and he claimed R8.6m from a provincial department of Public Works and Roads for past and future medical expenses, past and future loss of earnings and general damages.
  • His case was that the department’s negligence was the sole cause of his accident. He was, he said, a careful driver unfamiliar with the road in question. As he had no recollection of the accident, the Court relied on expert testimony that the vehicle and tyres were in good condition and his speed was probably about 80kph, whilst the road had numerous potholes and no signs warning of hazards or speed limits despite it being a road notorious for accidents.
  • The department flatly denied any liability and said there were no potholes in the road. Alternatively, it claimed that the accident was caused solely by the driver’s negligence, alternatively that he was contributorily negligent for failing to keep a proper lookout, driving at an excessive speed, and failing to avoid the accident when he could have done so.
  • On the facts the Court held the department 100% liable for whatever damages are proved or agreed. The driver, said the Court, had proved that the department had a duty of care to him, his injuries resulted from its breach of that duty, and it had a legal duty to take reasonable steps to prevent harm. It was negligent in not maintaining the road and in not keeping it in a constant state of repair.
  • On the other side of the coin, the department had not proved any contributory negligence on the part of the motorist – it alone was to blame.
Drivers – your duty to keep a proper lookout

None of that of course means that you will automatically be able to recover for vehicle damage or injury caused by a pothole. As our courts have put it: “A driver of a motor vehicle is obliged to maintain a proper look-out. He (or she) must pay attention to what is happening around him; but most important of all, he must as far as possible keep his eyes on the road …”.

That boils down to simply taking common-sense safety precautions – being aware of the general condition of the road, keeping a proper lookout at all times (a particularly sharp lookout when visibility is poor), travelling carefully and at a reasonable speed, paying attention to road hazard signs and speed limits, keeping your vehicle safe and roadworthy.

All are factors that a court will take into account if you end up in a legal fight, and if you are shown not to have complied with any one of them you risk either losing your claim in total, or having your claim apportioned for contributory negligence.

Disclaimer: The information provided herein should not be used or relied on as 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 professional adviser for specific and detailed advice.

© LawDotNews

Suing for a Supermarket “Slip ‘n Trip” – What Must You Prove?

By | Delict and Civil Claims

“The path is smooth that leadeth on to danger” (William Shakespeare)

Tripping over aisle blockages or slipping on floors made slick by spillages can happen in even the best-managed supermarkets, and injured shoppers regularly turn to our courts to claim damages from shopkeepers and building owners.

It’s no surprise therefore that this sort of claim has its own (informal) name – the “slip ‘n trip” case. A recent High Court judgment provides some clarity on what you will need to prove should you be one of the unfortunate shoppers who are injured in this way.

A shopper slips, and sues
  • A shopper slipped on an unidentified spillage, injuring herself and needing hospitalisation and further treatment for unspecified orthopaedic injuries.
  • Supermarket employees initially undertook to cover her medical expenses but later the supermarket denied liability.
  • It admitted that it had a “general duty of care to customers visiting its store to ensure that it afforded them a safe environment within in which to shop”, but claimed the shopper’s fall was “due to her sole negligence in that she failed to keep a proper lookout, failed to take reasonable steps to prevent her fall and failed to avoid injury to herself.” In the alternative it alleged contributory negligence on her part. It also sought to blame its cleaning service contractors and/or an independent merchandiser who had been working in the aisle in question.
  • The shopper took her claim for damages to the High Court, which confirmed that what you will have to prove is that the shop –
    • Should have foreseen the reasonable possibility of its conduct causing your injury and monetary loss; and
    • Should have taken reasonable steps to avoid that loss; and
    • Didn’t do so.
  • The Court held that, on the evidence presented, the shopper had proved that “she took proper care for her own safety on the morning in question. The fact that she may have moved down aisle 5 at more than a leisurely dawdle did not occasion her fall: she did not slip or trip because of haste or inattention but because she stepped in some spillage of unknown origin.” (i.e., you need to prove you weren’t negligent)
  • And even if the spillage was a small one (supposedly the size of a R2 coin in this case) “it really matters not what the extent thereof was as its mere presence on the supermarket floor presented a risk to any unassuming shopper, who would be expected to spend her morning looking at the merchandise on the shelves and not peering down at the floor ahead of her.” (i.e., keeping a proper lookout doesn’t necessarily mean peering down at the floor ahead of you all the time)
  • In principle, once a shopper has “testified to the circumstances in which he fell, and the apparent cause of the fall, and has shown that he was taking proper care for his own safety, he has ordinarily done as much as it is possible to do to prove that the cause of the fall was negligence on the part of the [supermarket] who, as a matter of law, has the duty to take reasonable steps to keep his premises reasonably safe at all times when members of the public may be using them.
  • The shopper in this case had done all that, raising a rebuttable presumption of negligence by the supermarket so that, in the absence of an explanation from it, it was inferred that a negligent failure on its part to perform its duty must have been the cause of the fall. In this case it provided no evidence of how long the spillage had been on the floor or how long it was reasonably necessary for it to discover the spillage and clean it up. (i.e., once you prove what happened and that you took proper care for your own safety, it’s for the supermarket to prove that it wasn’t negligent)
  • The shopper is entitled to whatever level of damages she can prove.

Disclaimer: The information provided herein should not be used or relied on as 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 professional adviser for specific and detailed advice.

© LawDotNews

How to Stop Someone Damaging Your Good Name on Social Media

By | Delict and Civil Claims, Litigation

“He that filches from me my good name robs me of that which not enriches him and makes me poor indeed.” (Shakespeare)

As our lives move increasingly online, more and more of us will be subjected to the distress and damage of online attacks. Whether they are aimed at hurting us personally or at harming our businesses, they can take a substantial toll both materially and psychologically.

What can you do if you (or your business) falls victim? The good news is that in appropriate cases our courts will come to your rescue robustly and with speed, as evidenced by a recent High Court decision.

Your legal protections

Before we discuss the facts and outcome of that case, let’s make a general note that as a victim of any defamation you have a choice of legal weapons available to you. A claim for damages can be highly effective but it is, as the Court here put it, a backward-looking remedy essentially suitable for redressing past defamation.

Where on the other hand you are being subjected to, or fear being subjected to, ongoing defamatory attacks, ask your lawyer about applying urgently for an interdict. As in the case we discuss below, it can provide powerful, quick and effective protection.

You could also try laying a criminal charge of crimen injuria (criminal impairment of another’s dignity) but perhaps don’t hold your breath on that one.


A property developer’s reputation vindicated, and an extortion attempt punished
  • A company undertaking a large property development employed a roofing contractor which, after a fall out, started publishing defamatory statements about the developer on a local WhatsApp group and Facebook.
  • Amongst other things the posts accused the developer of acting unlawfully for financial gain, creating a potentially life-threatening situation, dishonesty, not carrying out necessary remedial actions, defrauding the Municipality, exploiting elderly clients, selling uninspected and potentially dangerous homes, not following proper safety standards – the list goes on.
  • The Court found no truth at all in any of these allegations and rejected for lack of proof the roofing contractor’s defence of “truth and the public benefit”.
  • Particularly damningly perhaps, it held that the contractor had tried to extort payment of its outstanding invoices in return for its silence.
  • The Court accordingly interdicted the contractor from continuing with the defamatory posts (online or otherwise), directed it to publish a copy of the court order on the online channels in question, and ordered it to pay legal costs on the punitive attorney and client scale.

The end result, which is a vindication of the developer’s position and an expensive lesson in the law for the roofing contractor, will give much heart to other victims of this sort of harassment.

Bottom line for victims – don’t take social media defamation lying down!

Disclaimer: The information provided herein should not be used or relied on as 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 professional adviser for specific and detailed advice.

© LawDotNews

“Bad Dog!” Why a Husky’s Owner Must Pay R100,000 Damages

By | Delict and Civil Claims

“…in general, ownership of an animal should carry with it strict liability for any harm done by the animal.” (Extract from judgment below)

Owning a pet comes with both joys and responsibilities, and a recent High Court award of almost R100,000 in damages to the victim of a dog attack is yet another reminder of the potential dangers of animal ownership and the legal responsibilities that come with it.

A social invite goes horribly wrong
  • 17 years old at the time, a young woman was invited to a social gathering at a private house. As the gate was opened to let her in, two dogs came running out and the one (a large Siberian Husky) ran towards her and without warning launched itself towards her throat. She raised her arms to ward off the attack which resulted in both her forearms being bitten.
  • Rushed to hospital, she was operated on by a plastic surgeon and has been left (nine years on) with scarring, physical disability and pain requiring physiotherapy, as well as counselling for psychological trauma in the form of PTSD (post-traumatic stress disorder).
  • The dog’s owner suggested in court papers that when the dog jumped up to greet the victim, she had provoked it and acted negligently by retaliating, hitting it and pulling its hair. She was, he said, injured when the dog fended off her “unwarranted attack”. However, as the owner led no evidence to support this (the onus being on him to do so) the Court accepted that there was no provocation or negligence from the victim’s side.
  • On the basis of our law’s general legal principle that “…in general, ownership of an animal should carry with it strict liability for any harm done by the animal”, the Court ordered the dog’s owner to pay the victim a total of just under R100,000 in damages.
The danger for pet owners – liability without fault

To understand that outcome, we need to go back to an old Roman law remedy, the pauperian action (“actio de pauperie”).

Under that action, which is still very much part of our modern law, the victim does not need to prove that the animal’s owner was negligent in any way. If your dog (or any other domesticated animal) causes someone else harm you are held liable on a “no fault” or “strict liability” basis.

There are a few limited exceptions to this rule, so if for example the dog’s owner in this case had been able to show that the victim had provoked the attack, she would no longer have been able to rely on the “no fault” concept. She would then have had to prove negligence and fault on the dog owner’s part – a much harder task.

But the general risk for animal owners remains this – you can be held liable for damage caused by your animals without the slightest fault on your part.

Dog Owners – how to manage the risks

So let’s end off with a few practical tips on how to protect your pet, ensure the safety of others, and reduce your risk of legal liability –

  1. Understand the risk: You could be held legally responsible for any harm caused by your pet, including injuries to people and other animals, property damage, and emotional distress suffered by the victims.
  2. Check your insurance cover: Make sure you have in place Public Liability insurance that will cover you for any claim of this nature.
  3. Socialise and train your dog: Proper socialisation and training are vital to prevent aggressive behavior in dogs. Ensure that your dog interacts well with people and other animals.
  4. Supervision and restraint: Keep your dogs supervised and under control at all times. Follow leash laws in public spaces or whenever there is any risk of harm.
  5. Watch for the warning signs: Be aware of any signs or history of aggression or fear in your dog, and if necessary, seek professional help from a qualified animal behaviorist or trainer.
  6. Take legal advice: If you are ever involved in a dog-related incident, consult immediately with your lawyer to assess your case, explain your legal rights, and guide you through the necessary legal processes.

Disclaimer: The information provided herein should not be used or relied on as 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 professional adviser for specific and detailed advice.

© LawDotNews

Can You Claim Damages After Hitting a Pothole?

By | Delict and Civil Claims

“The American Automobile Association estimated in the five years prior to 2016 that 16 million drivers in the United States have suffered damage from potholes to their vehicle including tire punctures, bent wheels, and damaged suspensions with a cost of $3 billion a year.” (Wikipedia)

Pothole problems are by no means exclusive to South Africa, but we certainly do seem to have more than our fair share of them.

As a recent High Court decision illustrates, if you suffer any form of loss as a result of a pothole, hold whoever is responsible to account. Sue for your damages!

Injured motorcyclist awarded damages
  • Descending a pass on a provincial road with a group of fellow bikers, a motorcyclist leaned into a corner on a sharp bend then hit and went over a pothole. He lost control of the bike which then skidded across the road surface, injuring his shoulder and arm and damaging his clothing and motorbike.
  • He was taken by ambulance to hospital, underwent surgery, and although discharged after four days, still two years later is taking painkillers and undergoing physiotherapy for ongoing pain and restricted use of his shoulder and arm.
  • An expert confirmed that he had had no opportunity to avoid the pothole and thus the accident. It was also clear that an attempt had been made to repair the pothole.
  • He had suffered permanent injuries which “have left him greatly compromised and vulnerable.”
  • He sued the Province for damages, and was no doubt pleasantly surprised when the MEC made no effort to defend the action. However, he still had to prove his claim…
Proving negligence, and loss

The Court confirmed that the onus is on a claimant to prove negligence on the part of the local authority, even when, as in this case, the MEC had taken no steps to defend the claim and it was uncontested.

Finding from the uncontradicted evidence of the biker and his expert witnesses that the MEC was solely negligent for the accident in failing to live up to the responsibility “of building, maintaining road infrastructure and putting up road signs cautioning road users of the dangers of potholes”, the Court held him liable for the claimant’s proved damages.

The Court awarded the claimant damages of R850,000 in respect only of those aspects of his claim that he had led evidence to support (future medical treatment and general damages). That figure could increase – although he had failed to produce evidence in support of his further claims (for loss of earnings and damage to property), he can still re-institute action for them.

So, do you have a claim?

You quite possibly do have a claim for any losses you suffer after hitting a pothole. Considering our courts’ attitude to the responsibility of local authorities for road maintenance, proving negligence may not be that hard. Line up also evidence to support all aspects of your claim.

Disclaimer: The information provided herein should not be used or relied on as 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 professional adviser for specific and detailed advice.

© LawDotNews

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