“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.
“Diplomats operate through deadlock, which is the way by which two sides can test each other’s determination.” (Henry Kissinger)
Running a business with a partner can work brilliantly – until it doesn’t. When co-directors or shareholders fall out and can no longer see eye to eye, the company can grind to a halt, meaning everyone loses.
If the “deadlock” is just the two sides playing diplomat by testing each other’s determination to fight to the finish, there’s a chance they’ll negotiate a settlement before the company actually fails.
But if you find yourself in a fatal stalemate, you should think of cutting your losses and putting your company out of its misery altogether. A recent High Court decision provides an excellent example of how you can do just that.
The director disputes that destroyed a profitable business
The players in this unhappy saga were the 50/50 shareholders, and co-directors, of a small business importing tents from China.
At first, their arrangement clearly worked well. But as time passed, they fell out badly over disputes relating to the terms on which their own businesses (one in Kenya, the other in South Africa) could buy tents from the importer.
Their own attempts to resolve things failed, and the seriousness of their quarrelling led to allegations of fraud and of unpaid debts, together with threats to have one director declared a delinquent director and attempts to bring a third director into play.
A buyout attempt having failed, one of the directors applied for liquidation of the company. The other director’s fierce opposition rested on him asking for everything to be put on hold while he launched alternative litigation against his opponent.
But can you liquidate a solvent company?
Normally, only insolvent companies face liquidation, but the Companies Act allows courts discretion to order the winding up of a solvent company (a company able to pay its debts) in a range of circumstances. Three of those grounds for liquidation are relevant here:
Past the point of no return
In granting the liquidation order, the Court found that the relationship between the directors had broken down irretrievably, and the resulting deadlock had reached the point of no return. The shareholders would be unable to break the deadlock and that had resulted in irreparable injury to the company. Its business could not be conducted for the advantage of shareholders.
The Court went further, holding that in any event it was just and equitable to order winding up. The mutual trust and confidence between the shareholders had been destroyed, there had been a complete breakdown of relationship between the directors and shareholders, and the company’s “substratum” (fundamental reason for existence) had disappeared.
Prevention is better than cure
When you co-own a company, especially if it’s split 50/50, stalemate is an ever-present risk. If this happens and you can’t agree on how to buy each other out or on how to break the deadlock, you could lose the entire business.
Prevention being better than cure, good planning upfront is essential. So, if you run or plan to start a business with partners, make sure that your shareholders’ agreement and other documentation includes clear and workable mechanisms for avoiding dispute, and for breaking deadlock if it occurs.
Common solutions are:
These safeguards are unfortunately no magic bullet, as witnessed by the inability of the directors/shareholders in this case to reach any form of agreement. This despite having deadlock-breaking mechanisms in their shareholders agreement, and despite their attempts at negotiation and mediation.
But safeguards are a lot better than nothing, and they will most definitely reduce the risk of you both ending up in court, paying legal fees and being grilled in witness boxes while your business dies. If that happens, everyone loses.
Bottom line? Disputes happen, but they don’t have to kill your business. Speak to us if you’d like advice on your company’s structure, and for help in drafting a shareholders’ agreement that protects you both if things turn sour.
“You can’t go back and change the beginning, but you can start where you are and change the ending.” (C.S. Lewis)
Divorce is traumatic, to the extent that it’s widely considered to be the second most stressful life event (behind only the death of a spouse, and ahead of marital separation and going to jail!).
But if you’ve come to the conclusion that your marriage is so unhappy or toxic that you have no alternative but to put an end to it, you’ll need to know how to go about obtaining a divorce, and what your legal rights are.
The whole process can feel overwhelming, but it needn’t be. Here’s a clear, simplified overview, followed by a Q & A section to address some of the concerns and queries you may be grappling with.
9 common questions answered
Here are some of the most commonly asked questions. Let us know if you have any others!
Talk to us if you’re considering divorce – or even if you just want to understand your options.
“Time shall unfold what plighted cunning hides.” (William Shakespeare, in King Lear)
A recent High Court judgment confirms, yet again, that if a property seller knows about a hidden defect and keeps it quiet, no exemption clause will save them.
A loud roar, rolling flames, and a dream home turns to ashes
A family thought they were moving into a solid, well-built family home (a dual-level freestanding residential townhouse). They had no idea a hidden hazard was buried in the walls above their fireplace.
They found out on a cold and rainy Free State night when they lit a winter fire, as they had done many times before. This time they were in for a shock. All went well until, watching television some hours later, they heard a loud crack like a gunshot…
When the man of the house looked up the staircase, he noticed a glow. He found that the top floor spare room was on fire, with the curtains and bed already alight. A loud roar and flames rolling under the cornice caused him to retreat. He shouted to his wife to gather their pets and call for help, and they escaped outside to await the arrival of the fire department.
The family got out unscathed. But the extensive damage caused by the fire and the collapse of the roof rendered the unit uninhabitable.
The hidden fire hazard
Unbeknownst to the buyers, during construction, a roof truss beam had been built through the chimney brickwork. Building regulations read with the applicable code of practice forbid this, because any timber near a flue is a fire waiting to happen: “Combustible material such as a timber floor joist, trimmer or roof truss shall not be built within 200mm of the inside of a chimney; and … No flue pipe shall be designed and installed in such a manner that it will cause a fire hazard to any adjacent material.”
Faced with a devastated home and huge repair costs, the buyers took the developers, who had both built and sold the house, to the High Court, where a forensic fire expert explained that the origin of the fire could be traced to the beam in question. Over time, repeated heat exposure had dried out and charred the timber. On the fateful evening, it finally caught alight, and the fire spread to the polystyrene ceiling cornices, which melted and dropped flaming debris onto bedding in the upstairs room directly above the fireplace.
Voetstoots? Forget it!
The developers argued they weren’t liable because the sale agreement contained a standard exemption (“voetstoots”) clause and could not therefore be held to account for a hidden defect such as this one.
In short, the developer’s position was: “You bought the house as it stood, defects and all, whether you could see them or not.” They also pointed out that the buyers had signed an acknowledgement that they’d inspected the house.
But the Court was clear: “It is the duty of the seller to deliver the thing sold to the buyer without any defects.” Voetstoots clauses don’t give a seller free rein to hide behind the contract if there’s fraud or dishonesty:
Bottom line? By failing to disclose a defect that was dangerous and unlawful, the developer crossed the line from simple non-disclosure to fraudulent concealment.
Here’s how to avoid disaster and dispute
The bottom line
Hidden defects don’t stay hidden forever, no matter how cleverly concealed. Sooner or later, as Shakespeare put it, “time shall unfold what plighted cunning hides.”
If you find yourself facing the fallout of a seller’s dishonesty, we’ll help you protect your rights and recover what you’ve lost.
“I charge you by the law.” (William Shakespeare in The Merchant of Venice)
Victims of crime are entitled to see the perpetrators brought to justice. Feeling that the justice system has failed you can cause significant psychological harm and feelings of victimisation.
So, what happens if you believe that you are the victim of a crime, which you duly report to the police – only to be told that the NPA (National Prosecuting Authority) has declined to prosecute?
You could of course console yourself with the thought that “well, at least I tried” and walk away unfazed. But if you feel strongly enough about it, you are not without legal remedy – in appropriate cases you could be advised to go the private prosecution route.
A significant SCA (Supreme Court of Appeal) judgment last year provides an excellent example of just such a case.
Neighbours at war in an upmarket suburb
The scene here is Kloof Road in Cape Town’s Bantry Bay, renowned for its prime location on the Atlantic Seaboard, luxurious houses, and panoramic sea views.
The protagonists are next-door neighbours, whose acrimonious relationship and long history of disputes was founded in the one owner’s renovations, and the other’s strenuous objections to them. Who will eventually win that particular battle remains for another court to determine, but in the course of these disputes the one owner, a senior attorney, accessed his neighbour’s confidential credit records using a colleague’s login details.
This tactic backfired when the neighbour laid criminal charges against her adversary, saying that he had unlawfully and covertly accessed her personal and private information without the required authority or consent. She later added charges of fraud and defeating or obstructing the administration of justice, alleging that during the consequent investigation he had variously and falsely claimed firstly to have not accessed her data, then to have had her consent, then to have acted as her attorney, and lastly to have accessed her records inadvertently.
The media’s reporting of this high-profile spat created what the Court later described as a “public spectacle”, and the trial courts will have to wade through a web of hotly-contested and conflicting evidence in their search for the truth.
But for now, our interest lies in the fact that the NPA declined to prosecute on any of these charges. Undeterred, the neighbour initiated a private prosecution, a move hotly contested by her opponent all the way up to the SCA.
What must you prove to launch a private prosecution?
The SCA, in ultimately allowing the neighbour to proceed, set out our law on the matter.
The starting point is always the NPA issuing a certificate nolle prosequi (a fancy Latin term meaning simply that the State declines to prosecute), for it is that certificate which opens the door to you to have a go at it yourself. As a side note here, legislation specific to the SPCA, SARS and a few other specialised entities allows them to prosecute specified matters without a nolle prosequi certificate – but the rest of us need one.
Once you’ve got your nolle prosequi certificate you must prove that:
In deciding whether or not to grant your application, the court will also consider whether private prosecution would offend public policy. If you are shown to be acting maliciously, vindictively, vexatiously, or without foundation, your application will fail.
Essentially, the Court performs a balancing act between your right to have your dispute “resolved by application of the law and decided in a fair public hearing before a court”, and the accused person’s “right not to be subjected to unfounded and vexatious private prosecution.”
In this case, the Court allowed the private prosecution to continue, commenting that the accused would now have the opportunity to vindicate his innocence at trial.
Think before you leap
Before you charge blithely down this route, bear in mind that private prosecution carries, in the Court’s words, “enormous financial risk”. So be very confident of your prospects of success and bear in mind that:
Considering a private prosecution? We’ll help you weigh up the pros and cons.
“When cognitive capacities are the focus, the 70s are the new 50s.” (IMF)
Fake news articles suggesting that South Africa was implementing a new standard retirement age policy, supposedly from 30 May this year, recently went viral on social media. Convincingly structured to look realistic (AI’s dark hand there?), the articles suggested that 65 is the new universal standard retirement age for all employees across all sectors.
Complete hogwash.
What the law actually says
It’s an important topic, with increasing numbers of employees wanting to (or needing to) work into their 70s. A recent Labour Court ruling showing those principles in action is well worth taking note of.
The plumber forced to retire at 60
An artisan plumber with 12 years of service had his employment terminated when he turned 60.
He asked the Labour Court to declare his dismissal automatically unfair as other employees had been allowed to work until they were 65. What’s more, he denied ever agreeing to retire at 60.
The employer countered that it had a two-tier retirement policy which obliged employees with more physically demanding jobs (site workers such as artisan plumbers) to retire at 60 whilst supervisory and administrative personnel (such as foremen and office staff) only had to retire at 65.
On the facts, the Court declared the dismissal to have been fair, finding that the evidence pointed to the employee being subject to a retirement age of 60 because:
Bottom line: the employee hadn’t proved that his retirement at the applicable retirement age of 60 was an automatically unfair dismissal, and the Court held his dismissal to be fair.
How to ensure that an age-related dismissal is fair
First prize is to specify an agreed retirement age in all your employment contracts, ideally from day one. If you want to add a retirement clause later, or to change anything about an existing clause, be sure to do so by negotiation and agreement, not unilaterally. And be sure to keep the original, fully-signed contract safe and accessible (unlike the employer in this case who had to rely on a scan of just the annexure to the contract).
Alternatively, be ready to prove that there is a “normal or agreed retirement age” for employees employed in the same capacity.
The dismissal must be genuinely based on the employee having reached retirement age and cannot, for example, be a disguised retrenchment or a dismissal for some other reason.
It’s crucial that you follow a fair process. Open communication, reasonable notice, and applying the rules consistently to all employees could be critical here.
Every case will be different, so ask us for advice specific to your situation.
“In Africa there is a concept known as ‘ubuntu’ – the profound sense that we are human only through the humanity of others.” (Nelson Mandela)
International Nelson Mandela Day is celebrated worldwide on 18 July every year, but in South Africa the whole of July is Mandela Month.
What better time to talk about the concept of “ubuntu”, which emphasises our interconnectedness and interdependence, and embraces values like fairness, compassion, respect and dignity?
How does ubuntu influence your legal rights?
Our courts have often considered, and sometimes applied, the principles of ubuntu in a wide variety of legal contexts. The “it’s unfair and unjust!” defence pops up regularly (often when discussing whether something is “contrary to public policy”) in disputes of all kinds. Asset sales, property sales, leases, neighbours’ disputes, evictions, workplace litigation, franchise agreements, criminal sentencing cases, civil claims, defamation claims, trust disputes and so on – the list truly is endless.
For example, in 2023 the High Court refused to order the eviction of a group of tenants, despite the fact that they were in breach of their leases, on the basis that the eviction would render them homeless and thus the application for eviction was “completely devoid of any empathy for the [tenants’] living conditions. There is,” the court stressed, “in fact, no ubuntu at all.”
When is a contract unenforceable for being contrary to ubuntu?
When it comes to contracts, we have wide freedom to contract as we please, and people entering into agreements need to know with reasonable certainty that the law will help them enforce compliance with those agreements. Those principles have led our courts to confirm that the fundamental principle of “agreements must be honoured” or “you are bound by what you agree to” (“pacta sunt servanda” in lawyer speak) still underpins our law.
As the Constitutional Court has put it, “a court may not refuse to enforce contractual terms on the basis that the enforcement would, in its subjective view, be unfair, unreasonable or unduly harsh … It is only where a contractual term, or its enforcement, is so unfair, unreasonable or unjust that it is contrary to public policy that a court may refuse to enforce it. (Emphasis added.)
In practical terms, this means that as a general rule our courts will enforce agreements entered into freely and voluntarily. But they can still be persuaded to hold a contract void and unenforceable if satisfied that it is against public policy, a concept that is measured objectively and informed by constitutional values such as ubuntu. A good example is a 2013 High Court refusal to enforce an acceleration clause in a loan agreement because of its draconian implications – it would have allowed the lender to call up in full a debt of R7.6m after the borrower had failed, through a miscalculation, to pay just R86,57 in default interest.
Every case will be decided on its own facts and merits. That inevitably opens up grey areas, which in turn provide fertile ground for uncertainty, dispute, and litigation. So, although in practice our courts lean strongly in favour of enforcing agreements as they stand, rather be safe than sorry – the more closely your contracts of all types adhere to principles of fairness and justice, the less likely you are to see them challenged in court. (And the better you will sleep at night.)
Speak to us if you’re uncertain whether or not your contracts and other documentation will pass muster if measured against ubuntu.
“I love deadlines. I love the whooshing noise they make as they go by.” (Douglas Adams in The Salmon of Doubt)
Contracts often contain suspensive conditions, a common example being the bond clause in a property sale agreement. The standard bond clause provides that the buyer must obtain a bond by a set deadline, and everyone’s rights and obligations under the agreement are suspended until the bond is granted. If the bond isn’t granted by the deadline, there is no sale.
In practice, the buyer often struggles to meet the set deadline and asks for an extension. If that happens to you, be sure to structure the extension correctly and to get it done and dusted before the deadline expires.
Parties often think “oops, we both missed the deadline, but no worries, we want the sale to succeed so all we need do is agree to revive the agreement.” But that’s a fatal mistake, because if a suspensive condition fails, the contract dies and all your attempts to bring it back to life – usually by way of an addendum or an extension of the time limit – are doomed to fail. You will need a brand new contract if both of you still want to proceed.
Let’s illustrate this point with a Supreme Court of Appeal (SCA) decision in which the parties attempted to “revive” their agreement after the bond clause had already failed.
A deadline passes and a R5m house sale dies
In February 2020 (i.e. shortly before the economic shock of the pandemic), the buyers of a R5.15m house paid the agreed deposit on time but couldn’t raise the required bond of R4.95m before the deadline set out in the bond clause. A first addendum to the sale gave them another few days, and that addendum was valid because both parties signed it before the deadline expired.
But then the parties made a fatal mistake. Only after the extended deadline had whooshed merrily past did they sign a second addendum, agreeing to extend the date again and thus, they both believed, saving the sale.
The buyers now did more than just get a bond – they paid R1.95m in cash and provided bank guarantees for the rest. And they did all that before the second deadline expired, so all seemed well with the sale. Until Covid struck. That left the buyers with financial problems, so they tried to exit the sale and get their money back. “No deal,” said the seller, “the agreement is still valid and enforceable, you have to take transfer.”
Off to court went the buyers, eventually ending up in the SCA, which held the sale to be void and ordered the seller to refund them their R1.95m. The Court couldn’t have been clearer in ruling that when a suspensive condition (like a bond clause) isn’t fulfilled, the whole contract becomes unenforceable. This despite the fact that both buyer and seller clearly intended to proceed with the sale and thought they were validly reviving it with their second addendum.
Our law is clear – when a sale agreement has already lapsed, there is nothing you can do to revive it. Only a new agreement could have saved the sale, and the Court, on the facts, rejected the seller’s attempts to convince it that the second addendum was actually a new agreement. It was, said the Court, just an invalid attempt to revive a dead contract.
Here’s what to do to keep that sale alive and well
Every situation will be unique, but at the very least follow these three principles.
As always, sign nothing until we’ve checked it for you!
You will most often come across trust accounts in your dealings with attorneys and estate agents, who must use them to hold funds on behalf of clients and other third parties. The funds in a trust account must be kept in a registered South African bank and are subject to yearly audit. They do not belong to the professional and must by law be kept entirely separate from the professional’s own business or personal funds.
If you pay over money to an attorney or estate agent to be held on your behalf, check that their Fidelity Fund Certificate (FFC) is current and ensure that the money is paid into their trust account, not a business or personal account.
“An ounce of prevention is worth a pound of bandages and adhesive tape.” (Groucho Marx)
It’s a perennial topic of dispute in our courts. A couple lives together, sharing the same roof and everything else in perfect happiness and harmony.
Until it all goes south. Then the gloves come off and, particularly if our erstwhile couple end up dragging each other through the courts, everyone takes a beating. Bloodied, battered and bandaged, they’re going to wish they’d implemented Groucho’s “ounce of prevention” in the first place.
We’ll explain how to keep things amicable. But before we do, let’s consider the case of the life partner who failed to persuade a court to give him a cut of his ex-partner’s house.
Bearing in mind that our law recognises no such concept as “common law marriage” (a pervasive and dangerous myth that just won’t go away), many an ex-life partner has fallen back on trying to prove that the couple had formed a “universal partnership”. Depending on the type and form of the partnership they claim existed, that would give them a cut of the assets of their relationship. But it isn’t easy to prove.
The facts in a recent Limpopo High Court fight illustrate this point. A couple in a romantic relationship had lived in the woman’s house with her daughter. Each of them contributed equally towards household expenses. They decided to extend the house, and the man contributed R416k out of his pension payout for this purpose.
When their relationship broke down after five years, the man tried to convince the Court that a universal partnership had been formed between them, and he asked for a liquidator to be appointed to divide the partnership’s assets equally between the partners.
The Court’s thorough analysis of the law relating to universal partnerships (there are actually two types, both with fancy Latin names) will be of major interest to lawyers. But what really matters most to you on a practical level is that:
In the end, the applicant failed to prove that the relationship had been anything more than cohabitation, so he leaves with nothing (other than, of course, a large legal bill).
All that litigation and unhappiness could have been prevented had the parties, when they first decided to live together, entered into a cohabitation agreement.
Don’t make the same mistake, and be sure to draw up a document covering, at the very least, the following aspects of your relationship as they apply to you:
Setting out an agreement doesn’t mean you’re planning for failure! In fact, you’re increasing your chances of success. Break-ups are a fact of life, and even if you do grow old and wrinkly together, your cohabitation agreement will still come into its own when one of you dies.
On that note, don’t forget to make or update your will (“Last Will and Testament”) at the same time. Both documents are essential, and the two must be compatible with each other, so make a big note to review/update both together.
Bottom line: you and your life partner should have a cohabitation agreement as well as wills. We’ll help you put all that together.