Louis Case Reports

PRACTICE – VIRTUAL COMMISSIONING

FirstRand Bank v Briedenhann [2022] 3690-2021 (ECG)

The bank claimed over R900,000 from Mr Briedenhann based on a loan agreement and mortgage bond after he fell into arrears with payments. The bank gave notice in terms of s 129(1) of the National Credit Act (NCA) but the defendant failed to respond and failed to avail himself of the remedies in the NCA. No notice of intention to defend was filed so the bank applied for default judgment. The court noted that the affidavit had been signed by the deponent utilizing an electronic signature and had been commissioned by way of virtual conference. The papers included an affidavit, also deposed to virtually, which set out averments which sought to establish compliance with the provisions of the Electronic Communication and Transaction (ECTA). The court asked counsel to submit argument in relation to the acceptance or recognition by a court of a virtual mode of administration of oath.

Goosen J discusses the covid pandemic and digital technologies; the digital signature system used by the bank; the Regulations Governing the Administration of an Oath or Affirmation in terms of the Justices of the Peace and Commissioners of Oaths Act; the meaning of “in the presence of”; the provisions of ECTA; substantial compliance with reg 3(1) regarding the deponent signing in the presence of the commissioner; and the case law, including the case of Knuttel NO v Bhana

The affidavits are admitted on the basis that they substantially comply with the provisions of the regulations. The defendant is ordered to pay to the plaintiff the sum of R928,138.42.

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FAMILY – SETTLEMENT AGREEMENTS

AVW v SVW [2022] 3118-2021 (WCC)

The couple were married in Mauritius in 2004, out of community of property with the inclusion of the accrual system, and they had one child. The husband instituted divorce proceedings in 2021. The defendant filed an application for leave to defend the divorce action after she had signed a settlement agreement in July 2021 (the consent paper) and after her former attorney had delivered a notice of withdrawal of defence. She contended that the settlement agreement did not make enough provision for their minor son, that she believes that the plaintiff had not disclosed the correct values of the assets held by various trusts, and that she waived her claim for personal maintenance whilst being unable to support herself and did not know what she was waiving. The plaintiff argued that subsections 7(1) and (2) of the Divorce Act 70 of 1979 do not afford the court an overriding discretion to go behind the terms of a settlement agreement.

De Wet AJ discusses the general principles of settlement agreements; that there is a concerning new trend where parties settle a divorce action by signing a settlement agreement with the assistance of their legal representatives only to thereafter, and before such agreement is made an order of court, decide that they no longer wish to be bound thereby; the cases of PL v YL and Rowe v Rowe; the Family Advocate and the best interests of the child; the waiver and ss 7(1) and (2) of the Act; and that a court has the statutory power and discretion to override any agreement, including a waiver, in respect of a maintenance claim (para [33]).

The court finds that settlement agreements in divorce matters are clearly distinguishable from settlements in other types of litigation. In the circumstances of this application a refusal to grant leave would have amounted to the court prohibiting the defendant from having access to the court and to place relevant evidence before it in order for the court to determine the manner in which its discretion should be exercised. The defendant was granted leave to defend.

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PAIA – PRIVILEGE v PUBLIC INTEREST

Media request – PwC report into Steinhoff affairs – Refusal of access on grounds of privilege – Public interest – Freedom of expression.

Tiso Blackstar Group v Steinhoff International [2022] 18706-2019 (WCC) at [31]-[70]

During December 2017 it became known that Deloitte Accountants refused to sign off on Steinhoff’s annual financial statements because of some alleged accounting irregularities. Later that month, Steinhoff’s CEO, Mr Markus Jooste tendered his resignation. PricewaterhouseCoopers (PwC) performed an independent investigation into the irregularities. The events caused a sharp decline in Steinhoff’s share price, the loss estimated in the region of 98 % of its value, resulting in investors losing in excess of R200 billion. Tiso Blackstar requested access to the PwC report in terms of s 53(1) of PAIA on the grounds that it was a member of the media that investigates and exposes corporate scandals and is responsible for providing the public with accurate information in the public interest. Steinhoff refused the first PAIA request on the grounds that the PwC report was legally privileged as contemplated in s 67 of PAIA. A second request was also refused and the applicants, all related to the media, approach the court in terms of s 78 of PAIA seeking an order directing Steinhoff to supply Tiso Blackstar and amaBhungane with a copy of the PwC report.

Nuku J discusses whether access to the PwC report can be refused on the grounds of privilege; s 70(b) of PAIA and that a request must be granted if the public interest in the disclosure outweighs the harm contemplated in the provisions; whether the report is severable and certain sections can be disclosed; the right of access to records of private bodies; and Steinhoff’s contentions around the purpose of the PwC report.

At para [39] the court expresses some difficulty in following Steinhoff’s argument that its refusal to provide the PwC report does not limit the applicant’s right to freedom of expression. Access to information is crucial to accurate reporting and thus to imparting accurate information to the public. 

The decisions of Steinhoff refusing the PAIA requests are set aside. Steinhoff is directed to supply Tiso Blackstar and amaBhungane each with a copy of the PwC report within ten days of the order.

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ABOUT THE EDITOR

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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