Spartan Caselaw

LexisNexis South Africa v Minister of Justice [2024] ZAGPPHC 446

CIVIL PROCEDURE – Commissioner of oaths – Remote commissioning

Applicant seeking broad interpretation of “in the presence of” – Seeking administration of oath by live electronic communication – Discussion of Firstrand Bank v Briedenhann – Applicant’s argument that the object of the Act and Regulations can be achieved by virtual means – To find for applicant would require court to ignore clear meaning of words in Regulations – Application dismissed – Justices of the Peace and Commissioners of Oaths Act 16 of 1963 – Regulations Governing the Administering of an Oath or Affirmation, reg 3 – Electronic Communications and Transactions Act 25 of 2002, s 13.

Background: The astonishing technological advances of the past few years, especially in the field of communications, have changed the face of society. One is able to communicate by cell phone from some of the most remote places on earth, and one is able to hold face-to-face meetings through the internet. Many companies no longer maintain large offices, preferring to conduct business by electronic media. The Covid-19 pandemic, which resulted in the world of commerce virtually coming to a halt, accelerated the development of alternative means of communication. The legal profession was no exception to these developments. The use of CaseLines to access court files digitally, and the use of Teams or Zoom links, allowed courts to sit virtually, and to continue working without interruption. These technological developments would have seemed far-fetched and science fiction a brief few years ago. Legislation has not always kept abreast of technology. One piece of legislation which has not kept pace with technology is the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, which requires oaths to be administered to deponents whilst they are in the presence of a commissioner of oaths.

Application: This application came before the judge in the unopposed motion court. The applicant is a global publishing company which seeks an order in the following terms: That it be declared that the words “in the presence of” in Regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation, are to be broadly interpreted and shall include the administration of an oath or affirmation by means of live electronic communication, consisting of simultaneous audio­ and visual components; and that it be declared that Regulation 3 does not require the use of an advanced electronic signature as contemplated by section 13 of the Electronic Communications and Transactions Act 25 of 2002.

Discussion: The applicant says that the purpose of the Act and the Regulations is to ensure that the commissioner of oaths is able to view the deponent’s identity document in order to verify the deponent’s identity. The applicant says that if the deponent and the commissioner of oaths meet virtually, the commissioner of oaths can nevertheless ensure that the deponent understands the contents of the declaration, and that the deponent’s signature or mark, as well as the certification of the commissioner of oaths is appended to the declaration. The purpose of the Act can therefore be achieved even though the commissioner of oaths and the deponent may not be in each other’s physical presence, the applicant argues. In Firstrand Bank v Briedenhann [2022] ZAECQBHC 6 the bank stated that it has, in co-operation with LexisNexis, set up a LexisSign digital platform for the purpose of commissioning affidavits. The LexisSign platform is a “cloud” based software system used by the bank’s legal recoveries department.

Findings: Goosen J in Briedenhann wrote at para [25] that “The language of Regulation 3(1) when read in the context of the Regulations as a whole, suggest that the deponent is required to append their signature to the declaration in the physical presence or proximity of the commissioner. This accords with the concern for place, insofar as the exercise of the authority to administer the oath is concerned, as appears from the Act.” The court agrees with this passage. The wording of the Regulation does not allow for any other interpretation. Given the clear grammatical meaning of the words, Goosen J declined to ascribe the broad interpretation contended for by the plaintiff in that case. Applicant’s argument, that the object of the Act and the Regulations can be achieved by virtual means is tempting. After all, the commissioner can identify the deponent, confirm that the deponent is familiar with the contents of the affidavit, and the commissioner can observe the deponent signing the affidavit. The commissioner can append his signature electronically, thereby complying with the provisions of section 13(4) of the Electronic Communications and Transactions Act 25 of 2002. However, to find for the applicant would require the court to ignore the clear meaning of the words in the Regulations. In so doing the court would be crossing the divide between interpretation and legislation. It is not for a court to impose its view of what would be sensible or businesslike where the wording of the document is clear.

Order: The application is dismissed.

SWANEPOEL J

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Lazarus Motor Company v Robert [2024] ZAGPPHC 423

CONSUMER – Defective goods – Rust in motor vehicle – Brand new vehicle – Alleging vehicle usable despite rust defect

Not appropriate to disregard any defects found despite functionality or fulfilment of intended purpose – Rust spread extensively affecting metals – Less acceptable and unsafe – Rusting directly linked to definition of a defect – Repairing defect is appropriate remedy available to respondent – Appellant ordered to remove rust and repair vehicle – Consumer Protection Act 68 of 2008, s 55(2)(b).

Facts: The respondent bought a new Ford Everest from the appellant in November 2017, assisted by a Mr Wolmarans. On 28 January 2018, he observed corrosion on the bolts of the vehicle’s rear loading compartment under the carpet cover. The respondent informed Mr Wolmarans of the defect and was asked to bring the vehicle for evaluation. On the same day it was returned with the appellant denying any liability on the basis that the rust was a result of a spillage of pool acid by the respondent. The respondent then sent photos to the appellant as proof of further rusting and corrosion on other vehicle parts including the undercarriage. He was requested to bring back the vehicle to the dealership so that a further investigation and evaluation can be done by a representative from Ford South Africa. The claim was subsequently rejected by Ford South Africa after the respondent refused an offer that they repair the vehicle on condition he pays for the costs of repair whilst they supply the labour. His referral of the matter to the Motor Ombudsman did not yield any result due to the appellant not cooperating with the Ombudsman’s investigation. A formal complaint he lodged with the National Consumer Commission was rejected on the basis that the complaint does not constitute a ground for a remedy under the Consumer Protection Act 68 of 2008 (CPA). The National Consumer Tribunal granted leave for referral to consider the complaint.

Appeal: This appeal is against the decision handed down by the National Consumer Tribunal granting an award in favour of the respondent. The decision came about because of the respondent referring a complaint regarding a disagreement with the appellant under section 75(1)(b) of the CPA, in terms of which the appellant was ordered to remove the rust in the respondent’s car. The issues are whether the National Consumer Tribunal correctly applied section 55 of the CPA; whether the Tribunal award neglected the evidence presented before the Tribunal; and whether the repair remedy awarded by the Tribunal is appropriate.

Discussion: It is the buyer’s responsibility to demonstrate that the defect was present at the time the contract was signed and that the buyer was unaware of it. Since the respondent purchased a brand-new vehicle, he qualified for the protections provided by section 55(2) and carried the onus to demonstrate the existence of the defect at the time of delivery or receipt of the vehicle. Considering section 55, the appellant submitted that the vehicle does not fall short of the sub-provisions of this section. It is claimed that the purpose of the respondent’s purchase of the vehicle was primarily for transportation from point A to point B. Despite the rust, the car could nevertheless transport him, and it has done so for 170,000 kilometres. The appellant relies on the record of the appeal to support these submissions and to show that the respondent agreed that the vehicle was in good working order and of good quality. The appellant stated that the respondent bears the onus of proving a defect in the vehicle. Further, it was stated that the respondent confirmed that nothing prevented his use of the vehicle. The appellant also pointed out that no indication exists as to whether the vehicle did not fulfil any of the relevant standards. It is not appropriate to disregard any defects found in the vehicle, including the rust on certain parts of the vehicle, even if it is still functional and fulfilling its intended purpose. Based on an analysis of the annexures, the rust has spread extensively throughout the vehicle, affecting the metals. Although the vehicle can still be used to get the respondent from point A to point B, it is not meant to have a rusting or corrosion on any of its parts as a new vehicle.

Findings: Due to the existence of the rust, the vehicle is less acceptable and unsafe than people generally would reasonably be entitled to expect from the goods of that type, a brand-new car. This indicates a defect in the vehicle. The appellant claimed rust developed from pool acid spilling, but the respondent denied any acid spill and requested proof. The fact that, because Mr Heinus has never encountered this problem or heard of a complaint regarding rust on a manufactured car, does not imply that it will never occur. The respondent’s signature on the pre-delivery inspection certifies that he acknowledged there was no problem when the car was purchased. The respondent is not an expert in cars or the manufacturing process. As such, he could not have known, if he was a fair buyer, where and how to check for defects when he bought the car. This fault is a latent defect, the rust was hidden under the carpets, it was not visible or apparent upon inspection of the vehicle. As stated in section 55(5)(a) of the CPA, it is irrelevant whether the defect could have been detected by the consumer at the time of purchase. The rusting of the vehicle is directly linked to the definition of a defect. It is unpersuasive for the appellant to claim that the respondent had spilled the acid. If there was an acid spill, one would have wondered why the rust started manifesting under the carpet lid and not on the carpet, chairs and seatbelts. Therefore, the vehicle should be repaired by the appellant in accordance with the order of the Tribunal. All that the appellant did was investigate what was causing the car’s corrosion. It never tried to repair the defects. The Tribunal was therefore correct that repairing the defect is the appropriate remedy available to the respondent.

Order: The appeal is dismissed with costs. The order of the Tribunal stands. The appellant is ordered to remove the rust and repair the respondent’s car back to the standard it should have been if there was no rust.

KHUMALO J (LENYAI J concurring)

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Amaning v Ackerman [2024] ZAEQC 2

CONSTITUTION – Equality – Hate speech – Communications between two business associates

Unlawful hate speech amounting to unlawful discrimination against Black people – No requirement inherent in verb “communicate” that offensive words be communicated widely – Cannot be said to be in “intimate personal sphere” – Fall within range of words which may be “communicated” in section 10(1) – Equality Act Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10(1).

Facts: The first incident pleaded is that in 2018, at Mr Ackerman’s business premises, he said to Mr Wellman the following words or substantially the same words: “The k . . . s running this country will just keep f . . . ing it up as they have done in the rest of Africa.” The second incident pleaded is that in 2018, also at the business premises, Mr Ackerman said to Mr Wellman that Mr Liebmann was “that f . . . ing Jew who only wants to enrich himself in every deal” or words to that effect. The third incident pleaded is that in 2019 Mr Ackerman sent a text message to Mr Wellman with the words; “ Garth after today I might be seen as racist but I will man alone kill every k . . . r that cross my path. So God help me.” The fourth pleaded incident is that during 2021 in a telephone call Mr Ackerman said to Mr Wellman: “My k . . . s know their place.”

Application: The relief sought is an order declaring that Mr Ackerman’s words amount to hate speech and unfair discrimination based on race and to harassment. Further, an order is sought that Mr Ackerman pay R500,000 to the Ahmed Kathrada Foundation, which has as its core objective the deepening of non-racialism. It is sought too, that Mr Ackerman make a public apology and that Mr Ackerman undergoes 50 hours of racial sensitization training by the Human Rights Commission or an institution or person nominated by it. Costs are sought. The complainants were Mr Amaning (Black or African), Mr Liebmann (White or European and of Jewish ethnic origin and religion) and Mr Wellman (White and not Jewish). Mr Liebmann has withdrawn his complaint.

Discussion: This case concerns communications between two business associates, one of whom used the k word. The documents in the case are many and relate mostly to business that the parties did together. There is pending litigation regarding that business. Mr Amaning was born in Ghana and raised in South Africa. He grew up in the small town of King Williams Town where racial inequalities were starkly visible. Mr Wellman stated that Mr Ackerman never shies away from expressing his views and that he frequently adopted a disparaging tone, especially when addressing the topic of BEE. The cross-examination of Mr Wellman was long and probing. Mr Wellman conceded that there had been friction in the business between the parties from about 2018. It was argued for Mr Ackerman that the texts allegedly sent by him had not been proved, apart from Mr Wellman’s alleged dishonesty generally, for want of compliance with the provisions of the Electronic Communications and Transactions Act 25 of 2002. It was argued for Mr Ackerman that the communications between him and Mr Wellman were private and could not amount to hate speech as envisaged by section 10(1) of the Equality Act.

Findings: There is no requirement inherent in the verb “communicate” that the offensive words be communicated widely. It is sufficient that one person be addressed. A person, intent on promoting hate speech might address one person at a time. What Mr Ackerman did was precisely to expose Mr Amaning and all Black persons “to hatred and was likely to perpetuate negative stereotyping and unfair discrimination“ as stated in Qwelane v Human Rights Commission [2021] ZACC 22. The communications in the present case are sufficiently public “communications” for the purposes of section 10(1) in that they do not fall within the “inner sanctum of the person”. The court finds it difficult to hold that the Legislature and the courts all meant to exclude from the ambit of section 10(1) of the Equality Act communications, such as those in context here, between two White business associates, one gratuitously using the k word. One of the purposes of the Constitution and the Equality Act would be to move any White persons who may still be in an apartheid comfort zone out of such a space. In effect, Mr Ackerman relied on what he assumed would be the like mindedness of Mr Wellman. This is precisely one of the assumptions that the Constitution and the Equality Act seek to displace. The communications by Mr Ackerman to Mr Wellman cannot be said to be in the “intimate personal sphere” and fall within the range of words which may be “ communicated “ in section 10(1) of the Equality Act.

Order: It is declared that Mr Ackerman in 2018, 2019 and 2021 used the k word when speaking to or texting Mr Wellman. It is declared that this speech is unlawful hate speech, amounts to unlawful discrimination against Black people, including Mr Amaning, and constituted unlawful harassment of Mr Wellman. Mr Ackerman is to pay R500,000 to the Ahmed Kathrada Foundation. Mr Ackerman is to make a public apology to Mr Amaning and Mr Wellman within five calendar days of the date of this judgment. Mr Ackerman is to undergo 50 hours of racial sensitization training to be conducted by the Human Rights Commission or an institution or person nominated by it. Mr Ackerman is to pay the costs of Mr Amaning and Mr Wellman on the attorney-and-client scale, including those of counsel.

WRIGHT J

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