SOCIAL MEDIA SHARING – CAN I BE HELD LIABLE?


Lynette Badenhorst

Social media has become a platform where people can share their opinions and various ideas, by the push of a button. With controversial tweets from politicians to the average person on the street, everyone has the opportunity to provide their opinion to the world.

Although this tool of communication has become one of the most useful communication and marketing tools, it has become a dangerous place where people share and like posts drafted by others without thinking about the repercussions of their actions.

Social media has opened a new platform for cases of defamation, infringement of privacy, dignity, discrimination, and even dismissal from the workplace, where comments have been made against companies and individuals. This is not reserved to comments made, but includes the sharing of someone else’s comment or liking someone else’s posts. The moment you like or share a post, you associate yourself with that person’s view or opinion, and can be held liable for the same infringements as the person who wrote the post or idea.

Unfortunately, there is currently no legislation regulating misconduct relating to social media. The courts therefore have to apply other areas of the law in order to determine whether an applicant has merit in such an instance or not.

The Constitution makes provision in terms of Section 16 for freedom of expression which includes the freedom to impart information or ideas. The Constitution however also makes provision in Section 14 for the right to privacy, which includes subsection (d), the right not to have the privacy of their communications infringed. Posts and tweets and its respective content will therefore be amongst the human rights that will need to be weighed up against each other, considering the merits of each case.

An example of a recent case where the court had to apply other areas of the law to the social media posts that was not just made by the respondents but also shared by various people is the case of Fichardt v Potgieter.[1]

The respondents posted several negative posts and voice notes on the social media platform Facebook, stating that the applicant owes the first respondent money, and further insisting that he pay it back. The respondents also referred to the applicant in a derogatory manner, using hostile and defamatory words. All the respondents then proceeded to warn the public against the applicant.

The respondents did not dispute their comments but claimed that it was the truth and therefore in line with public interest. The applicant claimed that, at the time the post was made, it was shared 1315 times by Facebook users. Judge J Loubser held in this case that “there can be no doubt that these words are reasonably capable of conveying to the reasonable reader a meaning which defames the applicant. The only remaining question is then whether the respondents have succeeded in dispelling the wrongfulness of their defamatory statements. The respondents bear a full onus in this regard, and are required to prove, for instance, the truth of their statements or the public interest pertaining thereto.”

The Court held further that the sole purpose of the respondent’s comments was to force the applicant to pay the respondents and therefore, the comments and post cannot be in public interest. The Court therefore made the interim order a final order, and interdicted and restrained the respondents from posting any information pertaining to the applicant or the applicant’s immediate family on Facebook or any other form of social media or other website, and to remove any postings or comments on such postings pertaining to the applicant and/or the applicant’s immediate family on Facebook, or any other social media or website, that it might have been posted to before.

It is clear that the Court will evaluate each case on its own merits, but it will not take a post, comment or sharing of a post or comment on social media lightly, due to the consequences such an action can have on the parties involved.

So, the next time you feel like posting your thoughts, feelings and opinions on social media, or even want to comment of share someone else’s comments or posts, just remember that everyone who contributes to the defamatory or discriminating content of such a post, can be held liable.

  • [1] (2018) ZAFSHC 99.

SINGLE PARENTS: SHOW ME THE MONEY FOR SCHOOL FEES


Zinta Heunis

A school fee is an agreed upon amount of money that parents pay towards schools, aimed at improving the quality of education of their children as learners. Although it may not include registration fees, administration or other fees, Section 1 of the South African Schools Act define school fees as: “fees which includes any form of contribution of a monetary nature made or paid by a person or body in relation to the attendance or participation by a learner in any programme of a public school

The above begs the question of what does school fees entail? Surely one would expect that it could not possibly include extracurricular activities and afterschool care. But, be warned parents – don’t step in the rusty bear-trap.

Should you and your partner ever enter into a dispute about who should pay the school fees and if it includes extracurricular activities, stop and think about it first by making a list of what have you been paying for in the past.

If your past contributions shows that you have funded extracurricular activities and afterschool care fees, a Maintenance Court may make an attenuated assumption that the latter is included in the definition of school fees.

Before you turn red of anger, fret and / or suffer an anxiety attach due to your perception of the inimicality of the above, look at what the Constitution of the Republic of South Africa, 1996 (herein after referred to as the Constitution) which states:

The circumstances of each case will however be weighed up in Court. Section 39(2) of the Constitution indicates that: “when interpreting any legislation … every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

Section 28 of the Constitution clearly stipulates that the best interest of a child will always be of paramount importance in every matter concerning a child.

Therefore, if your financial contributions in the past has caused the other parent to launch an artillery barrage on your obligation towards and impact on the definition of school fees, do not hesitate to consult our offices for advice in this regard.

Remember to always ensure that in the event of a divorce settlement, the financial contribution towards school expenses are expressly stipulated.

PROPOSED PROCESS CHANGE: LOST DEEDS


Nadia Burger

What is a deed?

The most common deed is a title deed for your property. When you have no mortgage bond registered over your property, you as the owner of the property should be in possession of the original title deed. An original title deed bears the original signature and seal or stamp of the registrar of deeds on the last page of the deed.

If you bought a property and you financed it by taking a bond from a financial institution, a mortgage bond is registered over the property simultaneously with registration of the property on your name. The bank will keep the original title deed in their possession until you settle your bond in full, similar to when a paid off car is transferred from the bank to your name.

After twenty years of paying off your bond, you finally receive the original title deed back from the bank and you safely put it under your bed for safekeeping. You decide that you are tired of the city life’s hustling and bustling and you are retiring in Wilderness, Western Cape. You sell your property and the transfer attorneys attending to the sale of your property is requesting the original title deed, but it is no longer in the safe place under your bed. What now?

Well, up and until recently, you simply had to depose to an affidavit in front of a commissioner of oaths wherein you had to state that you have lost your original title deed and request the registrar to issue you with a new copy. However, this simple procedure led to many instances of fraud. Fraudsters would depose to an affidavit stating that they have lost the original title deed and the property would be transferred to their names fraudulently without the owner having knowledge thereof.

The implementation of this new procedure would have started on 25 February 2019, but on 20 February 2019 a Chief Registrar’s Circular was issued to suspend the implementation of the amended procedure.

On a date, to be announced, the new process for the issuing of a new deed would entail:

  1. You still have to depose an affidavit to the effect that you have lost your title deed, but your signature has to be attested and authenticated by a Notary Public. A Notary Public is an admitted attorney who passed an additional practical exam. It has been said that a Notary Public has a higher level of expertise and trust than the average attorney.[1]
  2. You have to advertise in the Government Gazette that you intend to apply for a lost copy of the title deed and a copy of the lost deed must be open for inspection at the deeds office for a period of two weeks after publication in the Government Gazette.

The aim of this new process is to curb fraudulent transfers, but ultimately this will have a financial impact on the owner of a property as there is an additional fee payable to a Notary Public to attest to an affidavit. The two week period in which the copy of the title deed must be available for inspection, will cause a delay in the registration process.

Moral of the story? Keep your title deed safe!

  • [1](Elliot.1987. The South African Notary. 6th);

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice.

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