Often, in the midst of a disagreement, we find ourselves reducing things to writing. As attorneys, we often consider this as the most useful or dangerous of situations. Specifically, when admissions are being made and the parties to the dispute are not even aware that this is what they are doing!
Let’s be practical about this. We often see correspondence between people whether in an email, SMS, Facebook or instant message “…I will pay you….” On the flipside of the coin – often people ignore invoices or payment demands. This is equally problematic.
The implications if you reply or state that you will do something
Firstly, it does not matter how this is done or which platform is used. The Electronic Communications and Transactions Act 25 2002 as amended (ECTA) allows for the admission of documents, in court, which is of electronic origin on the same basis as documentary evidence.
The courts are facing an increase of evidence produced which is of an electronic nature. This includes communication such as emails/ WhatsApp messages/ social media communications albeit Facebook/ Instagram.
The problem is, if you state anything that could be construed as an admission or acknowledgement that the other person has a claim then this could be used as evidence in a court of law.
So, what is the problem of not saying anything at all?
In law, there is a common law presumption that when someone states that they have a claim against you and you do not respond, you agree.
So, be careful not to say anything at all.
Most people are aware of or have heard that marking correspondence as “without prejudice” keeps it off the record. Well, not always.
For the without prejudice privilege to apply and to protect communications or information from being used in court, the following must be present:
- An admission or statement must be made,
- In the course of settlement negotiations,
- [as a] Genuine attempt to settle the dispute (in other words it cannot be used to conceal facts or evidence and so obstruct justice ).
A without prejudice offer during settlement negotiations cannot be an admission in court by the party making it. The offer is only admissible if the parties are required to prove that an offer of settlement was made at all.
In support of this, in a case in the former Transvaal Provincial Division (TPD) (now called the North Gauteng High Court if seated in Pretoria and the South Gauteng High Court in Johannesburg) the court held that:
“Negotiations conducted without prejudice, are of course, designed to resolve disputes between the parties and if the negotiations result in a settlement then logically evidence about settlement and the negotiations leading up to it should be available to the trial court because the whole basis of the non–disclosure has fallen away”.
This means that in some instances without prejudice communications can become admissible evidence in court, losing their privilege regardless of whether or not all documents have been marked accordingly.
A more pressing problem arises when a communication aimed at settlement deals with other issues as well. In this case, the privilege only covers the part of communication containing the admission or concession aimed at settlement.
Another statement or admission within the correspondence can be quite irrelevant to settlement negotiations, which means that statement will not be entitled to privilege and therefore not protected as such.
If you find yourself in a dispute with someone, it is advisable to contact an attorney to advise you on a response from the start of the matter.
 Reinecke 2011: 131.
 Meyer v Provincial Department of Health and welfare and others – judgement of Mavundla (J) on 27 January 2006 –TPOD case number 9092/05.
 Reinecke 2011: 132.
Top Sectors For SMEs In 2019
“As such, SMEs in the construction, communications and electrical fields are all likely to benefit from supply and sub-contracting agreements over the coming years.”
While the South African economy has been underperforming for a number of years, the first positive signs of turnaround started to become visible by the second quarter of 2018, and by the end of the third quarter, data supplied by Statistics South Africa showed that the economy had indeed grown by 2.2 percent, compared to the previous quarter. This uptick is expected to have a positive effect on business confidence in 2019.
This is according to Jeremy Lang, regional general manager at Business Partners Limited (BUSINESS/PARTNERS), who says that certain business sectors have already seen an increase in opportunities for small businesses and start-ups.
“While these sectors will not be without challenges, the following four industries are likely to offer the best opportunities for small and medium enterprise (SME) owners to grow their enterprises in the coming year.”
The World Travel and Tourism report 2018, revealed that the direct contribution of the travel and tourism sector to South Africa’s GDP has been projected to rise from R136bn in 2016 to R197.9bn by 2028 – set to make up a total of 3.3 percent of the country’s total GDP, says Lang.
“Although this sector experienced some setbacks in 2018, such as the drought in the Western Cape and stricter visa regulations for children entering the country, both the water restrictions and visa regulations have been relaxed and the sector is once again poised for growth,” he says.
Statistics South Africa has credited this industry with being the biggest driver of growth in the country’s GDP, having expanded by 7.5 percent in September 2018, says Lang. “To bolster this, Government has made a concerted effort to stimulate small business growth in this area with initiatives such as the Black Industrialist Programme and the SA Automotive Masterplan.”
He adds that businesses in the manufacturing sphere could therefore likely see significant opportunities in the form of outsourcing contracts and new partnerships with large corporates.
“The debate around land expropriation has occupied most of the discussions surrounding the agricultural sector in 2018, with some questioning growth prospects of this sector. However, this industry has a lot of growth ahead of it, as demonstrated by its 6.5 percent growth over the last three months of 2018,” explains Lang.
“Further to this, the industry is also already taking significant advantage of seven climatic regions in South Africa, with the export of a wide variety of high quality fruit and vegetables increasing substantially,” he points out. The recent outbreak of foot and mouth disease that has resulted in the suspension of the country’s FMD-free status will however significantly impact meat exporters.
In terms of opportunities for SMEs, he says that these may most likely be found in the rural and underdeveloped regions, where the need for resources like efficient transport, state-of-the-art cold storage, better irrigation and private power generation will be key to making agriculture projects more productive and competitive in the export market.
Data and information technology
Connectivity and information technology infrastructure are both crucial to business and employment growth in South Africa, says Lang.
“With many municipalities and the Western Cape government committing to providing all of its residents with free data as part of a plan to expand public Wi-Fi network access, it is clear that this is also becoming a high priority on a state level.”
It has also been reported that South Africa is awaiting the arrival of three international data centres, and large players in the communications sphere, including Vodacom, Telkom and Vumatel, are making huge strides in drastically growing the country’s fibre optic backbone, he adds. “As such, SMEs in the construction, communications and electrical fields are all likely to benefit from supply and sub-contracting agreements over the coming years.”
In conclusion, Lang says that as South Africa’s economic growth has started to turn around, business owners should keep their ears to the ground as 2019 is highly likely to be a year of opportunity.
Herman Mashaba To Talk On City Of Jo’burg Job Creation Initiative
Herman Mashaba to talk on City of Jo’burg job creation initiative at 2019 Business Day TV SME Summit.
Leading organisations at the SME Summit
SME Insurance Checklist For New Year
Malesela Maupa, Head of Product and Insurer Relationships at FNB Insurance Brokers, advises SMEs to consider the following factors when reviewing their policies.
Business owners who are planning for the year ahead should not overlook the importance of reviewing their insurance policies to ensure they are adequately covered against insurable risks.
Malesela Maupa, Head of Product and Insurer Relationships at FNB Insurance Brokers says, every year businesses face unique challenges ranging from credit and market risks, technological disruptions, compliance, operational and regulatory risks, amongst others. As a matter of precaution, insurance policies should at least be reviewed or updated once a year.
He advises SMEs to consider the following factors when reviewing their policies:
- Employee movements – if there are any employees who have left or joined the company, ensure that your policy is updated accordingly.
This type of cover normally depends on the role and contribution of the employee to the business. For instance, directors may be covered for Key Person Insurance and Directors & Officers Liability insurance.
- Protest Actions – this year is the national election year and leading up to elections we can expect to see an increase in the frequency and severity of protest actions, riots and strikes. Thus, it is essential to ensure that adequate special risks cover is in place from the South African Special Risks Insurance Association (SASRIA).
SASRIA provides cover to both individuals and businesses against special risks like civil commotion, public disorder, strikes, riots and terrorism at affordable premiums.
- Cyber risks – it is essential to communicate with your insurer or broker and find out if there are any new risks that your business should be protected against. Cyber incidents continue to be a major risk for businesses especially in the SME sector. Over the last couple of years there has been a major increase in the number of reported cyber incidences.
More businesses are now facing increased cyber threats due to their increased dependency on technology, relating to their internal and customer data being compromised by fraudsters. It is therefore essential to have some form of cyber risk insurance cover and/or enhancement of data security protocols.
- Regulatory changes – every year there are a number of regulatory changes that impact businesses directly or indirectly, which may result in fines and penalties for non-compliance.
- Natural catastrophes – the increase in the frequency and severity of extreme weather conditions, coupled with intensifying natural catastrophes will continue to have a significant impact on businesses.
Businesses should ensure they are adequately protected against these risks to avoid incurring sever financial losses.
- Business changes – should a business consider moving to a new location, purchasing new premises or venture into new business activities, these types of changes could have a major impact on its risks profile. As a result, the policy needs to be updated accordingly.
- New and Enhanced products – An innovative culture has taken over the insurance industry and ever so often we see the introduction of new products or the enhancement of existing products. Get in touch with you broker to advise you on any new products that might add value to your existing insurance portfolio.
“Reviewing your policy regularly gives you peace of mind knowing that you can focus on running your business effectively, without worrying about unforeseen risks,” concludes Maupa.
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