Tuesday, December 9, 2014

WhatsApp, BBM messages are legally binding in SA

A recent ruling from the Supreme Court of Appeal shows that simply signing your name at the end of a WhatsApp message or e-mail is enough to constitute a binding agreement.

December 8, 2014

WhatsApp, BBM messages are legally binding in SA

A recent ruling from the Supreme Court of Appeal (SCA) shows that simply signing your name at the end of a WhatsApp message or e-mail is enough to constitute a binding agreement.

The SCA ruling in November found that e-mail negotiations and typed e-mail signatures were binding.

In the case, two companies signed agreements with clauses providing that cancellation to a specific contract could only be made in writing and signed by both parties.

However, when the contract was to be cancelled, the terms of the cancellation were recorded in an e-mail exchange and the names of the parties appeared at the bottom of each e-mail.

When one of the businesses entered into another agreement with another company, the former partner interdicted the arrangement on the basis of breaching the former contract.

On appealing the interdict, the SCA upheld the appeal, ruling that the email exchange cancelling the contract was binding in terms of the Electronic Communications and Transactions Act, 2002 (ECTA).

Message with caution

Following the ruling, law firms Webber Wenzel and Norton Rose Fulbright detailed how the SCA reached its conclusion.

Norton Rose Fulbright associate Nerushka Deosaran noted that the ECTA gives communications via data messages (including WhatsApp, BBM, and even social media) the same effect as non-electronic documents.

“This means that if there is a requirement to have a document in writing, the ECTA gives the same legal effect to that document in electronic format,” Deosaran said.

When a signature is required by law, however, the ECTA requires electronic communication to contain an “advanced electronic signature” from an accredited authority.

“But an agreement between private parties to sign a document…does not amount to a legal requirement for a signature and therefore an advanced electronic signature is not required.”

If a type of electronic signature isn’t agreed upon by both parties when transacting electronically, a person’s name at the end of an email or data message is enough to satisfy the requirements set out by the ECTA – namely:

It identifies the person.
It indicates the person’s approval of the information.
It is reliable and appropriate for the purpose it was communicating, with regard to the circumstances.

Webber Wentzel technology, media, and telecommunications head Robby Coelho noted further that parties should exercise caution in their electronic communications, given how pervasive these communications are in the workplace.

More on electronic law

E-mails about contracts should be binding: law firm

Delay SA online content regulation laws: ISPA

Nothing is safe on the Internet: lawyer

Social media policies needed: law firm

Staff Writer

BusinessTech's Staff Writer is directly plugged into the South African Internet backbone, and spits out press releases and other news as he receives it. He is believed to be close ...

Friday, April 4, 2014

Lawyers in big sweat tormenting gym members

By Jon Abbott

A firm of attorneys who claim to have been instructed by a gym group that went bust nearly six years ago continue to harass former members with letters of demand threatening to sell their homes unless they pay small amounts.

J M Meiring Attorneys of Randburg states that it has been "instructed" by its "client", the Health & Racquet Club, when, on its own admission, it has never been involved in the liquidation of the club or its holding company, LeisureNet.

It also tells people to pay their debts into a Leisurenet trust bank account. Its letters continue to contain this information even though the local law society has ruled that letters of demand must not be misleading.

Former members of the club in KwaZulu-Natal and Gauteng have been told to pay debts allegedly incurred just before the club went under in 2000.

Some of them have had up to four similar letters of demand in the past few months.

The club of 80 gyms with 900 000 members was part of the LiesureNet group that was liquidated. Soon afterwards it was taken over by Richard Branson's Virgin Group and renamed Virgin Active.

Most of the letters say that as a result of an investigation into the person's "financial affairs" it has been established that they own a particular property.

"This means," the letters continue, "that we can now institute legal action against you in terms of the magistrates' court Act, which will enable us to sell your property at a public auction."

The letters also state: "Numerous attempts have been made to contact you, regarding your outstanding debt to our client, with no positive response from you."

This is in spite of the fact that people have responded to similar, earlier letters without getting any response from the attorneys.

Cathy Bouwmeester, of Randburg, recently received her fourth letter since last April.

Prior to that, she received a letter of demand relating to her Health & Racquet Club membership from a different firm of attorneys in 2001, and she then paid R453 93 in full and final settlement.

She paid Van der Venter Majapelo Incorporated (VVM), which subsequently split when one of its directors, Johan Meiring, formed JM Attorneys, which operates in the same Randburg building as VVM.

"After I got the April letter I went to JM's office with my 2001 cheque, which I had luckily kept," said Bouwmeester.

"I was told they would look into it. After that I phoned them every day for two weeks, and as I couldn't get any sense out of them, I gave up.

"It is deplorable that they can threaten to sell my house, which is worth more than R1-million, to satisfy a debt of just over R1 000. What's worse is the way they go on harassing people when they are in the wrong."

A legal expert said a debt became prescribed and could not be legally enforced if a summons was not issued within three years of the date when the person, who was owed the money, became aware of the debt.

Ben du Randt, a director of KPMG Administrators, the Cape Town firm that is doing the administration for the LeisureNet liquidators, said JM Attorneys bought the book debts of individual members of the KwaZulu-Natal and Gauteng clubs. However, this was denied by the JM Attorneys. All it would say was that it had "been instructed on a portion of the debtors' book".

Asked if there had been any complaints to any law society about the firm's letters of demand, JM Attorneys replied that due to the "sensitive" nature of their credit recovery work, "complaints are received on an ongoing basis, which are duly attended to".

Blue says probe is delaying its turnaround plan

BY PHAKAMISA NDZAMELA, 02 APRIL 2014, 05:55

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Blue Financial Services CEO Johan Meiring. Picture: FINANCIAL MAIL

BLUE Financial Services said on Tuesday its turnaround plan had been undermined by forensic investigations that have delayed a capital raising for the lender.

This has stalled plans to drive the company’s recovery and growth plans, a situation that has kept shareholders in the dark about the financial status of the company.

Blue Financial Services has not published its full-year and interim results for the periods ended February 2013 and August 2013. The company has repeatedly said that the results are being stalled by investigations into the company’s affairs.

"The delay, which was due to the complexities involved in the investigation, has meant planned recapitalisation of the company by controlling shareholder Mayibuye had to be suspended.

"This obviously means that planned growth strategies of Blue could not be implemented until such time as the investigations had been completed, and the company had been adequately recapitalised," Blue CEO Johan Meiring said on Tuesday.

"We are, however, confident … that following the completion of the forensic reports, as well as the planned release of the outstanding financial results, the company can consider implementing initiatives to achieve its turnaround strategy as previously envisaged," he said.

The trading of Blue’s shares has been suspended on the JSE since June 2013 due to failure to publish financial statements.

The JSE has warned that it will have to make an unpopular decision and delist Blue if it continues failing to publish results.

"It’s a concern for us. It’s a concern for shareholders. We will keep the suspension on their shares until they comply with requirements," JSE director of issuer services John Burke said on Tuesday. "We can’t keep a company suspended for a long period of time. At some point we are going to have to take action."

Mr Burke could not say how long it took for the JSE to delist a company that did not comply with listing requirements, saying this was dependent on the circumstances of the company affected.

He said the JSE also had to take into consideration the effect on shareholders, as an abrupt delisting could wipe out shareholder value.

"The company said yesterday that due to some shareholding issues regarding its investments in Nigeria’s Blue Micro Finance Bank (Blue Nigeria), it had taken the decision to de-recognise its controlling equity stake in the Nigerian operation.

This means Blue Financial Services will no longer consolidate Blue Nigeria in its financials. Blue Financial Services could not disclose the exact shareholding in Blue Nigeria pending the publication of results.

In January 2013, Blue Financial Services had to close down its Zambian lending operation, Nedfin Zambia, as the interest allowed to be charged was reduced by Zambian authorities. Nedfin Zambia had focused on short-term loans of less than three months. In Zambia, Blue now operates Blue Financial Services Limited Zambia.

In Lesotho, there were challenges surrounding the reinstatement of government payroll deductions, and the company discontinued lending there. In South Africa, it has stopped lending and has focused on asset rehabilitation as consumers battle over-indebtedness.

Old Mutual confirms fraud report on Mayibuye Group

BY PHAKAMISA NDZAMELA,

Blue Financial Services and Mayibuye CEO Johan Meiring. Picture: FINANCIAL MAIL

Blue leadership left red-faced after fraudulent transactions

OLD Mutual confirmed last week that allegations of fraud within the Mayibuye Group, which is the controlling shareholder of JSE-listed pan-African lender Blue Financial Services, had been reported.

In 2008, Old Mutual granted Mayibuye — through a specialised vehicle called Leonox — a facility to provide home loans and short-term finance to borrowers. About R440m was invested in Leonox.

"It has been brought to our attention that fictitious loans, and loans that do not meet the agreed criteria, appear to have been sold to Leonox Investments by Mayibuye and its various group companies," Old Mutual said last week.

"These alleged unlawful activities are currently under investigation and we will only learn the nature and extent of the alleged activities with certainty when the investigation is concluded."

A February 2011 circular issued by Blue Financial Services notes that an agreement was concluded by Old Mutual Life Assurance Company South Africa, Leonox, Blue Financial Services and some of its subsidiaries and Creditedge, which is owned by Mayibuye.

The agreement makes reference to provision being made for Blue Financial Services and some of its subsidiaries to sell to Leonox up to R300m of claims "which Blue and certain group companies have against debtors".

Blue Financial Services has said that it has instituted a forensic investigation.

Blue Financial Services and Mayibuye CEO Johan Meiring said last week he would not confirm or deny the allegations.

Mr Meiring did not want to comment on whether the Blue forensic investigation was linked to the Old Mutual matter.

Blue Financial Services, whose shares are suspended on the JSE, is trading under cautionary.

Mr Meiring said the lender was in a closed period and would only comment on issues affecting the company once it released its financial results. Mr Meiring has previously said that Blue Financial Services will release its results by the end of August.

Former Blue Financial Services CEO Dave van Niekerk said two weeks ago that he had been informed of financial irregularities at Blue Financial Services.

Debt collecting boss let off hook

Association not prepared to act over attorney-code violations

The national association for debt collectors sets a standard of conduct that has been violated by a firm of attorneys headed by its own president.

But Arnold Olivier, the vice-president of the 240-member Association of Debt Recovery Agents (Adra), said this week that he was not prepared to ask his president, Gert Visser, to step down.

Visser is also the acting managing director of controversial JM Attorneys (Motto: Informed Solutions), which has, since June, twice been told by the Law Society of the Northern Provinces (LSNP) that its letters of demand were unacceptable.

Earlier this month it was warned that if it continued to send out the letters, which were bringing the attorneys profession into disrepute, it would face more serious action.

As an Adra member, Visser represents debt collectors Pholosa Asset Management, whose offices are in the same Randburg building as JM Attorneys.

"We are not negative about last week's Saturday Star article [that disclosed Visser's Adra link] but we don't think it's right to drag Adra into it," said Olivier, who runs the Credit Bureau in Potchefstroom. "It should be addressed under the law society rules and not Adra's. I have spoken to Mr Visser at length and he has done nothing wrong. On the debt collecting side there have been no complaints to us."

He added that, in any event, Visser's two-year presidency would end at the annual meeting on November 9.

Since the beginning of this year, JM Attorneys has sent out numerous letters of demand to ex-Health & Racquet Club (liquidated in 2000) members and Telkom clients who were in conflict with Adra's code of conduct. As an Adra member, Visser was duty bound to honour its code of conduct and ethical standards "in all instances and at all times".

However, Adra has no jurisdiction over JM Attorneys. Among the discrepancies were:

lAdra members must be "just, fair and honest" and must not "deliberately lie or misrepresent any fact". But many of JM Attorneys' letters stated that it was "instructed by its "client", Health & Racquet Club or Telkom, when in fact it had been instructed by the Mayibuye Credit Risk Group, an associated company that buys book debts and has offices in the same building as JM Attorneys. Visser conceded that this part of JM Attorneys' letters was not true, and stated: "We have amended our letters slightly to ensure there is not unintended consequence." Mayibuye is headed by Johan Meiring, who is also a director of JM Attorneys.

lAccording to Randburg attorney AndrÃ© Cruywagen, the letter his client received was a lie when it stated that unless payment was made by February 28, it would be "construed as an express consent" to sell his client's fixed property under section 66 of the Magistrate's Court Act. That section, Cruywagen maintained, came into force only after judgment had been granted. "This false statement is clearly induced to shock and terrorise the layman into paying without further ado," he wrote in a letter of complaint to the LSNP.

lAdra's members are told that they must not "deliberately threaten or cause distress" to a debtor. But JM Attorneys headed many of its letters "Notice of intention to attach fixed property" in bold type, and in the body of the letters it made it clear that unless the person paid within a few weeks, their home would be sold. Often the amounts claimed were no more than R2 000.

lAdra maintains that its members must not send letters that "may constitute excessive harassment of the debtor". Yet a Randburg woman has received five JM Attorneys letters of demand since April, even though she went to the firm's offices after the first letter with her cheque showing she had paid in 2001.

lA member, Adra's code states, "shall not initiate or threaten to initiate communication with the debtor's employers prior to obtaining judgment against the consumer in order to exert pressure on the debtor". In the October letter the Randburg woman received, it stated that her employer "may be summonsed to testify before a magistrate as to what your monthly earnings are". At that stage, as far as she was aware, no judgment had been taken against her. Visser claimed that this was taken out of context.

In an eight-page reply to questions put to him, Visser stated that it was not true to say the LSNP had found the letters of demand to be "unacceptable" and did not feel he should resign as Adra president. He emphasised that Adra had no control over JM Attorneys.

By Jon Abbott The Star 28/10/06

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Tuesday, March 4, 2014

LexisNexis SA kicks off 2014 with the launch of Practical Guidance Civil Procedure practice area

Content and technology solutions provider LexisNexis South Africa today launched a new practice area in its Practical Guidance portfolio, with Practical Guidance Civil Procedure set to provide real-world insight around the rules and standards that courts follow when adjudicating civil lawsuits.

The Practical Guidance series gives legal practitioners the tools to extend their business into other areas of specialisation through an online interface that gets users to topical legal information quickly. Its emphasis is on comprehensive and up-to-date information and practical aids to execute tasks.

Content for the Practical Guidance Civil Procedure practice area, the fourth in the series, covers a range of civil procedure matters, from instituting actions to appeals and reviews.

It is authored by a panel of respected advocates with diverse backgrounds and areas of specialisation. They are Brenda Neukircher, who has a wide general civil practice but specialises in administrative law, family law and commercial law; Liezl Haupt, who specialises in child and family law; Sonika Mentz, who has an interest in commercial matters and has a general commercial practice at the Pretoria Bar; and Ross Garland, who specialises in public and commercial law.

As a web-based solution, LexisNexis’ Practical Guidance solution is the first of its kind in South Africa and follows on from successful launches in the United Kingdom and Australia. It provides users with online access to guidance material and commentary authored by expert practitioners in their field. It also includes checklists, legislation, case law, step-by-step processes, document precedents and direct links to useful external content.

Using the solution, law firms are able to save time and resources that would have been spent on drafting, by instead being able to access information and pertinent legislation in one place easily and efficiently. This allows firms of any size or type to verify legal positioning and proposed course of action.

Corporates may also benefit from not having to outsource certain aspects of legal counsel or research, since in-house resources can easily use Practical Guidance to decide on course of action, check case law precedents or stay ahead of changes in legislation.

For larger law firms the Practical Guidance solution also has value as a training tool for junior associates and Candidate Attorneys still building experience and gaining confidence.

Earlier this year LexisNexis launched Practical Guidance practice areas for Labour, Income Tax and Business Law. The solution will be further rolled out in 2014 with new practice areas including Labour Government, Family Law, Corporate Governance / Compliance, VAT, Labour Lite and Competition Law.

The series is fully integrated with the MyLexisNexis deep research library. For more information on the Practical Guidance product visit www.lexisnexis.co.za/practicalguidance.

About LexisNexis Legal & Professional

LexisNexis Legal & Professional (www.lexisnexis.com) is a leading global provider of content and technology solutions that enable professionals in legal, corporate, tax, government, academic and non-profit organisations to make informed decisions and achieve better business outcomes. As a digital pioneer, the company was the first to bring legal and business information online with its Lexis® and Nexis® services. Today, LexisNexis Legal & Professional harnesses leading-edge technology and world-class content, to help professionals work in faster, easier and more effective ways. Through close collaboration with its customers, the company ensures organisations can leverage its solutions to reduce risk, improve productivity, increase profitability and grow their business. Part of Reed Elsevier, LexisNexis Legal & Professional serves customers in more than 100 countries with 10,000 employees worldwide.

In South Africa, LexisNexis’s (www.lexisnexis.co.za) unique combination of Butterworths authoritative content and powerful online research offers an extensive range of print and online research solutions for professionals, government, business and students. In addition, with professional seminars, practical training, safety, health and environment compliance and online access to public record information, LexisNexis helps customers reach decisions confidently.

Time Management Tips for Lawyers

The “Time” element means a lot to professionals, especially lawyers who manage innumerable clients, hearings, and in between fulfill the needs of their family and friends. Add the socializing component and you will know how difficult it must be to manage all the chores. In such a scenario where time means money it would be foolhardy to spend even a minute on unproductive tasks.

Here are the tips for a lawyer to improve productivity through time management.

- Begin the Day Early

You won’t believe the number of unproductive tasks you can accomplish in the morning hours without hurting your crucial ‘Billing” time. Workout, chat with family, update yourself on latest news or maybe a case, call up friends, brush up skills and seek new avenues to improve your earnings. You can get rid of all the inconsequential chores in the morning provided you begin your day early.

- Phone – The Innocent Devil

Many people, including lawyers are not aware of how much time is wasted on unwanted phone calls. A minute or two saved on each call translates into hours and man days over a long period. These extra days are like bonus which can be put to more productive tasks. Keep your talk to the point, and keep it short. If you are busy with a client or in the court, ignore this devil which will simply distract you and affect your performance. And performance is the key to a successful career.

- Email Management

There is no point checking mails every few minutes. Consolidate all your electronic correspondence, and initiate action twice or thrice in a day. Use mail client instead of logging into your web based account. It will save precious minutes. Secondly, mails can be composed, queued, and sent quickly via mail software.

- Multitasking

Today, multitasking is essential to squeeze out more out of the allocated productive hours. Use coffee time to update clients, lunch hour can be utilized for case study and finally travel time need not be wasted looking out of the window of the car. Return important phone calls. Although multitasking does squeeze out energy, it is just a matter of time before you get used to it.

- Limit Time Spent on Social Media

It is easy for anyone, especially lawyers to get distracted. Their work demands focus, silence and motivation. All this means a peaceful ambiance. Stay off social media sites, blogs, and also keep a leash on your hobbies such as watching a football or a baseball match during productive hours. These are adrenaline sports which kill concentration.

- Personal Information Manager

Application such as Microsoft Outlook can help sync several chores. Although it is mainly used as an email application, it can also be exploited as a desktop calendar, task manager, contact manager, note taking and also for web browsing. Lawyers also need to configure their cell phone portable PIM or personal information manager. Maintaining a dairy will be an added advantage.

- Use Productivity Tools

Use internet frequently for research material; as an alternative to books. Download templates for letters, presentations and case study papers, and fine-tune them to your requirement instead of creating it from the scratch.

- Set Up Goals

Create a timeline of goals in terms of billing hours or whatever makes your practice efficient. Review these targets. This could be weekly, monthly or quarterly. By analyzing your goals you can plan for the next set of goals (billable and non-billable), enhancing your productivity.

- Set Up Client Limit

Lawyers should record or docket the number of clients or cases he/she addresses at any given point of time. Create a case file; segregate those who are already using your services. Mark others in bold. However, a lawyer should limit himself/herself to the number of clients he accepts.

- Delegate Work

You as a lawyer need to appoint junior staff, typically specialists. This is a great way to improve productivity and increase billings. Agreed, some of it will be shared but nonetheless it will increase the bottom-line of your balance sheet. A point to note here; hiring junior staff and delegating tasks is an art. Lawyers should employ a mix lot of experienced and inexperienced people. You don’t want to allocate a trivial chore to a highly experienced junior lawyer who would take away all your profits.

- Hire Secretaries

Trivial paperwork needn’t be handled by junior lawyers or you for that matter. Secretaries are cheap. They are efficient in handling such tasks. Hire a couple of them depending on your business volume and see the difference it makes to your business’s overall efficiency.

- Procrastination – Your No.1 Enemy

Dillydallying chores, tasks or assignments, keeping phone calls on hold for unusually long time or simply postponing to imbibe certain rules and efficient mechanism will spell doom. Delaying for whatever reason will cost you more than you bargained for in the long run. In short, take a quick decision but a wise one.

- Exploit Technology

Don’t resist new technologies. They are meant to turn individuals and businesses efficient, productive and creative. Exploit it to the hilt and see the difference. Use cloud computing, get networked, connect with clients and staff through messaging apps etc.

- Prioritize Tasks

Prioritize your tasks. Segregate them according to their importance in terms of billing or based on client quality. Give a gentle push and dump clients who take up more time than he/she is billed for which typically means loss. Choose quality over quantity and build goodwill which will automatically make your business go viral through word of mouth publicity.

- Simplify Your Operations

Last but not the least, simply and organize everything. The flow of paperwork and decision making needs to be transparent and efficient. In such a scenario any lapse or failure can easily be detected and the person responsible quickly narrowed down. All this translates into a robust business module that offers world class service, which incidentally in this case is a lawyer.

Frank Speller is a blogger for CarsonCity-Drug-Attorney.com. He is interested in writing about various legal issues related to crime and also about online strategies which can help a Law Firm.

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Tuesday, December 9, 2014

WhatsApp, BBM messages are legally binding in SA