Social media and the employment relationship

Social media sites such as Facebook, Twitter, Instagram, Linkedin and many others have become increasingly popular not only for social purposes, but also as a tool to assist in seeking employment opportunities and business networking. There is however a great misapprehension regarding the consequences and hidden dangers for the online socialite.

There appears to be a growing trend among businesses to utilise various available social sites for background checks and screening of potential and existing employees. Many employment agencies also include social media screening as part of their background verification of potential employment candidates.

The South African approach to the use of social media in the employment arena is still in its embryotic stage with limited guidance by our courts. The trend for employers to keep an eye on their employees’ social media interactions will however in time determine both parties’ rights and obligations. In the recent court decision of Experia South Africa vs Haynes, the Judge relied on certain information found on an ex-employee’s Linkedin online account as evidence that this employee interacted with his previous employer’s clients in prohibition of a restraint of trade agreement. It has therefore become practice to utilise information contained on social media sites to support legal cases.

The following guidelines can help to determine online posts that should be avoided at all times:

  • inappropriate, negative, inaccurate or insulting statements pertaining to your superior, colleague, company or any other point directly or indirectly relating to your working environment;
  • posts or tags relating to inappropriate pictures or remarks that conflicts with your employer’s vision, mission and/or policies;
  • posting status updates or photos whilst on sick leave;
  • posting confidential or sensitive information relating to your company, its product and/or its clients;
  • if you re-tweet or share someone else’s posts or pictures, as the case may be and as described above, you will be responsible for its publication.

The above-mentioned circumstances may give your employer grounds to accuse you of misconduct and/or insubordination which in turn may lead to disciplinary action and even dismissal from employment.

The following are recommended to properly manage your social media platforms:

  • be conversant with your employer’s social media policies which may be in place to regulate these platforms;
  • make sure your privacy settings restrict access to your profile and content;
  • monitor your profiles regularly to make certain that unwanted posts and pictures not in line with your employer’s policies are removed.

It should be borne in mind that the same principles, as alluded to above, will apply not only to junior employees but to senior management as well. It might well be the case that a manager or director (even an owner) of a business entity may, through his or her improper conduct on social media, violate the rights of an employee which can give rise to civil or even criminal liability. The name and reputation of the employer or employee is therefore ultimately the determining factor to consider before deciding what to publish on social media sites, which publication will also effect a person’s right to privacy as constitutionally protected.

Employers should take note of the hidden dangers associated with social media sites and the unregulated use thereof by employees and should obtain legal advice to assist in appropriate action and policies in this regard. On the other hand, employees should also be aware of their personal rights in this regard and legal assistance should be requested in the event that these rights are infringed upon.

Francois van Zyl

Maintenance Claims Of Adult Dependent Children Upon Their Parents’ Divorce

South Africa has one of the highest divorce rates in the world.

A claim for the maintenance of a minor child is generally brought by the parent in whose care the child is. Section 17 of the Children’s Act 38 of 2005 came into effect on the 1st of July 2007. According to Section 17, the age of majority was lowered from 21 to 18. This reduction in the age of majority had several repercussions for young dependent adults between the ages of 18 and 20. Typically, children between the ages of 18 and 21 are unable to earn sufficient income to pay their tuition fees or to support themselves and they remain financially dependent on their parents. This group of young adults now have the required capacity to litigate and upon their parents’ divorce, they can personally claim for maintenance against his or her parents. This was then also the court’s argument in the matter of Smit v Smit 1980 (3) SA 1010 (O) at 1018B – C, that:

When the child turns 21 … it is the child itself who henceforth must claim directly against one or both parents to the extent that he may have a claim for support with effective content.

On this interpretation the parent who has care of the major child does not have locus standi to bring a claim for maintenance relating to that major child and the “child” will have to be joined as a party to the divorce action. The alternative would be that the “child” institute a claim for maintenance in the maintenance court, which would inter alia require the child to be absent from school or from class for several days. First a complaint has to be lodged with the maintenance clerk and then the “child” has to appear at the initial informal enquiry before the maintenance officer and later at the formal enquiry in the maintenance court, which could be postponed several times, as often happens in practice.

Apart from being absent from school or class, another dilemma the “child” has is that he or she has to litigate against a parent with whom he or she has to maintain a meaningful relationship after the divorce. Another consideration is that if the “child’s” maintenance claim is granted and paid by one parent, it might be very awkward and undesirable for the parent with whom the “child” lives to look to the “child” to pay over some of the maintenance he or she received as a contribution towards the “child’s“ living expenses.

Many adult children find it awkward to engage in litigation against one of his or her parents. This often has the result that these “children” flatly refuse to institute their own maintenance claims, thereby placing an unbearable burden on the parent with whom they reside.

In two recent judgments our courts came to the assistance of the parent with whom the adult dependent child resided at the time of divorce. In these cases, JG v CG 2012 (3) SA 103 (GSJ) and Butcher v Butcher 2009 (2) SA 421 (C), the courts allowed the primary residence parent to include the costs of the adult dependent “child” in their claim for maintenance. The argument in Butcher was the following:

Placing this burden on an adult dependent child who still lives at home in most circumstances puts him/her in an invidious position. Also, where an adult dependent child still lives at home and the primary residence parent requires a contribution in respect of his living costs, it is undesirable that such a parent should look towards the adult child to pay over a contribution from an amount received as maintenance from the other parent.

The court went further:

In terms of s 7(2) of the Divorce Act a court, when determining a spousal maintenance claim, must take into account, amongst other factors, the parties’ respective financial needs and obligations, as well as their standard of living during the marriage. Where the parties have separated and the adult children of the marriage have continued to live with the mother who has had to use her household budget to run the family home and provide groceries for a three-member household, such parent’s responsibility to provide the children with a home, with all that this entails, constitutes an ‘obligation’ within the meaning of s 7(2) of the Divorce Act which can validly be taken into account in determining the quantum of her interim maintenance claim.

In JG, the Judge said that:

In my opinion, the discretionary and empowering provisions of these sections of the Divorce Act [sections 6 and 7] are sufficiently wide to enable a court, on divorce, to make an order directing the one spouse to pay amounts to the other spouse in respect of expenses incurred to maintain the major, but dependent, child.

This approach would ensure that the parent with whom the adult dependent child resides, is not prejudiced upon divorce and that both parents fulfil their common law duty of support in respect of their children. It would also save school-going adult children or students from the negative repercussions of having to institute their own maintenance claims upon their parents’ divorce.

Lizelle Marx


Litigation Funders: The processes and cost orders

It sounds cliché when a legal discussion starts with reference to the constitution, mainly when, to a ‘layman’, the issues are not constitutional. This is such a discourse, the issues are not necessarily about the constitution however, the premise on which the issues can be engaged fruitfully is when the focal point is the constitution, the supreme law.

Now for the cliché. The founding values of our Constitution includes human dignity, the achievement of equality, the advancements of human rights and freedoms, the supremacy of the constitution and the rule of law. The question with regard to the litigation funder’s role in litigation processes and cost orders in the instance, necessitates that we evoke the first two chapters of the constitution.

Litigation funding is a process whereby an independent third party, who does not have any interest in the matter, concludes an agreement with a party, who has an interest, to fund their litigation in return of a share in the fruits of the litigation. Litigation funders can be companies or individuals, who are bold enough to assume the risk of investing in a case and hope to receive rewards at the end. Litigation funders assess the merits of the case and the quantum involved prior to contracting to fund the litigation. The nature of the agreement between the parties is that the funder will provide financial assistance to cover the costs of the party’s litigation and the necessary disbursements. In other instances, the funder is active in the litigation process by dictating which attorneys will represent the party and also taking charge in what is to be done and how it should be done, which is generally done to protect their investment.

Litigation funding is a developed and successful industry in the United Kingdom. The industry in South African is barely in its infant stage. However, the idea of litigation funding is not new. We have in our law the principle of pactum de quota litis which was confirmed in the matter of Hugo & Möller N.O v Transvaal Loan, Finance and Mortgage co wherein the court decided that a fair agreement to provide litigation funding in exchange for a share in the proceeds is not per se contra bonos mores. During this period the validity of these agreements rested on whether they were concluded in good faith and whether they were not against public policy. The prima facie issue with this position is that the factors to consider do not create certainty as they are themselves enigmatic and are open to subjective interpretation to address issues that may have objective consequences.

In the matter of Headleigh Private Hospital (Pty) Ltd v Soller & Manning Attorneys N.O the court held that an agreement to share in the emoluments of litigation is not necessarily unlawful or contra bonos mores and is acceptable when the litigant is not in a financial position to fund the litigation process. In the PriceWaterHouseCoopers Inc v National Potato Cooperative Ltd matter the position changed when our Supreme Court of Appeal decided that litigation funding was not only not contra bonos mores, but did not have to meet the public policy test. However, the courts often frown upon and deal with litigation funding agreements which amounts to abuse of the system.

Litigation funding also poses inherent challenges to the party who is using the funding and also to the party against whom the action is brought. The most pertinent challenge is one of costs; who covers the costs in the instance that the party against whom the action was brought is successful and gets a cost order in his favour? The North Gauteng High Court had to deal with this issues and permitted a funder to be joined as a co-plaintiff in order to give a cost order against the funder and the Western Cape High Court also married the position of English law in that a cost order may be granted against the funder (the funder was already joined as a Plaintiff in this matter). But more questions arise: How will the parties against whom action is brought be aware that there is a funder to join? Will the possibility of cost orders then not scare litigation funders away?

The view exists that the law benefits the rich and the financially able. This view contradicts the values of the law as contained in our constitution: “Everyone is equal before the law and has the right to equal protection and benefit of the law”. Litigation is expensive and in a country like ours where the majority of people are living from hand to mouth, there is a need for litigation funders. Litigation funding has the potential to assist in the achievement and protection of constitutional rights, more specifically the right to access to courts. With the existence of litigation funders, those who are in a financial position to bully the meek and destitute out of what they deserve, simply because recourse would be beyond them due to financial constraints, are not at liberty to do so now.

The decisions of the High Courts in Cape Town and Pretoria pertaining to cost orders against litigation funders are progressive and revolutionary, as that is what is needed to cap the possibility of abuse of the system. With the option of litigation funders, those who are aggrieved can get legal recourse and access to the courts, litigating amongst the best legal representatives (such as myself!). Frivolous funding of non-cases is also addressed by cost orders. With litigation funders comes challenges, but equally comes sang-froid to those people who will benefit from their services due to their financial position. JUSTICE FOR ALL? Only time will tell.

Gastavus Chabalala

Commercialisation of Sport: with a specific focus on images and personality rights of sportspersons (Part 1)

Sport has increasingly become commercialised in recent years. One of the consequences stemming from these developments is that the physical image and physical attributes of individuals in the sport and entertainment industries have suddenly become commodities.

The advertising world has taken note of the popularity these stars enjoy and realises the value of associating their brand, merchandise and trademarks with these sport stars. On the other hand when these “stars” realise the value of commercialising their own image and creating their own brand, these sport stars actually exploit their own fame by entering into major endorsement and advertising deals.

These deals often enable sport stars, both men and woman, to generate a bigger income from their promotional activities than what they would have earned purely on the sports field. Profits are increased for enterprises that associate themselves with these sports stars and this appears to be a win-win situation for everyone involved. A concern of this profit driven development is that it might lead to exploitation when the attributes of a person is used without his or her knowledge or consent.

Such unauthorised use poses interesting legal questions such as whether the law should protect the individual against the unlawful use of his or her image, and if so, to what extent the law should offer such protection. Although the answers to these questions seem simple, a closer analysis reveals a controversy which makes the matter rather complex.

An image right can be described as the ability to decide when, how and by whom one’s physical, recognisable features and attributes such as image, voice, name handwriting and autograph, may be captured, reproduced or published. Image rights in sport leads to commercial relationships. For example: tennis and golf players are independent self-employed sport persons who do not depend on an employer and only sign commercial contracts. In these cases the clauses of the individual contracts signed by these sport persons, and the rules of the competition in which they will be participating, will prevail.

The use of images during and for sporting events, for example during mega sporting events in which national teams participate, there is no employment relationship between the sporting federation and the players chosen for the national side. The link between the players and their club is obviously not suspended while they are playing for the national team, with the exception of the management and control over the activities. One must further consider the individual endorsement deals of each player. Disputes usually arise when the participation of players in different sporting events (for example where a soccer player plays for a club as well as the national team) overlap, including the use of image rights by the various organisations and sponsors.

When disputes regarding the use of image rights arise, the exclusivity of the licensing of such image rights will then be considered from a contractual perspective as a preventative measure (to be discussed in Part 2 of our July 2015 issue).

In the case of Wells v Atoll Media (Pty) Ltd the court dealt with the various questions as to what extent protection of image rights should be granted. The Plaintiff, and legal guardian of her minor daughter brought an application against the Defendant, the owner of a surfing magazine called ZigZag. The claim for damages arose out of the publication of an offending photograph of the 12 year old minor girl being published in the magazine and on national television.
It was presumed that the photograph was taken while the Plaintiff and her family were vacationing in Cape St Francis and subsequently published in the April 2006 edition of the magazine. The photograph which appeared in the magazine was captioned as “All natural Eastern Cape honey”. The photograph was also screened as part of an advertisement campaign on national television.
Although one could not see the girls face as the photograph was taken from behind, many people apparently recognised the girl by the angle at which it was taken, as well as by her hair. The consequence of the publication of this photograph, without consent, was that disapproving remarks were made about the girl in mobile text messages, as well as electronic chat-rooms and communities.

The court had to determine whether the girl could be recognised in the photograph by reasonable readers of the magazine, whether the language used in conjunction with the photograph was defamatory and whether there the girl’s dignity and right to privacy were infringed. The court found that the girl could be identified, that the publication of the photograph and accompanying phrases were in fact defamatory and that the publication of the photo concerned was not reasonable. Further Davis J found that the publication of the photograph without consent, and with the clear purpose of including it to increase commercial publication, was not in the best interest of the minor and not consistent with Section 28(2) of the Constitution, and therefore constituted failure of the standard of a reasonable publisher.

When one analyses the various legal systems, it is clear that there are mainly two approaches to protection of the individual against unauthorised use of his or her image. The distinction also generally accords with the distinction between continental systems where the law is largely codified and the systems based on common law principles. In some legal systems these matters are regulated by statute, while there are attempts in other legal systems to afford protection within the confines of the common law measures of mainly the law of tort or delict.

The available protection in South Africa currently affords protection in certain circumstances where the image and identity of a well-known person may be acknowledged and protected as a trade mark, and there are a number of South African sport personalities who have sought protection in terms of the Trade Marks Act. The Trade Marks Act is used as a protectionist piece for the image and personality rights of well-known sport persons as it gives the individual a monopolistic control over his or her registered image trademark. This will thus prevent third parties from making unauthorised use of their registered image.
The question is whether this approach in the South African law provides sufficient protection in this regard. Although several uncertainties in the unauthorised use of the name or image of a famous person, which includes a famous sports personality, exists in South African law, the South African Supreme Court of Appeal in Grütter v Lombard 2007 4 SA 89 recognised an image as a trait of personality which demands protection. This judgement was also followed by the Western Cape High Court in the matter of Wells v Atoll Media (Pty) Ltd.

Despite the South African legal framework’s attempt to protect and manage the image and personality rights of its famous sport persons, it is still regarded that the South African Law does not offer sufficient protection. In the growing commerce of modern society, the reality is that the unauthorised exploitation of image rights by advertisers and vendors may cause patrimonial damages, particularly in the form of trade mark dilution which decreases the value of the sportspersons image. There also seems to be a significant loss in royalties and licence fees due to the unauthorised exploitation of a famous sport person’s image.

In conclusion: modern legal systems do recognise the concept of image rights in one form or another. The protection differs significantly from one jurisdiction to the next.

Despite the fact that other jurisdictions have made substantial progress in recognising and creating laws to protect the image rights of sport persons and other famous individuals, South Africa does not yet recognise an independent image right.

We hope that judicial acceptance of such rights will soon find favour in South Africa and that the laws will eventually align with the commercial realities of the modernised world.

Samantha Wonfor