WE HELP COMPANIESGO GLOBAL

IntroductionWhen entering into settlement discussions, the content of your discussions and subsequent correspondence is of the utmost importance. Consideration is taken towards both what is said and what is not. However, a mere acceptance of an offer or settlement proposal does not necessarily equate to the conclusion of a settlement agreement between two parties.Facts of the matterIn the case of Scania Finance Southern Africa (Pty) Ltd and GJ Vermaak Vervoer (Pty) Ltd & Gabriel Johannes Vermaak1 the Court was tasked with determining whether correspondence between the parties had created a binding settlement agreement on the basis that the proposal to settle in full and final had been accepted by both parties.The plaintiff sought payment of an amount of R6,986,748.29 plus interest in respect of a consolidated agreement for the lease of trucks and trailers. The judgment focussed on the second special plea that was raised by the Defendants who alleged that the previous correspondence between the parties was tantamount to a compromise.2 A compromise in law refers to a situation whereby the parties settle a dispute by reaching an agreement in respect thereof.A counter-proposal was made to the defendants in February 2017 and specifically stated that should the Defendants accept the counter-proposal, they would be required to conclude a formal settlement agreement, which settlement agreement should be made an order of Court, and would need to provide a warranty that they did not have any other assets other than that which had previously been disclosed. The Defendants accepted the counterproposal made by the Plaintiffs. However, upon receipt of the draft settlement agreement, the Defendants proposed several amendments to thematerial terms submitting that these terms did not reflect the original agreement that had been made between the parties.3 The Defendants further alleged that the Plaintiffs had not expressly or formally rejected their proposed amendments referred to above and therefore it had been implied that the Plaintiffs accept it.The Plaintiff contended that no settlement agreement had been concluded as the agreement was subject to the condition that it be reduced to a formal written agreement that was to be made an order of the court, and that a warranty be given. It was further argued that there had been no clear and unequivocal acceptance of the Plaintiff’s offer as the Defendants had not referred to all of the conditions, specifically the warranty, in its response to the offer.4In the case of Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; 147 LTR 503 at page 514 Lord Wright said the following:-"Businessmen often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is accordingly the duty of the Court to construe such documents fairly and broadly, without being too astute or subtle in finding defects".In “The Law of Contract in South Africa” it was stated that any attempt to vary a term of an offer while purporting to accept it does not signify an agreement thereof.5 Even if they had reached an agreement regarding the settlement, this would only novate the original debt if the intention to novate has been expressed. The express intention to contract is referred to as animus contrahendi and is a requirement for the validity of the conclusion of an agreement, in addition to any formalities that must be complied with. Thus, if the conditions set out by the Plaintiffs had been fulfilled and the settlement agreement thereafter been made an order of court, novation would be present and the settlement agreement would be binding on both parties. In terms of the law of contract, an acceptance is unambiguous and unequivocal assent to the terms of a proposal.So was the acceptance of the Plaintiff’s offer suffice within the law of contract and did it create a binding agreement between the parties? The court held that it was disingenuous of the Defendants to believe that a binding agreement had been created as it is evident that the parties intended for an agreement to only come into being upon the conclusion of a formal written agreement which would be made an order of court.ConclusionIt is the writer’s opinion that the offer made by the Plaintiff was clear and unequivocal, made with the intention to create a legally binding agreement subject to the conditions being met. However, the Defendants acceptance of the offer would only give rise to a settlement between the parties once reduced to a written agreement and made an order of court. It is therefore imperative that when engaging in settlement discussions, careful consideration is made to all relevant requirements and parties do not jump the gun. A holistic approach is necessary to review each case and the proposals that are being put forward, as is evident in the case of Scania Finance the effect of the principle of offer and acceptance is unique when an offer is accompanied by conditions.We recommend that parties to brewing or actual disputes seek expert legal advice before electing a way forward. Contact an attorney at SchoemanLaw today!

Introduction   With the now fast-paced world in the fifth industrial revolution, the legal sector is at the forefront of current global technological growth which makes for a powerful force to enable sustainable change and high levels of accountability and transparency. It is therefore no surprise that the District of New South Wales, Australia has made an unparalleled finding involving the use of social media’s ‘emoji.’   In 2002, Kirby J made remarks in the case of Dow Jones & Company Inc. v Gutnick (2002) 210 CLR 575 which still hold true today in 2020 as they did then. At the time, the whole concept of social media was in its initial phase and Facebook, Twitter and Instagram did not yet exist. Within this time, social media has made strides in a manner which has been unforeseeable, making it easy for defamation as a result of defamatory remarks to be published or accessed in ways which are unprecedented.   Facts of the matter   On 27 August 2020, in what appears to be the first of its kind, Australian judge Gibson J confirmed the unprecedented decision in Burrows v Houda [2020] NSWDC 485, that the use of an emoji is capable of breeding defamatory meanings. In this case, the plaintiff brought defamation proceedings from an exchange on Twitter with the defendant who was her employer. The defendant in response to a question “but what happened to her since?” responded with the ‘zipper-mouth face’ emoji and continued to use other emojis in three other tweets.   The first part of the analysis Gibson J had to make was twofold. Firstly, she had to question whether it was appropriate to determine a meaning based on an emoji without the benefit of expert evidence, jury or input. The court concluded that it was unnecessary in this case because there had already been rulings on the meaning of emoji in other areas of the law without this requirement. It also added that there had been prior rulings made on liability for publication and, or, defamatory meaning for non-verbal internet tools. In light of this, it was unlikely that the court would rely on linguistics or communication experts for the interpretation of emojis. Secondly, she noted that on Emojipedia the zipper-mouth face emoji carried the meaning of a “secret” or to “stop talking” in events where it was implied that the person knew the answer but was reluctant to give it. Furthermore, she accentuated this particular argument on the finding in the case of the School of Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 541 [25] where it was confirmed that an emoji has the ability to convey a set meaning. In opposition to her findings, the use of Emojipedia has resulted in the academic criticism of judges (Smyth 2018: 211). However, the nature of modern communication makes it absolutely necessary to consult internet dictionaries such as Emojipedia to determine what the ordinary reasonable person would make of these symbols.   Applicable principles   Central to this case is the question of whether the defendant’s zipper-mouth face emoji together with other emojis in corresponding tweets as a reply to a request for updates on disciplinary proceedings constitutes defamation. The following claims were made: The “zipper-mouth face” emoji is worth a thousand words and that it implies a finding which may be damaging to the plaintiff but the defendant may not disclose the result and must hint at it by posting the emoji. The post which refers to the swearing of false affidavits would infer that a reasonable social media reader would think that the plaintiff signed the false affidavits and would therefore also assume responsibility for the part played in the presentation of the affidavits to the court. In cases where the tweets that identify a prosecution as a result of the signing of false affidavits, the reasonable social reader would assume that the plaintiff is also likely to be prosecuted. All these claims were found to constitute defamation.   Conclusion   What does this mean for South African law? South African law authorises its courts to merely consider foreign law in interpreting the Bill of Rights in the Constitution where it states in section 39(1)(c) that a court may consider foreign law. As the use of emoji increases and social media continues to become a dominant form of communication, a case similar to this may make an appearance in South Africa and therefore it is important to prepare for these instances before they occur.  Directors, board members and employers in companies should therefore address the use of social media in the workplace and on social media platforms.