“Running into debt isn’t so bad. It’s running into creditors that hurts” (Unknown)

• An estate agency claimed R2.147m in sales commissions from a property developer.
  
  
• The developer in turn sued the agency for R1.023m for a variety of counterclaims against it.
  
  
• During settlement negotiations the developer admitted its liability for the commission claims but suggested, on a without prejudice basis, that the two sets of claims be set off against each other, and tendered payment of the net balance.  
  
  
• The agency rejected this offer, a court battle ensued, and the developer raised the defence that most of the agency’s claims had prescribed as being older than three years.  
  
  
• The SCA rejected the prescription defence, holding that the three year period had been interrupted by the developer’s admission of liability - despite it having been made without prejudice.  
  
  That’s new law, and it’s important both -
  
  
  • For creditors to recognise the new opportunity they now have to extend prescription, and
    
    
  • For debtors to recognise the new danger of hiding behind the “without prejudice” shield when making admissions.
    
    
• The end result - the claims haven’t prescribed and the developer must fight on in the main action.

“… you are going to be a very sorry man you (sic) probably going to sit in jail tonight” (a “dirty dozen threat” quoted in the judgment below)

• A business which processes mine dumps to find and then sell rough diamonds employed a ‘Final Recovery Manager’ in a senior position of trust.
  
  
• Monitoring of workplace CCTV surveillance raised suspicion that the manager had been stealing diamonds.  
  
  
• Confronted, he made a videotaped confession, signed a R5m acknowledgment of debt, paid over R530,000 cash as part proceeds of stolen diamonds, and assisted in the recovery of other stolen diamonds.  He later gave his employer a copy of his full confession to the police and also consented to a second interview, similarly recorded.
  
  
• He was prosecuted but acquitted after the criminal court found that his statement to the police had not been freely and voluntarily made.  The CCTV surveillance footage was not put in as evidence at the criminal trial – relevant because the civil court later found it to provide evidence of theft.
  
  
• The employer then sued the manager for R6.015m.  He objected to the admission in evidence of his various confessions, admissions and statements on the grounds of unlawful duress.
  
  
• The High Court however allowed the admissions in as evidence, a decision upheld on appeal by the SCA.

• “The admissibility of evidence in a criminal trial stands on a different footing from a civil dispute”, partially because “a criminal matter is a contest in which the might of the State is pitted against an individual. In a contest of this kind, a bad result for an accused person may lead to a loss of freedom. Such a consequence is incomparably different from any outcome in a civil dispute.”
  
  
• “An employer is not only entitled to confront an employee about an allegation of wrongdoing, but is also obliged to do so, even before a formal disciplinary hearing is convened.”  That’s because of the basic rule in our law that both sides of a story must be heard and taken into account.
  
  
• There were no threats of physical violence nor of anything unlawful. 
  
  
• What was said to the employee immediately before he began to confess to his theft was not extortion or blackmail, nor was it contra bonos mores (against public policy) – “it did not result in [the employer] exacting or extorting something to which it was not otherwise entitled. The contrary is true.”
  
  
• “Even in our law of criminal procedure an exhortation to tell the truth will not exclude a confession … Not even a threat of the probability of arrest constitutes undue influence … After all, the test is whether there is ‘any fair risk of a false confession.’”

“It has regrettably become all too common in divorce litigation that allegations are traded back and forth between the parties, with scant regard for the obligation to comply with orders issued by the court … The rights of the child become relegated to matters of secondary, or sometimes no importance, while the battle between the spouses takes centre stage” (Extracts from judgment below)

• A husband was ordered by the High Court to pay his wife R10,000 p.m. as maintenance for her and for their minor son, pending finalisation of protracted divorce proceedings. 
  
  
• After he had run up arrears totalling R393,500 the wife asked for him to be jailed (on a periodical imprisonment basis) for contempt of court.
  
  
• The Court was on the facts totally unimpressed with the husband’s pleas of poverty, and in any event pointed out that our laws require compliance with court orders which, “whether correctly or incorrectly granted, have to be obeyed until they are properly set aside”.  If the husband was genuinely unable to pay he should have applied for a variation of the original maintenance orders.
  
  
• Note that to succeed with a contempt of court application you need to prove two things beyond reasonable doubt, namely that the defaulter has both -
  
  
  • Deliberately and wilfully disregarded the court order, and
    
    
  • Acted “male fide” (in bad faith) to deliberately and intentionally violate the “court’s dignity, repute or authority”.
    
    
• Finding that the wife had on the facts succeeded in this regard, the Court ordered the husband to pay, within 30 days, the R393,500 arrears, an outstanding R161,000 contribution to costs, arrear interest, and legal costs on the punitive “attorney and client” scale.  Failure means him spending 30 days’ worth of weekends (from 5 p.m. on Fridays to 7 a.m. on Mondays) in a prison cell.