What are your rights when it comes to forced COVID-19 testing?
As the COVID-19 pandemic is spreading across the globe, Minister of Health, Zweli Mkhize has expressed his concern that there is not enough testing being done in South Africa. By the 14th of April, 83,663 tests had been conducted in South Africa according to www.worldometers.info.During the early stages of this pandemic, it was far clearer which individuals should be tested – individuals who show symptoms who have travelled overseas. Now, it is far more difficult to determine which individuals to target and this could result in disastrous consequences if at-risk individuals and communities are overlooked. to establish which individuals to target when it comes to testing.As more tests will be conducted in the following weeks, you might be wondering if you can be forced by the government to undergo testing, even if you show no symptoms of the COVID-19 virus. In short, yes you can. As of late, to undergo forced testing of the COVID-19 virus is not considered to be in contravention of your constitutional rights as a South African citizen. During President Cyril Ramaphosa’s Nation Address on the 15th of March, he declared a national state of emergency in response to the COVID-19 pandemic. On the 23rd of March, President Ramaphosa announced the unimaginable by stating that South Africa will enter a nationwide lockdown from midnight on 26 March until midnight on 16 April. On the 9th of April, President Ramaphosa announced that the lockdown will be extended by another 2 weeks, until the end of April. After the declaration of the pandemic as a national state of disaster, the government issued regulations to be incorporated in the Disaster Management Act to flatten the curve and manage the spread of the virus. It comes as no surprise that these regulations limit several of our constitutional rights as South Africans e.g. right to privacy and right to freedom of movement during the lockdown period. It is important to note that section 36 of the Constitution states: “36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.” (Constitution of the Republic of South Africa, 1996) The regulations included in the Disaster Management Act thus qualifies as a law of general application and can limit the rights of South Africans as stated in the Constitution. In conclusion, under the new regulations, individuals cannot refuse to be tested for COVID-19. If the individual tests positive, the individual can also not refuse treatment or quarantine as these measures are put in place to manage the spread of the virus. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Am I bound to the terms and conditions I never actually read?
In recent years the internet has transformed the commercial landscape and redefined the way we do business. The movement away from traditional paper and ink has led to the electronification of everything, including the conclusion of contracts. Online shopping, signing up for Uber, creating a Facebook profile – all subject to the familiar “I have read and understand the terms and conditions”- button. We have all been guilty of mechanically accepting terms and conditions online, without bothering to read it. The question then becomes: are you bound to those terms that you never read, but accepted anyway? Under common law, the question of whether a contract was concluded, boils down to whether the parties reached consensus on the material terms of the contract. Standard terms and conditions are incorporated into a contract when they are expressly mentioned and accepted (which is usually done by signature) or tacitly through the parties’ conduct. Based on caveat subscriptor, parties will normally be held to the terms of the contract if they signed it, even though they might not have read the terms. The Electronic Communications and Transactions Act 25/2002 (“ECTA”), which came into force on 30 August 2002, does away with the question of whether an online agreement can be viewed as a contract. Section 24(2) of ECTA states that expression of intent in a data message is not without legal force merely because it is not evidenced by an electronic signature, but by other means from which a person’s intent can be inferred. In other words, if you click on the “I agree”- button next to the terms and conditions on a website, your assent to those terms can be inferred from the circumstances. Regardless of whether you have read them or not. These contracts are referred to as “clickwrap contracts” and are usually enforceable. Other common electronic contracts include “scrollwrap contracts” which require the user to scroll through the terms and conditions before clicking “I agree”. “Browsewrap contracts” are concluded where the user agrees to terms simply by using a website and the terms are available through a hyperlink text at the bottom of the screen. “Sign-in-wrap contracts” usually consists of a sign-in screen that requests a username and password to be filled in and contains text which states that by clicking “sign-in” the user agrees to the terms and conditions. Although many of these agreements have not been tested by the South African courts, ECTA affords them with express recognition and provides guidelines which aid in determining their enforceability. Section 11(2) of ECTA provides that information is not without legal force and effect merely on the grounds that it is not contained in the data message purporting to give rise to such legal force and effect but is merely referred to in such data message. Oftentimes terms and conditions are not prominently displayed on a website’s page, but there is a hypertext link present on the website which redirects users to the terms and conditions (as is the case with the so-called “browsewrap contracts”). The effect of section 11(2) is that regardless of whether a user actually clicked on such link and read the terms and conditions, they may be deemed to have read it and assented to it if the requirements set out in section 11(3)(a) and (b) are met. The requirements in this section establishes an objective test which refers to the nature of the notice and whether it is sufficiently clear and distinctive enough for a reasonable person to notice. In addition, the terms must be accessible in a form so that it can be read, stored and retrieved. A hyperlink that is small and hidden in an unexpected corner of the website’s page will for example not meet these requirements and a user’s assent to such terms cannot be inferred in such circumstances. On the other hand, if a hyperlink is clearly visible on a webpage, displayed in a large and legible font, the user’s attention is drawn to it and it is accessible, a user will most likely be held to its terms regardless if they ever read the terms or clicked on the hyperlink. Although there is still a great amount of uncertainty regarding online terms and conditions and their enforceability, internet users would be well advised to view “I accept the terms and conditions”- button, in the same light as signing a lease agreement. You want to know what you are getting yourself into before you sign, and similarly should know what you are agreeing to before you click. Sources: The Electronic Communications and Transactions Act 25/2002 Tana Pistorius, Click-Wrap and Web-Wrap Agreements, 16 S. Afr. Mercantile L.J. 568 (2004). The Law of Contract In South Africa (Paperback, 3rd Edition), D. Hutchison, C. Pretorius, T. Naude, J. du Plessis, S. Eiselen, T. Floyd, C. Maxwell This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Impact of the coronavirus on contractual obligations
The novel coronavirus, also known as COVID-19, has caused major disruptions worldwide since its outbreak in December 2019 in Wuhan, China. The virus has also recently spread to South Africa and our government has reacted swiftly by introducing a state of emergency and promulgating certain regulations. Restrictions initially only limited the number of people who were allowed to be in attendance at social events. These restrictions were increased to a complete “lockdown” between 27 March 2020 and 16 April 2020. The above restrictions as imposed by the South African Government has certain severe consequences. One such instance is weddings were couples (or their parents) enter in a number of contractual agreements for services such as catering, décor and venue hire. Deposits are almost always payable for these services and there are often clauses according to which the deposit is forfeited in the event of the wedding being cancelled on short notice or penalties if the wedding is moved to a different date. The question thus arises: what happens when one must cancel or postpone a wedding due to the outbreak of a deadly virus and government’s restrictions following such an event which has the effect of prohibiting your wedding? The answer to the above question can be found in the law of contract. Contractual agreements can be varied or discharged by operation of law in cases where there is a supervening impossibility (also sometimes referred to as an act of God).[1] The general position in South African law is that if performance in terms of a contract becomes objectively impossible after the conclusion thereof due to an unforeseen and unavoidable event, then the obligation to perform in terms of the contract will be extinguished.[2] It is thus clear from the above that two requirements must be met before a contractual agreement will be terminated due to a supervening impossibility. Firstly, performance must be objectively impossible. This requirement is only met if no one can offer the required performance. It is not sufficient if only the specific party to the contract cannot offer the performance anymore.[3] Performance will also be deemed to be objectively impossible in circumstances where it is factually possible but has become unlawful due to new legislation.[4] This requirement is present in the current circumstances where performance, depending on the size of the wedding and type of venue, has become impossible due to legislation effectively prohibiting the event. The second requirement is that the impossibility must be unavoidable for the reasonable person. This means that the impossibility must not have been caused due to the fault of one of the contracting parties. It is often said that the impossibility must be the result of vis maior or casus fortuitus.[5]It is clear that this requirement is met in the current circumstances since the reasonable person would not have foreseen the outbreak of a virus on a global scale which has brought entire nations and economies to a halt. Such a reasonable person would also not have been able to foresee the promulgation of legislation restricting social movement and events. The result of a supervening impossibility as discussed above is that the contractual relationship comes to an end.[6] The termination of all contractual obligations creates new obligations to return whatever has been delivered in terms of the contract up until that point, such as, for example, a deposit which was paid to a wedding venue. This obligation to return can be enforced by way of an action for unjustified enrichment.[7] In conclusion, those who have paid deposits or even the whole sum owed in terms of a contract which cannot proceed anymore due to the coronavirus and subsequent legislative restrictions should be able to get refunded. However, this is subject to the contract in which the parties may have agreed to deal with a supervening impossibility differently. Members of the public are encouraged to consult an attorney to discuss their specific contract and circumstances. Reference List: D Hutchison & CJ Pretorius (eds) Kontraktereg in Suid-Afrika R H Christie The Law of Contract 2001 Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA). Bayley v Harwood 1954 (3) SA 498 (A). [1] R H Christie The Law of Contract 2001 p 280. [2] D Hutchison & CJ Pretorius (eds) Kontraktereg in Suid-Afrika 2012 p 402. [3] 403. [4] 403. See also Bayley v Harwood 1954 (3) SA 498 (A). [5] D Hutchison & CJ Pretorius (eds) Kontraktereg in Suid-Afrika 2012 p 404. [6] 405. [7] Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA) This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)