End-to-end Encryption: What does this mean?

You may have seen something like this when you use the popular messaging app, Whatsapp:


What is this and what does this mean?

Before we start, it might be a good idea to read this notice from Whatsapp.

Locally, the encryption of messages and information are governed by the Electronic Communications and Transaction Act of 2002 (the ECT Act) and the Interception of Communications and Provision of Communication-related Information Act of 2002 (or more commonly known as RICA).

The ECT Act – more specifically, Chapter 5 of the Act – provides regulation in terms of service providers, products and services that offer some sort of way of encrypting data. This same Chapter of the Act also requires that providers of these services and products must register with the Minister of Communications in order to be able to provide these services in South Africa.

Now, as many of us may know, Whatsapp is one of the largest messaging apps in the world, and as such, they aren’t based in South Africa, therefore, Whatsapp Inc. aren’t subject to Chapter 5 of the ECT Act.

Should a law enforcement body wish to obtain decrypted information from a South African entity that is registered with the Minister of Communications, the provisions set forth in Section 21 of RICA would apply as it sets forth the requirements that are needed to submit an application to gain access to the encrypted information.

So, how does this all fit together?

With end-to-end encryption, the party who employs this type of encryption, as in Whatsapp’s case, can rely on a strong defence to avoid disclosing any sort of encrypted info as the user’s data is not stored on their system and that they do not have access to it.

Now, as helpful as it is and regardless of the fact that there are very positive benefits to this type of privacy, it can hamper legal authorities as they might not be able to easily gain access to encrypted data which could be exchanged between criminal elements who use services such as Whatsapp or platforms that are similar.

However, in such cases as these where privacy of one versus many are concerned, the constitutional rights of the individual will be weighed against that of the public to find a delicate balance between protecting an individual’s right to privacy and fighting crime.

The Consumer Protection Act: Your Right to Cancelling an Agreement

We’ve all done it: we signed ourselves into a fixed contract that seems like a jail sentence of sorts. Gym contracts, cell phone contracts, home security contracts, property leases and more. If you’ve ever been in this situation, there is hope. The Consumer Protection Act provides you with a lifeline out of the despair.

It’s important to state that the Consumer Protection Act classifies a fixed term agreement as a contract of a “definite duration”, with the above mentioned contracts, and more, all falling into that same category.

The Act allows prohibits fixed-term agreements to go beyond a certain period, which is per regulations set at 24 months from the date the consumer signs the contract. This is valid unless a longer period of time was agreed upon between the consumer and the supplier whom the contract was signed, of course. Further to this, if an agreement needs to be longer than its prescribed period, the supplier would need to prove that it will carry some kind of financial benefit to the consumer.

A consumer has the right to cancel a fixed term agreement before its expiry date, by giving the supplier 20 business days’ written notice. A consumer also has to the right to reserve their reason for cancellation.

On the other side of the coin, a supplier can also terminate an agreement, if the consumer is at fault for any kind of breach of contract on their end. This can only happen once a supplier has given the consumer 20 business days to rectify any issues. Such actions can also only happen once those 20 days have elapsed.

It’s important to note that if an agreement is cancelled by either the consumer OR the supplier as per the above mentioned conditions that

  1. the consumer remains liable to the supplier for any amounts still outstanding up to the date of cancellation (normally airtime used, etc.)
  2. the supplier may enforce a penalty or a fee for any good, services or discounts given to the consumer during the time that the agreement was in place (fee discounts or a free cell phone, etc.)
  3. the supplier must credit the consumer any amount(s) that the consumer is owed and that is property of the consumer up to the date of cancellation (such as prepaid airtime or unused airtime, etc.)

Now, should the supplier impose any penalty or charges onto the consumer, the following must be considered to ensure that these charges are reasonable:

  1. that the amount the consumer owes the supplier up until the date of the cancellation
  2. the value of the transaction up to the date of cancellation
  3. the value of the goods that will remain in the consumer’s possession once the agreement has been cancelled
  4. the value of the goods that are returned to the consumer
  5. the amount of time left on the consumer’s agreement, as per the original agreement
  6. any losses or benefits to the consumer as a result of the consumer having entered into the agreement
  7. the nature of the goods or services provided
  8. the amount of time of notice of cancellation was given by the consumer
  9. the amount of time it will take the service provider or supplier to find another consumer, and
  10. the way things are done, generally, in the relevant industry in which the supplier falls within.

Even with the above mentioned points taken into account, the amount the supplier or service provider charges the consumer must not nullify the consumer’s right to cancel a fixed term agreement. The regulations of the Act prohibit the supplier to charge a consumer the full amount they owe in respect to how much time still remains on the agreement.

To learn more about cancelling fixed term agreements, we recommend you read this article on GoLegal’s website.

For more info, you can also read the following article on GoLegal’s website on how you can cancel your cell phone contract.

Sequestration: a dead end or is there relief?

Have you ever wondered what would happen if you or someone you know were to be sequestrated? Does sequestration mean that it’s the end of the road for you or will your debt simply be written off so that you can start with a clean slate?

Sequestration is oftentimes something that the Average Joe doesn’t fully know about and there’s a wrongful perception that’s been created that it can be an easy way to escape your responsibilities.

So, let’s break it down.

Important to know is that sequestration can only happen by way of a court order. A person cannot declare himself bankrupt. A sequestration order can be granted on the debtor’s request or through a person’s creditor.

The court tests whether a person’s estate is insolvent is to determine whether a person’s liabilities exceeds his assets. This means that a person is “factually insolvent.” A sequestration order is also grantable when a person’s assets exceed his liabilities, but isn’t in a position to pay his debts due to one of many reasons. This is known as being “commercially insolvent.”

Now, in the case of a person not being able to pay his debts or accounts is only one of many indicators that a person is possibly solvent. A sequestration order will only be granted if a court decides if it’s beneficial to the creditors, meaning that the process of sequestration is of greater benefit to the creditors than it is to the insolvent.

Sequestration sees a person’s assets being liquidated and to then redistribute the pro rata revenue generated from the sale of said assets among the creditors.

Once a provisional sequestration order is granted, a curator takes charge of the insolvent’s estate and their affairs. The insolvent party no longer has any sway or responsibility or debts upon him/herself and they may not deal with the estate’s assets either. The insolvent party is almost completely unable to do anything from this point hence forth.

This seems extreme, but insolvency is NOT permanent. An insolvent party can be rehabilitated and will then still be able to run a business as before. A person who is insolvent will automatically be rehabilitated after a 10 year period; this is from the date when a provisional sequestration order was granted.

An insolvent party can approach the court, under different circumstances or periods, for rehabilitation, but the court has to be convinced that the insolvent party has been rehabilitated. IN addition, the curator and creditors can also object to this, and the court will also take this into account before making its final decision.

It is important to note that it’s a benefit of sequestration, and not a primary purpose, that once an insolvent party has successfully been rehabilitated he/she is freed from all of the debt that existed PRIOR to his sequestration order, with exceptions, of course. A person won’t have any of his previous assets any more, but they’ll be able to start from scratch.

Sequestration is never the end of the world. It is a displeasing experience to go through and it can have a dramatic effect on one’s life for up to 10 years.

Dismissal without a disciplinary hearing

Imagine the scenario: you’ve been fired as manager from a retail company. Due to stock theft that has occurred on your watch, the company is holding you responsible and they claim that you were negligent in your duties. When you were asked to leave there were no warnings or a disciplinary hearing.

What are you to do?

According to South Africa’s labour laws, an employer cannot dismiss you without a fair disciplinary hearing. Employees can be dismissed for one of three reasons:

  1. Misconduct
  2. Incapacity
  3. Operational requirements

The scenario above the dismissal is for alleged misconduct.

If misconduct is identified within a company, an employer should investigate the allegations against the employee. Only after it has established that there is a case for which the employee has to answer to, said employee must be notified of the allegations against him/her. The company must then invite the employee to present their side of the story. This gives both sides to state their case in light of the allegations.

An employee also has to be informed of their rights at the disciplinary hearing, which includes having a co-worker represent him/her as well as the right to call witnesses in their defense.

At the hearing, an independent chairperson has to be appointed by the employer to fairly direct the proceedings of the hearing. This ensures that both parties in the case have an opportunity to state their side of the story. This chairperson can then make a finding by deciding whether the employer has proven that the employee is guilty of the misconduct and can also decide upon the disciplinary action that should be taken.

If this process isn’t followed, granted that there aren’t any circumstances that justify the absence of it, the employee has the right to challenge the dismissal as said employee wasn’t given a fair opportunity to defend him/herself. South Africa’s labour laws are structured in such a way that it requires each dismissal to be fair and that each person has the opportunity to respond to the allegations brought against you and that they have to be proven by the employer.

If this is NOT the case, the employee can challenge the dismissal at the CCMA. It is always a good idea to consult or seek the guidance of a professional labour specialist to help you in your case.