The "Without Prejudice" Rule Under Fire - Recent Developments in South African Law
Submitted by: Anastacia Willemse, SchoemanLaw Inc. Save to Instapaper
The principle of "without prejudice" has long been a cornerstone of South African law, allowing parties to negotiate settlements without fear that their communications will be used against them in court. However, recent judgments by the Supreme Court of Appeal (SCA) and the High Court have raised important questions about the limits of this rule, particularly in cases involving bad faith or misrepresentation.
Understanding the “Without Prejudice” Rule
The "without prejudice" rule is designed to protect genuine settlement negotiations from being admissible as evidence in court. This principle encourages parties to resolve disputes amicably without the risk of their statements being used against them. For communications to qualify as "without prejudice," they must:
- Be part of a genuine attempt to settle a dispute.
- Clearly indicate the intention to invoke the "without prejudice" privilege.
Recent Judicial Clarification
- Bad Faith and Misrepresentation: Courts have increasingly recognized exceptions to the "without prejudice" rule in cases where communications contain evidence of fraud, misrepresentation, or undue influence.
- Admissibility in Costs Disputes: The High Court has also addressed the admissibility of "without prejudice" communications in determining costs orders.
- Commercial Negotiations: Recent cases have highlighted the importance of assessing the substance of "without prejudice" communications rather than relying solely on the label. Courts have emphasized that the privilege does not apply if the communication is not genuinely aimed at settlement.
Litigation Strategies
For legal practitioners, navigating the complexities of the "without prejudice" rule requires a nuanced understanding of its exceptions. Key strategies include:
- Ensuring that settlement communications are genuinely aimed at resolving disputes.
- Avoiding admissions of liability that could interrupt prescription or be used in evidence.
- Leveraging case law to argue for or against the admissibility of "without prejudice" communications.
Conclusion
The evolving jurisprudence on the "without prejudice" rule reflects the courts' commitment to balancing the interests of encouraging settlement and preventing abuse. As South African law continues to refine this principle, legal practitioners must stay informed about these developments to represent their clients effectively in commercial negotiations and Litigation.
For further assistance, consult an attorney at SchoemanLaw.
Anastacia Willemse | SchoemanLaw Inc
Candidate Attorney: Commercial law
SchoemanLaw Inc Attorneys, Conveyancers and Notaries Public is a boutique law firm offering its clients access to high quality online legal documents and agreements, together with a wide range of legal services. The firm has an innovative and entrepreneurial mindset that distinguishes it from other law firms. We apply our first-hand understanding of the challenges facing entrepreneurs (regardless of their business size) to develop proven, practical solutions incorporating legal compliance, risk aversion and business sense. We achieve this by offering clients tailored, yet holistic support comprising of legal gap analysis, the design of tailored legal solutions and the practical implementation thereof through training and automation. With your personal interests in mind, our ultimate aim is to implement measures that protect the results of your hard work as effectively as possible.
Latest Press Articles
- Bridging Work and Home - A Conveyancing Approach to Employee Tenancies.
- Suretyships in Commercial Contracts - What Every Business Should Know
- Navigating South Africa’s Labour Law Reform - Proposed Amendments to the Labour Relations Act
- Review Applications in South African Labour Law - Legal Constraints and Procedural Discipline
- Parental Alienation in South Africa - A Silent Form of Emotional Abuse in Family Law Disputes
- Market Trust Starts Inside - Aligning Your Legal Documents with Your Marketing Message
- Exploring Suretyship - Capacity, Liabilities, and Types of Sureties.
- Navigating the Storm - How Rule 43 and Rule 58 Applications Provide a Lifeline During Divorce
- Beyond the Traditional - Execution of Judgments Through Attachment of Bank Accounts
- Guardianship vs Custody in South Africa - What Parents Need to Know When Travelling Abroad with a Minor
- What steps can I take if someone registers a domain name that is too similar to mine?
- Understanding the Revised Automotive Aftermarket Guidelines for Competition (R2R)
- Considering Artificial Intelligence, the responsibility of Employee management
- Mistake, Misrepresentation, and Duress - When Can a Business Escape a Contract?
- Consistency in Workplace Discipline - Balancing Fairness and Discretion
The Pulse Updates
- New Report Reveals Msme Funding Realities In South Africa – And What Must Change (May 30, 2025)
- Opinion Piece: Incorporating Ai Into Workforce Planning (May 26, 2025)
- Bridging The Gap: Why Finance And Hr Must Collaborate For Business Success (May 19, 2025)
- Reclaiming Johannesburg’s Running Narrative Powered By The Streets. Refreshed By Pura. (May 16, 2025)
- Double Gold Triumph For Hansgrohe Innovations (May 16, 2025)