Saying “sorry”

10 March 2017 ,  Perino Pama 1366

In Elton John’s words: “Sorry seems to be the hardest word”. From experience, I have noticed that clients sometimes pursue matters to the bitter end if they were injured by a person who did not have the good manners to say ‘I am sorry’.  It may have been an accident but quite often the person who has injured them disappears and does not ask about the injured person’s health or offer condolences or show an interest in their condition.  To make matters worse, the perpetrator sometimes goes on the offence and attacks the complainant to deflect attention from their own culpable behaviour.

When we eventually get to Court, the Defendant/ perpetrator says “My attorney advised me not to admit liability or to say anything which could compromise my position”.  The perpetrator simply accepts the advice from their attorney and does not do what is quite obviously the correct thing to do i.e. apologise and assist the injured person where possible. 

When you know that you have done something wrong it is sometimes in your best interests to apologise.  If you are concerned about attracting liability, then one may reserve your rights and add a disclaimer to the effect that your apology must not be construed as an admission of any of the allegations against you and is made without admitting liability. 

However the way in which you apologise may influence matters. Pieter Cronje describes a sincere, unconditional and timely apology as “a communication skill”.  

There is a trend in our legislation to allow for restorative justice and interaction between affected people.  

When we are dealing with damage caused to people, for example defamation, our Courts have referred to a defunct delictual remedy known as “Amende Honoroble” which was aimed at restoring the dignity of the Plaintiff by rendering an apology    and the African principle of Ubuntu.

In Le Roux v Dey  , the Constitutional Court considered these concepts in the context of the fundamental constitutional values of dignity, fairness and reconciliation and reaffirmed the values of restorative justice. 

Judge Sachs in Diko v Mokhatla   recognised that these two concepts encourage a personal encounter between the parties with a view to resolve their disputes in public and restoring harmony in the community. Both cases recognised that there is a need for the development of a remedy in the shape of an apology in lieu of damages in certain circumstances.

In the case of Buthelezi v Porter and Others   the Defendant withdrew the defamatory statement at the last moment without tendering an apology. The Court held that attracted heavier damages than an unsuccessful plea of justification. A punitive costs order was granted against her.

In Isparta v Richter and Another   the Defendant made disparaging and malicious comments on Facebook about the Plaintiff on Plaintiff’s Facebook wall. The fact that the Defendant did not retract the statements or apologise clearly influenced the Court to order R 40 000 damages.

We need to remind ourselves of the importance of good manners and compassion for our fellow human beings.  We all make mistakes and most often people are willing to forgive you if you recognise your mistakes.  It never ceases to amaze me how accommodating people generally are if you apologise (there are however exceptions – so be careful).  The purpose of this letter is not to offer you legal advice and I am sure your lawyer may not agree with what I have just said.  I do however believe that there comes a time when you simply have to do what is the right thing to do.

 

 
Tags: Court, Law, Litigation
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