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October 2015 Breaking the Golden Egg – the Pitfalls of Written Admissions in S 37D of the Pension Funds Act

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October 2015 Breaking the Golden Egg – the Pitfalls of Written Admissions in S 37D of the Pension Funds Act THE SA ATTORNEYS’ JOURNAL OCTOBER 2015 BREAKING THE GOLDEN EGG – THE PITFALLS OF WRITTEN ADMISSIONS IN S 37D OF THE PENSION FUNDS ACT Encumbering proceedings Meeting between President for the plaintiffs – recent changes to and Chief Justice the summary judgment procedure Know the rules – The invalidity of a taxpayer’s objection understanding the correct interpretation of r 34 of the uniform rules of court Pain and no gain – should there be Dispossessed and unimpressed: compensation for innocent spouses The mandament van spolie remedy against third parties? Using the law to strengthen good governance practices in the SADC region CONTENTS THE SA ATTORNEYS’ JOURNAL OCTOBER2015 Issue 557 THE SA ATTORNEYS’ JOURNAL ISSN 0250-0329 Regular columns Editorial It’s that time of the year again for AGMs and conferences 3 Letters to the editor 4 10 13 SADC LA AGM 6 News Meeting between the President and Chief Justice 12 Women in law and society 12 Bram Fischer lecture 15 Legal practice of the future discussed at practice management conference 16 The role of law in curbing xenophobia 18 Transformation discussed at JAA AGM 19 16 LSSA news LSSA meets Brazilian and Chinese delegations as part of its BRICS Legal Forum agenda 22 LSSA Council finalises position paper on the powers and functions of Public Protector’s Office 23 Attorneys’ profession pays tribute to Justice Thembile Skweyiya 24 LSSA to co-host 6th Forum on China-Africa Cooperation Legal Forum 25 Assessment revolutionised at the School for Legal 17 18 Practice 25 People and practices 26 Practice management Normal practice or unsound and flawed routines 26 Leading female leadership development 28 The law reports 43 Case note Pain and no gain – should there be compensation for inno- cent spouses against third parties? 48 Constitutional Court in Mhlongo v S; Nkosi v S restores 30 34 common law position existed before Ndhlovu and Others v S 49 Tax law 52 New legislation 53 Employment law update 54 Recent articles and research 57 Opinion 59 37 40 Books for lawyers 60 DE REBUS – OCTOBER 2015 - 1 - EDITOR: FEATURES Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) Breaking the golden egg – The pitfalls of PRODUCTION EDITOR: NEWS EDITOR: 30 Kathleen Kriel – Nomfundo Manyathi-Jele – written admissions in s 37D of the BTech (Journ) (TUT) NDip Journ (DUT) Pension Funds Act BTech (Journ)(TUT) SUB-EDITOR: SUB-EDITOR: here are various protective mechanisms in place Kevin O’ Reilly – Isabel Janse van Vuren – where retirement benefits are beyond the reach of MA (NMMU) BIS Publishing (Hons) (UP) creditors. Among these protective measures are T EDITORIAL SECRETARY: the provisions of s 37A(1) of the Pension Funds Act 24 Shireen Mahomed of 1956. The protection afforded by s 37A(1) is, however, EDITORIAL COMMITTEE: not absolute and there are certain well-defined exceptions Mohamed Randera (Chairperson), Peter Horn, which are spelt out in s 37D of the Act. In this article, Danie Olivier, Lutendo Sigogo Zamazulu Nkubungu asks: What are the requirements in EDITORIAL OFFICE: 304 Brooks Street, Menlo Park, Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. Tel respect of deductions from a member’s pension benefits (012) 366 8800 Fax (012) 362 0969. due to the member’s theft, fraud, dishonesty or miscon- E-mail: [email protected] duct? DE REBUS ONLINE: www.derebus.org.za CONTENTS: Acceptance of material for publication is not a guarantee Encumbering proceedings for the plaintiffs – that it will in fact be included in a particular issue since this depends on 34 the space available. Views and opinions of this journal are, unless otherwise recent changes to the summary judgment stated, those of the authors. Editorial opinion or comment is, unless other- wise stated, that of the editor and publication thereof does not indicate the procedure agreement of the Law Society, unless so stated. Con tributions may be edited for clarity, space and/or language. The appearance of an advertisemen­­ t in he origins of the summary judgment as a procedural this publication does not neces sarily indicate approval by the Law Society remedy is well entrenched within our current legal for the product or service ad ver tised. system. In the article, Eugene Dlamini discusses the De Rebus editorial staff use online products from: T • LexisNexis online product: MyLexisNexis. Go to: www.lexisnexis.co.za; recent amendments to the summary judgment procedure in and r 14 of the Rules Regulating the Conduct of Proceedings of • Juta. Go to: www.jutalaw.co.za. the Magistrates’ Courts of South Africa and what attorneys PRINTER: Ince (Pty) Ltd, PO Box 38200, Booysens 2016. should know as it has the potential to encumber proceed- AUDIO VERSION: The audio version of this journal is available free of charge to all blind and print-handicapped members of ings for the plaintiffs/applicants. Tape Aids for the Blind. ADVERTISEMENTS: Dispossessed and unimpressed: The Main magazine: Ince Custom Publishing 36 Contact: Ian Wright • Tel (011) 305 7340 • Fax (011) 241 3040 Cell: mandament van spolie remedy 082 574 6979 • E-mail: [email protected] Classifieds supplement: Contact: Isabel Janse van Vuren andament van spolie is an old common law rem- Tel (012) 366 8800 • Fax (012) 362 0969 edy commonly used by a person who has been PO Box 36626, Menlo Park 0102 • E-mail: [email protected] dispossessed of goods without following due le- ACCOUNT INQUIRIES: David Madonsela M Tel (012) 366 8800 E-mail: [email protected] gal procedure. This article, written by Valentine Mhun- CIRCULATION: De Rebus, the South African Attorneys’ Journal, is gu, seeks to answer the question whether the remedy of published monthly, 11 times a year, by the Law Society of South spoliation is available to a person who has been dispos- Africa, 304 Brooks Street, Menlo Park, Pretoria. It circulates free of charge to all practising attorneys and candidate attorneys and is sessed of money, in the form of electronic funds, by his or also available on general subscription. her own bank. This article seeks to establish whether the ATTORNEYS’ MAILING LIST INQUIRIES: Gail Mason aggrieved person may use mandament van spolie to claim Tel (012) 441 4629 E-mail: [email protected] All inquiries and notifications by practising attorneys and candi- back the funds that he or she has been dispossessed of by date attorneys should be addressed to the relevant law society his or her own bank. which, in turn, will notify the Law Society of SA. SUBSCRIPTIONS: Know the rules! Understanding the correct inter- General, and non-practising attorneys: R 838 p/a 40 Retired attorneys and full-time law students: R 644 p/a pretation of r 34 of the uniform rules of court Cover price: R 88 each Subscribers from African Postal Union countries (surface mail): he Road Accident Fund (RAF) is a public entity es- R 1 332 (VAT excl) tablished in terms of the Road Accident Fund Act Overseas subscribers (surface mail): R 1 626 (VAT excl) 56 of 1996 as amended, to compensate victims of NEW SUBSCRIPTIONS AND ORDERS: David Madonsela T Tel: (012) 366 8800 • E-mail: [email protected] road accidents where serious injury or death arose as a consequence of wrong doing or fault. Central to the pay- ment of a claim under the current legislative framework is the common law principle of delict where fault must be © Copyright 2015: Law Society of South Africa 021-21-NPO proven before a claimant is compensated. In this article, Tel: (012) 366 8800 Francois Robert van Zyl discusses the correct interpreta- tion of r 34 of the Uniform Rules of Court and Practice Member of Directives in order to enhance and facilitate the speedy The Audit Bureau of Circulations of Southern Africa and justifiable settlement of claims. DE REBUS – OCTOBER 2015 - 2 - EDITOR’S NOTE It’s that time of the year again for AGMs and conferences s we head towards the impeccable English and obtained good end of the year, this is grades. The other, who stays in a shack, the time when different funded his or her distance education organisations hold their through washing cars and speaks with annual general meetings a heavy African accent. She added that A(AGMs) or annual conferences. the youngster who lives in a shack, in Practitioners may ask themselves, is many cases, does not stand a chance of Mapula Thebe – Editor there any value in attending these securing articles as he or she does not meetings, and is it really worth taking a conform to the world view of what an day or two out of one’s busy schedule to attorney should look like. On the other listen to speeches and seminars? In my hand, the youngster with the good a full report on the above topics, in this view, attending annual conferences is a grades manages to secure articles, issue, see: worthy exercise as practitioners have does extremely well and is an asset • ‘Using the law to strengthen good an opportunity to learn something new, to the firm and is eventually made governance practices in the SADC which has the potential to enhance their one of the directors. Judge Masipa region’ practice. Over and above the educational asked: ‘Is the transformation initiative • ‘Legal practice of the future discussed benefit of these meetings, practitioners successful? Not necessarily. Whether at practice management conference’ have a first-hand opportunity to there has been real transformation • ‘Transformation discussed at JAA network and discuss issues that are at will depend on what this fellow does AGM’ the pulse of the profession. with his knowledge and his success. Our October issue contains reports If what he has gained from his firm from the Southern African Development only benefits him and his firm real Community Lawyers’ Association transformation has not taken place.
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