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. Contributions 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 necessar ily indicate approval by the Law Society remedy is well entrenched within our current legal for the product or service advertised. 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 (AGMs)A 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. (SADC LA) annual conference, the For real transformation to take 2015 AGM venues Johannesburg Attorneys Association place he would have to persuade (JAA) AGM and the Law Society of his firm to empower more people and dates South Africa and Legal Education and from “previously disadvantaged Development’s first annual Practice backgrounds” or quit the firm and • 16 October Management Conference. One of the do the work of empowerment with or KwaZulu-Natal Law Society trending themes at the conferences without his firm.’ Durban Coastlands Hotel, Umhlanga. was transformation. The other trending theme that was The word ‘transformation’ seems to discussed at the conferences was ‘the • 23 – 24 October be South Africa’s catch phrase, with law firm of the future’. During the SADC Black Lawyers Association many people focusing only on two LA conference it was discussed that the Emperor’s Palace, Johannesburg. of its approaches, namely race and law and law firms will be transformed by technological advances, but no gender. However, when the word is • 29 – 30 October more than other professions, and not looked at holistically, one finds that all Law Society of the Free State more than law firms’ clients will be. approaches of the word are interlinked. Windmill Casino and Entertainment Also, the ‘law firm of the future’ must Meaning, there cannot be meaningful Centre, Bloemfontein. gender and race transformation if efficiently use technology as this will there is a lack of social, economic and enable them to render better service to • 30 – 31 October political transformation. their clients and attract international Cape Law Society The big question is: How does the clients. Other areas ‘law firms of the Flamingo Casino Complex, legal profession ensure that holistic future’ will have to concentrate on Kimberley. transformation takes place? Judge are, demographics, specialisation and Thokozile Masipa, in her speech during project management skills. • 31 October the JAA demonstrated the answer to The above two topics are just some of Law Society of the Northern this eloquently. Judge Masipa compared the many issues and topics discussed Provinces two young previously disadvantaged at the AGM and conferences. It is clear Sun City. fellows seeking articles: One, who that there is indeed real value and attended private schools, speaks benefit to attending such meetings. For
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DE REBUS – OCTOBER 2015 - 3 - LETTERS TO THE EDITOR
PO Box 36626, Menlo Park 0102 Docex 82, Pretoria E-mail: [email protected] Fax (012) 362 0969
Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.
Appointment of women quirement. It was emphasised that this male judge, advocate or attorney who was important to ensure diversity and is against the appointment of women to the judiciary in South bring gender sensitivity in the adminis- judges. Africa tration of justice among our people. On the contrary, I know of many male Tabeth Masengu from the University judges and attorneys in South Africa par- I was privileged to attend the 2015 16th of Cape Town’s Centre for Democratic ticularly in the Black Lawyers Association Annual South African Development Governance and Rights Unit presented who have approached women lawyers to Community Lawyers Association (SADC statistics on the gender composition of avail themselves whenever there are op- LA) conference in Tanzania where the is- the judiciary in South Africa and stated portunities for acting or permanent ap- sue of the appointment of women judges that she had interviewed women lawyers pointment. Regrettably the majority of was discussed. who have complained to her that they the women lawyers approached always The conference received papers on are not approached whenever there are indicate that they are not available for perspectives from Zimbabwe, Malawi, opportunities for acting or permanent various reasons, including, lack of secu- Zambia and South Africa. The most appointments. rity and impossible working hours that depressing figures came from Malawi The statement viewed objectively fail to take into account their particular where there is a need for urgent and de- suggests that there is a sustained and personal and cultural circumstances. cisive intervention by the authorities at determined campaign by male lawyers Without wishing to be prescriptive university and training level. Zimbabwe and judges to stop woman lawyers from about the steps required to tackle this is notably leading by miles in compari- ascending to the higher echelons of the malady, I think the time has come where son to other countries. It is also worth judiciary in South Africa. This narrative women organisations, both in the legal mentioning that it was acknowledged has been propagated so many times, with profession and in the broader society, as that all the appointments for women no or little challenge, that we run the risk well as other civil society organisations, judges were done by President Mugabe of it being accepted as truth. There are to take up these issues and raise them prior to the establishment of the Judicial many male judges and lawyers who are sharply with the powers that be. Services Commission. committed to the transformation of the There is, as far as I know, nothing What came across as a common fac- judiciary in all its facets. that prevents or prohibits the South Af- tor was a need to ensure that whenever I accordingly want to dispute the cor- rican Women in Law Association, South there are vacancies, women lawyers are rectness of the statement and dare say African Women in Construction, African given preference for appointment on that it is not supported by any empirical National Congress Women’s League, IM- condition that they satisfy the merit re- evidence. I honestly do not know of any BELEKO Foundation, women in business
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DE REBUS – OCTOBER 2015 - 4 - or politics from nominating women for appointment to the Bench. When perma- nent vacancies occur in the judiciary the My two cents – BSC and NBS degrees Judicial Service Commission takes it on itself to communicate the advertisement am 83 years old and have heard to a tiny bit of misrepresentation, with the organised professional and that one is never too old to learn. may simply add said degrees to their women organisations. I have, therefore, registered for already existing list, while the more The fact that they have not done it yet two degrees, BSC and NBS. Said modest add the rider (working on it). says a lot about them as a group. I be- degrees are unique in as much Okay, I hear you shouting: ‘Get to the lieve the time has come, in our country, Ias neither are taught at any university point old fart’. BSC stands for ‘Basics where our women should stop accusing or formal institute of learning and are Simple Clear’ and NBS for ‘No Bulls**t’. men of not doing things for them. They free of charge. must rise and take their rightful place A bit of a discouragement is that JO van Schalkwyk, attorney, in the affairs of our society. I have not the course lasts for a lifetime and no Johannesburg (Still working on it) heard or read anywhere that there was piece of paper is ever issued as proof a woman lawyer nominated and who of successful completion. There are PS: I almost forgot to mention that failed to make it to the shortlisting pure- no formal examinations, tests or as- you may even regard said degrees as ly on the basis that she is a woman. As sessments. However, one may be faced superfluous. I read in John Humphrys’ a country we have committed ourselves with a test every day. book Lost for Words (UK: Hodder Pa- to the values and principles of equality Lastly and most encouragingly, one perbacks 2005) that some bright spark and fairness among all our people taking awards the degrees to oneself and you defined ‘Lawyer’s Syndrome’ as: ‘If we into account our history and the need to may have qualified for it already. knew what they were talking about we correct the injustices of the past. There Those among us, who are not averse wouldn’t need them.’ is accordingly no doubt that our country needs women judges. We can only have them if they apply when posts are ad- vertised or consent to being nominated when approached. Do you have something that you My experience with those that I inter- act with is that they have refused the would like to share with the nomination and do not apply whenever posts are advertised. Perhaps what is re- readers of De Rebus? quired is a need for our respective heads of the judiciary to put in place a policy that will accommodate the particular cir- Then write to us. cumstances of our women lawyers and make the positions attractive to them. I accordingly appeal to our women and De Rebus welcomes letters of 500 words or less. judges to assist our country by conduct- ing mentoring programmes to our wom- en and black lawyers and assure them Letters that are considered by the Editorial that there is nothing to fear. Committee deal with topical and relevant What is needed is the courage to make a decision without fear, favour or preju- issues that have a direct impact on the dice in accordance with the demands of profession and on the public. our Constitution. Maboku Mangena, attorney,
Polokwane Send your letter to: [email protected] • See SADC LA AGM news in this issue.q
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DE REBUS – OCTOBER 2015 - 5 - SADC LA AGM NEWS
Compiled by Mapula Thebe, editor, De Rebus, [email protected] Using the law to strengthen good governance practices in the SADC region
his years’ annual Southern Af- rican Development Communi- ty Lawyers’ Association (SADC LA) conference was held in Dar es Salaam, Tanzania from T20 to 23 August. The theme for the 16th annual conference was: ‘Using the law to strengthen good governance practices and to facilitate social, economic and political transformation in the SADC re- gion.’ The conference was attended by judg- es, law society and Bar leaders, practi- tioners, government officials, members of the academia, attorneys general and representatives from regional and na- tional civil society organisations. Delivering the opening address, Chairman of the Commission for Delivering the opening address, Presi- President of the United Republic of Human Rights and Good dent of the United Republic of Tanzania, Tanzania, Dr Jakaya Mrisho Governance of Tanzania, Bahame Dr Jakaya Mrisho Kikwete, congratulated Kikwete, congratulated SADC LA Tom Mukirya Nyanduga, speaking SADC LA for uniting law societies and for uniting law societies and Bar about how the law can be used as Bar associations in the SADC region. associations in the SADC region. an additive for change. He noted that the theme of the confer- ence was befitting, timely and relevant. He said that social, economic and politi- cal transformation was important to all economic and political transformation in of rules that state that all entities are ac- stakeholders in the region, as this will the SADC region. Chairman of the Com- countable to the law. These rules should foster an environment and platform that mission for Human Rights and Good assist states with their decision-making will raise investor confidence. He added: Governance of Tanzania, Bahame Tom procedure and enhance transparency.’ ‘Raising investor confidence will ensure Mukirya Nyanduga, presented the key- Speaking about corruption, Mr Nyand- economic growth in the region and en- note address. unga said that corruption by public of- sure that the region is the destination Mr Nyanduga said the law can be used ficials for personal gain existed in all of choice for investors. This is also one as an additive for change in the devel- branches of government. He added that of the agendas of the Tanzanian govern- opment and transformation of society in governments needed to be transparent ment.’ the SADC member state countries, add- to ensure accountability because ‘ram- President Kikwete urged attendees at ing that the rule of law, separation of pant corruption wasted public resources the conference to protect the rights of powers and freedom are the bedrock for and undermines the rule of law. Lawyers the marginalised, namely, women and social transformation. He noted that rule have to address the social needs of the children, and not to lose sight of the of law can achieve an effective balance people and citizenry and not be bystand- important role the legal fraternity plays of power in all arms of the state. ‘The ers to ensure that public resources grow’. in this regard. He asked lawyers attend- state must ensure that national reforms ing the conference to bring themselves are put in place, fight corruption and al- Tokoloshi democracy closer to the ordinary people of their locate resources in the management of The second speaker of the plenary ses- respective countries to ensure that they public entities, this will contribute to sion; Director for Southern Africa Am- position themselves to assist with access peace in a state,’ he said. nesty International, Deprose Muchena, to justice, adding that ‘only then can the Mr Nyanduga called on all lawyers to spoke on social injustice. He said that common man have access to justice’. work with the relevant stakeholders to income inequalities in the SADC region Using the law in the improve the rule of law in society, add- effect access to justice and that the law ing that the concept of the rule of law was a basis for economic transforma- purpose of transformation has many elements and can be looked tion. ‘Most countries reflect a tokoloshi On the first day of the conference, a ple- at from a political angle, which would democracy. People talk about it, but no nary session was held under the theme: entail equal and similar justice for all. one sees it,’ he said. ‘Using the law to strengthen good gov- ‘The rule of law is infused with human Speaking on justice in the SADC re- ernance practices and to facilitate social, rights norms. … The rule of law are a set gion, Mr Muchena said: ‘There is an as-
DE REBUS – OCTOBER 2015 - 6 - sault that is taking place across the re- gion targeting freedom of expression. We have also seen police use excessive force that is taking away rights. There has been attack on powers of the state and human rights. All across Africa there are incidents of forced eviction. How have lawyers positioned themselves to defend the evicted?’ Mr Muchena said that the SADC Tri- bunal was meant to be an institution for the people of the region but presidents have privatised it. ‘We need to question why an important institution such as the - Speakers at the Funding and Sustainability for Law Societies and Bar SADC Tribunal was ended,’ he said. Associations session, from left to right: SADC LA Treasurer and immediate past Co-chairperson of the Law Society of South Africa, Maxwell Boqwana; im- Funding law societies and mediate past President of the East Africa Law Society, James Aggrey Mwamu; Bar associations and Managing Director at REX Consulting Limited, Dr Eve Hawa Sinare. One of the breakaway secessions of the first day of the conference discussed cations. He said that members’ subscrip- the society has self-financed its activi- funding law societies and Bar associa- tions have made the society independent ties through membership fees, but this tions. Immediate past President of the from governments’ control and influ- has not been enough, with the result East Africa Law Society (EALS), James ence. Adding that donor funds are just that the society’s growth and capacity to Aggrey Mwamu spoke on the member a supplement rather than the primary carry out its statutory mandate has been based funding model. source of funds and that this also helps limited by financial constraints. The fi- Mr Mwamu said that the EALS does reduce donor dependence. nancial challenge is further compound- not rely on donor funding. He added: The second speaker of the session on ed by the fact that members of the legal ‘The East Africa Law Society is the apex funding was Councillor of SADC LA and profession employed by the government regional Bar association of East Africa. It the Law Society of Botswana, Joseph Ba- and statutory corporations are exempt was jointly founded in 1995 by a group losang Akoonyatse. Mr Akoonyatse be- from the payment of fees for practicing of lawyers with the support of the lead- gan his presentation by speaking about certificates and subscription.’ ership of the national Bar association of: the rule of law. He said: ‘The rule of law The third speaker of the funding ses- Zanzibar Law Society, Uganda Law Soci- is recognised in all civilized world as a sion was advocate and Corporate Legal ety, Tanganyika Law Society, Law Society key principle of good and democratic Consultant at Rex Consulting Limited, Dr of Kenya, Kigali Bar Association and Bu- governance. … General consensus exists Eve Hawa Sinare. She said that law socie- rundi Bar Association. It has over 10 000 that the concept of the rule of law means ties are membership driven entities, they individual members and six institutional no less than that – the law is supreme represent and support members to deliv- members. It is the largest Professional over all persons – no matter how wealthy er high standards of professional com- organisation in East Africa, with a spe- and powerful they may be. The rule of petence through a wide range of servic- cific focus on – law ensures that everyone “plays by the es. ‘Law societies supervise and regulate • the professional development of its same rules” and that those that are oth- the conduct of lawyers; represent the members; erwise mighty and powerful do not use interest for lawyers – influence govern- • promotion of constitutionalism; arbitrary power to the detriment of the ment, parliament and key stakeholders. • promotion of democracy and good gov- weak and vulnerable. Where there is no Law societies work to improve the ad- ernance; rule of law, there is chaos and anarchy ministration of justice, promote respect • advancement of rule of law; and – there is a survival of the fittest where for the rule of law. They safeguard and • promotion and protection of human you either eat or you are eaten. Who maintain the core values of the legal pro- rights of all people in East Africa and ensures the effectiveness of the rule of fession’s independence,’ she said. beyond.’ law? It is the legal profession.’ One of the delegates attending the ses- According to Mr Mwamu the funding Mr Akoonyatse said that, while cre- sion reminded those present that law for EALS is based on individual subscrip- ated by an Act, the Botswana Law Society societies need to ensure that members tions, institutional subscriptions, donor does not receive any financial assistance receive proportionate benefits for the funding, as well as research and publi- from the government. ‘Since inception, subscriptions they pay.
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DE REBUS – OCTOBER 2015 - 7 - Perspectives on the role of the profession in promoting the rule of law and democracy
n the second day of the confer- tion in improving the quality of lawyers ence, a plenary session, spon- and enhancing the quality of service to sored by the Law Society of the public. She said that for vocational OSouth Africa (LSSA), was held law schools to be described as fit for under the theme: ‘National, regional and purpose, they need to improve the qual- international perspectives on the role of ity of service. ‘The public calls for qual- the legal profession in promoting the ity assurance mechanisms in training, rule of law and sustaining constitution- which should result into the products of al democracies’. LSSA Co-chairperson, professional and vocational law schools Busani Mabunda, said the reason the being described as fit for purpose. When LSSA sponsored the session was because a buyer makes known to the seller the South Africa is undergoing transforma- particular purpose for which the goods tion of the legal profession. ‘This is the Law Society of South Africa are bought, there is an implied condi- best time to approach others, those at Co-chairperson, Busani Mabunda, tion that the goods are reasonably fit for the heart of the profession, within the said that the conference was the that purpose – the same should apply to region to share their insights. … We opportune time to take views of graduates at our law schools,’ she said. thought it was important to seize the those at the heart of the profession, Director General of the German Bar moment and take the views of our broth- within the SADC region, to help Association, Cord Brugmann, spoke on ers within SADC to help us formulate the South African practitioners formu- balancing the regulatory and representa- Legal Practice Act,’ he said. late the Legal Practice Act. tive roles of the law societies or Bar as- Speaking on engaging with the state sociations. He said that the written law on legal profession legislation and is- is useless if there are no independent sues of public and professional interest, lawyers that are committed to serving perspectives from Kenya, Chief Execu- Mr Deya said that relations between their clients. ‘Independence of lawyers tive Officer of the Pan African Lawyers lawyers’ associations and governments should happen on an individual level. Union, Don Deya, said: ‘“The traditional are multi-faceted, dynamic and con- One of the aims of law societies and Bar role of a lawyers” association, at what- stantly evolving. ‘The relationship may associations, as self-regulators, should ever level, (at least have one or a combi- sometimes be conflictual, that is only be steered towards public interest. In my nation of): natural. Ideally the relationship should view, representatives of the profession • Regulation: Education, admission, set- have a healthy mix of co-operative and and regulators should not be the same ting and enforcing practice standards adversarial engagements,’ he said. as this will result in conflict of interest. and rules, discipline, etcetera. Presenting her speech on ethics, from … Self-regulation is a clear indicator of • Representation (of the profession): a Namibian perspective, Councillor of democracy and adherence to the rule of “Trade union” function; representing the the Law Society of Namibia and SADC law. Regulators have to remember that profession to the government, the public LA, Carol Williams, said that lawyers they do not have to be liked by their and the global legal community, etcetera. are referred to as sharks, however, this members and should stay within the • Public Interest: Administration of jus- is only applicable to a few. Ms Williams scope of their duties,’ he said. tice, the just rule of law, constitutional- added that there are many lawyers who ism, democracy and good governance, are champions of human rights and who which includes the protection and pro- believe in the rule of law that is based motion of human rights.’ on fairness and equality. She cautioned attendees that if lawyers do not resolve the public’s problems using the rule of law, this will raise public dissatisfaction. ‘The law and morality are linked; the law is based on moral principles of so- ciety. Lawyers should respect the moral ideas of the people. Law societies should not only be regulators but should also be educators and implement ethics. A lawyer that conducts his or her work ethically, will be of much value to soci- ety, this is what society expects of him or her. Lawyers are the first officers of the court. We all know what is wrong and Chief Executive Officer of the Pan right. Lawyers should not be seen to be African Lawyers Union, Don Deya, misleading the court,’ Ms Williams said. Director General of the German spoke on engaging with the state Judge of the Supreme Court of Uganda, Bar Association, Cord Brugmann, on legal profession legislation and Lady Justice Prof Dr Lillian Tibatemwa- spoke on balancing the regulatory issues of public and professional Ekirikubinza, delivered a speech, from and representative roles of the law interest, perspectives from Kenya. the perspective of Uganda, on the role societies or Bar associations. of professional and vocational educa-
DE REBUS – OCTOBER 2015 - 8 - SADC LA AGM NEWS
more youthful. ‘Lawyers should profile ing that international clients also want the market they work in demographi- to see the experience a law firm has on cally versus others globally and figure a particular area of specialisation from out how this translates into growth po- previous cases. He noted that with effi- tentially. This will also help the law firm cient use of technology successfully, law determine the different needs of differ- firms will be able to render better service ent demographic profiles and what this to their clients and attract international means for the goods and services the law clients. firm provides,’ he said. Another area that law firms need to According to Mr Millard the ‘Big four’ pay attention to, but are currently not, is global advisory firms dwarf even the project management skills according to largest global law firms. He said that the Mr Knott. ‘Foreign investment projects world’s largest law firms are quite small are usually complex. Therefore the pro- compared to the largest accounting jects need to be properly planned and firms. He asked: ‘Are we going to see the executed. Key action steps are: Prepa- Partner and Head of the Strategy global legal profession consolidate into ration of step plan and time schedule Practice at Møller PSF Group, Rob about 20 “mega-firms?” What does that accepted by all team members, team Millard, said the law and law firms mean for mid-tier firms? Which firms building, ensuring availability, role of will be transformed by techno- will be the market leaders of the future project coordinator, one principal client logical advances, but no more than and what will be the source of their com- contact, assignment of responsibilities. other professions, and not more petitive advantage?’ The competition among firms and simi- than law firms’ clients will be. Mr Millard said that the key to a law larity of substantive skills mean that it is firm growing its market share is speciali- not necessarily the same firm which will sation. ‘A firm should move from “we do always be hired by the client for similar Increasing the potential of everything” to “we are the best at …”. projects. Therefore opportunities have The key questions law firms should ask to be identified early on and the client local law firms to advise themselves are: What do we “want to be relationship has to be maintained on a clients on complex work in famous for”? How do we transition from regularly basis,’ he said. a general to a specialist focus? How do Africa we improve our skills in our specialist A session sponsored by the International areas? How do we gain client trust that Bar Association (IBA) Law Firm Manage- we can do this work well? What role ment Committee, which was initially should law societies/regulators play in opened only for SADC LA individual this?’ asked Mr Millard. members but later opened to all attend- The second speaker of the session ees at the conference, discussed law firm was partner at Luther Rechtsanwaltsge- management in Africa. Partner and Head sellschaft and Co-chairperson of the Law of the Strategy Practice at Møller PSF Firm Management Committee of the IBA, Group, Rob Millard, was first to address Hermann J Knott. He spoke about suc- attendees during this session. At the on- cess factors of law firms in Tanzania, set, Mr Millard told delegates to bear in which practitioners can apply in their mind that a small law firm is not a little different jurisdiction. He said that the big firm. size of law firms was not a goal by itself, Speaking about the law firm of the but was necessary in order to handle Partner at Luther Rechtsanwaltsge- future, Mr Millard said the law and law several significant client matters at the sellschaft and Co-chairperson of the firms will be transformed by techno- same time; and build specialty teams/ Law Firm Management Committee logical advances, but no more than practice groups according to the rel- of the IBA, Hermann J Knott, spoke other professions, and not more than evant needs, for example, corporate, real about success factors of law firms law firms’ clients will be. He said that estate, employment, administrative, tax, in Tanzania, which practitioners demographics will also play a big role banking and litigation. can apply in their different in transforming the way law firms con- Mr Knott said that international cli- jurisdiction. duct business as the population gets ents expect law firms to specialise, add-
he President of SADC LA, Gilberto Caldeira Correia is- sued a list of resolutions from Resolutions from the 16th annual conference: Below are the resolutions the conference Tfrom the three plenary and four parallel sessions that were held during the con- ference. rights and freedoms of citizens are the • SADC governments must create justice On using the law to promote good bedrock of social, economic and political delivery systems that allow access to governance practices and to facili- transformation in the SADC region. justice by citizens and are in line with • It is important for the SADC govern- regional and international principles and tate social, economic and political ments to fight corruption and allocate best practices. transformation in the SADC region, public resources in a transparent and eq- • SADC LA should work and collaborate the following issues emerged: uitable manner and create legal systems with other like-minded organisations • The rule of law, separation of powers that address the challenges of discrimi- both regionally and internationally to and the protection of the fundamental nation, poverty and inequality. promote good governance so as to fa-
DE REBUS – OCTOBER 2015 - 9 - cilitate the social, economic and political nent in accordance with art 4(h) of the transformation of the SADC region and Constitutive Act of the African Union. ensure the utilisation of public interest • SADC LA, its constituent members and litigation including on the SADC Tribu- civil society groups must compliment nal issue. governments’ efforts to meet their three • SADC governments must borrow a leaf obligations to promote, protect and fulfil from other jurisdictions, including the the human rights of all particularly for Indian jurisdiction with regards to the vulnerable groups such as women and promotion of social justice principles, children. including striking a balance between citi- On national, regional and interna- zens’ rights and their duties. tional perspectives on the role of the • The legal profession through SADC LA legal profession in promoting the must take a leading role in ridding the region of repressive colonial legislation rule of law and sustaining constitu- and in promoting fundamental rights tional democracies, the participants and liberties. Pesident of SADC LA, agreed that: • The challenge of rule by law as op- Gilberto Caldeira Correia, • There is need for lawyers to identify posed to rule of law must be addressed speaking at the 16th and understand the extended nature of and there should be efforts to ensure annual conference. government institutions that impact on that laws are passed by parliaments and law reform and the role of lawyers there- not through parliaments. in and not confine engagements to the • SADC as an institution belongs to citi- executive arm of government. zens and not to governments and that tion and regulation. This includes iden- • Law associations/societies and Bar as- SADC leaders must therefore put the in- tifying special interest areas that appeal sociations must be clear about the rea- terests of the citizens first. to different categories of members such son for their existence and their role • Lawyers must play an important role as young lawyers, senior lawyers, wom- (regulation, representation) and develop in the creation of economic policies and en lawyers and ensuring programming strategic plans to help in achieving their in the process ensure that SADC states around those issues. goals. create laws that address challenges relat- On international justice in Africa the • There is need to strategically deploy members in institutions such as national ing to illicit financial flows and human following were identified as key is- rights abuses in the natural resources and regional/international boards and sues: sector. commissions that have a role in policy • Lawyers have a role to play in regional • SADC LA and its constituent members reform and implementation and ensure integration and the achievement of the must advocate for the domestication of that the members that are so deployed regional industrialisation strategy espe- the Rome Statute and for the strength- remain accountable to the profession. cially in the area of harmonisation of le- ening of national judicial mechanisms to • Lawyers must focus on their role as gal and fiscal regimes while promoting adequately handle international crimes. service providers and in improving ac- cross border legal practice. • National jurisdictions should be em- cess to justice, defending the vulnerable • SADC regional leaders must accept the powered to prosecute international in society and promoting the rule of law. concept of peaceful transfer of power crimes through domestication of the As such training of lawyers through law with a realisation that there is life after Rome Statute in the spirit of comple- schools must ensure that lawyers are the presidency. mentarity. equipped with relevant skills including • Fighting impunity requires political those in public interest litigation and un- On funding and sustainability for participation and commitment – all le- derstanding of gender, women’s rights law societies, the participants agreed gal professionals must therefore commit and human rights. that: themselves to fight impunity by engag- • Law students must be placed with • Lawyers must take responsibility for ing with the African mechanisms such as training partners and in internships so the funding of their associations to en- the African Court on Human and Peoples that they acquire practical skills early on sure that as a profession, they have au- Rights and how to make them effective in their training. tonomy and are efficient and effective in addressing all issues of impunity. • Law societies must carry out constant in delivering their mandate. To this end, • All legal professionals must work to- surveys and research on member needs donor funding must be supplementary gether to raise awareness with and for and expectations so as to maintain the and not be the main source of funding the people on justice in Africa. relevance of the law society to its mem- for law societies and Bar associations. • To curtail prolonged stays in office by bers. • The SADC legal profession must con- African leaders and to avoid disintegra- On strengthening the legal profes- sider the East African Law Society mem- tion of nation states, stakeholders on sion in the region to ensure better bership funding model in which all law- the African continent such as the SADC judges, participants resolved that: yers who are members of the local law LA, its constituent members and leading societies automatically become mem- civil society organisations must consider • Women must be encouraged to join the bers of and are compelled to pay sub- amicable ways of engaging with heads of legal profession, to take up leading roles scriptions to the East Africa Law Society. states with a view to encouraging them including high judicial and other public • Law societies must be innovative and to adhere to the tenets of good govern- offices in order to be role models and to take up different fundraising initiatives, ance and the rule of law and to leave of- mentor young female lawyers. including, undertaking research, provid- fice after their tenure. • SADC LA and its constituent members ing professional training, e-learning and • The SADC LA and its constituent mem- must encourage the judiciary to address crowd funding. bers should encourage continued coop- gender considerations in judicial appoint- • Law societies must ensure that mem- erative engagement between the African ments and in the adjudication of cases. bers get value for their money by provid- Union and the International Criminal • SADC LA and its constituent members ing tangible benefits for members in the Court in the mutually beneficial fight must advocate for better gender and di- areas of training, protection, representa- against impunity on the African conti- versity policies for law schools, judiciar-
DE REBUS – OCTOBER 2015 - 10 - SADC LA AGM NEWS ies and law societies, advocate and lobby in order to prepare them for appoint- the acquisition of different language for the inclusion of a significant number ments to the Bench. skills must be pursued in the same way of women on the judicial appointment as the attainment of technical legal ex- On increasing the potential of local committees and for more women to be pertise. law firms to advise clients on com- appointed as senior lawyers. • Lawyers must have an understanding • SADC LA and its constituent members plex work in Africa, it was observed of different cultures, have an interna- should play a more active role in the ap- and agreed that: tional character and cooperate with in- pointment of judges, advocate for and • Lawyers must realise that technology is ternational firms through programmes encourage governments to initiatite changing the world and impacts on both such as seconding young lawyers for at- legislative changes so as to provide for lawyers and their clients’ businesses and tachments and internships. a more transparent and participatory must therefore embrace technology and • Lawyers must acquire project manage- process of appointing judges, on merit use it efficiently. ment and business development skills as and by an independent and representa- • African lawyers must identify econom- foreign investment projects are usually tive body. ic and demographic trends that impact complex and require good client rela- SADC LA and its constituent members • on their work including the growing mid- tionships; and each law firm must build must contribute to the standards, poli- dle class in Africa that acts as a pool for a reputation, a law firm culture and law cies and practices for the appointment potential clients and a youthful popu- firm values in order to succeed. of judicial officers through conducting lation that translates into a potential The above resolutions and key issues research and production of policy pa- discussed at the annual conference will workforce. pers on best practices in the region and direct SADC LA in its programming in • The size of a law firm matters in that at the international level. the coming year. This will help in ensur- a bigger law firm entails the capacity to • SADC LA and its constituent members ing that member expectations are met, handle several significant client matters must insist on high professional and that the key challenges that SADC citi- ethical standards among their members at the same time and do so efficiently zens are grappling with are addressed so as to grow a competent pool of can- and effectively. and that the SADC region is served by an didates that are eligible for appointment • Specialisation is important because it efficient, effective and independent legal to the judiciary through an independent, improves efficiency and quality and in profession. The next SADC LA annual impartial and transparent process. the process also decreases the risk of conference will be held in Cape Town, • SADC LA and its constituent members malpractice. There must be a time when South Africa from 7 – 20 August 2016. should provide more support to women a law firm moves from doing everything who have the potential to be appointed to being best at something. to the judiciary and must be more proac- • Knowing different languages has be- tive and train and strengthen members come an important skill and, therefore, q
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DE REBUS – OCTOBER 2015 - 11 - NEWS Meeting between the President and Chief Justice
seven-hour meeting between and the legal profession are at the heart of our people. I reiterate that it was in- the judiciary and executive of our constitutional enterprise and the deed an eye opener, an enriching exer- took place on 27 August at parties have a responsibility to strive to- cise that can only bode well for both the the Union Buildings in Pre- wards its achievement. executive, judiciary, the legislature and toria. • In those instances where judges are be- the entire populace of South Africa. I APresident Jacob Zuma chaired the lieved to have conducted themselves un- just want to reaffirm our collective com- meeting between the National Executive ethically, other arms of the state, entities mitment as a judiciary to executing our and the judiciary in his capacity as Head or members of the public should make constitutional mandate only in a manner of State. The meeting was at the request use of the structures set up to address required of us by the Constitution and of Chief Justice Mogoeng Mogoeng. such concerns, and report them to the the law.’ President Zuma noted the ‘historic’ na- Judicial Conduct Committee of the Judi- In a media statement, the National ture of the meeting. He stated that the cial Service Commission. Similarly com- Association of Democratic Lawyers meeting, requested by the Chief Justice, plaints against magistrates must be re- (NADEL) welcomed the outcome of the was a result of concern regarding pub- ported to the Magistrate’s Commission. meeting, saying that it was ‘important lic statements made questioning the • All have a duty to protect and promote that the President and the Chief Justice integrity of the executive and judiciary. the Constitution to all citizens as the su- reassured the public that court orders ‘The judiciary and the executive each preme law of the land. should be respected and complied with. reaffirmed their commitment to the in- • Court orders should be respected and It is our view that failure to do so would dependence of the judiciary, the rule of complied with. lead to a general atmosphere within or- law and the separation of powers all of • An obligation to the people of South gans of state and the general public of which, underscore our constitutional de- Africa and to promote access to justice. ignoring judgments of the courts which mocracy. We also reiterated our commit- A responsibility to the people of South would in turn lead to the illegitimisation ment to the institutional integrity of all Africa to uphold the Constitution. of the judiciary.’ arms of the state,’ he said. • The meeting as a foundation of future Regarding transformation of the judi- The following was agreed on at the engagements to discuss issues that may ciary, NADEL said: ‘[O]ur views that both meeting: arise from time to time. representivity and qualitative transfor- • Respect for the separation of powers • The administration of the courts, ac- mation are the cornerstone to realising and the integrity of the two institutions. cess to justice and transformation iden- the founding values of human dignity, • To exercise care and caution with re- tified as issues requiring specific focus equality, human rights and freedom’. gards to public statements and pro- in future engagements. • See ‘Profession stands behind Chief nouncements criticising one another. The Chief Justice said: ‘I confirm the Justice and judiciary in raising concern • To promote the values and ethos of statement read out by the president as on attacks on the judiciary and the rule the Constitution. The arms of the state being a true reflection of the undertak- of law’ 2015 (Aug) DR 14. should not be seen to be antagonistic to- ings we collectively made as we move Kevin O’Reilly wards one another in public. forward towards making South Africa a [email protected] • The transformation of the judiciary better constitutional democracy for all Women in law and society
he North-West University • the changed role of women in family larger law firms? Why do we not see 55% (NWU) held a one-day collo- law; practicing advocates, senior advocates quium titled ‘Women in Law • domestic violence; or judges?’ She questioned, adding that and Society’ in celebration of • gender equality and indigenous law; ‘only a very naïve person would argue its 50 year anniversary and and that we in South Africa have real sub- TWomen’s Day. The colloquium was held stantive gender equality in 2015. Despite • corrective rape. in Johannesburg on 6 August. While giving an introduction to the our wonderful Constitution, despite a Speakers at the colloquium included first session, Senior Lecturer at NWU’s whole month being named women’s Dean of the faculty of law, Professor faculty of law, Rolien Roos, said that month, we are still faced with a number Nicola Smit; special adviser to Minis- every year more than 50% of law gradu- of problems regarding gender equality in ter Susan Shabangu, advocate Joyce ates are female. She added that what is South Africa’. Maluleke; and Pretoria Bar advocate, of great significance is that between 90 Doctor Jannet Gildenhuys. and 100% of those who obtain their de- Women in the formal and A critical discussion was held on grees with distinction are female. ‘It is informal economy where women find themselves today in a wonderful story to demonstrate how law and society (as opposed to 50 years far we have come over 50 years. But Professor Smit spoke on women in ago) and which challenges they still face. we should ask ourselves what happens the formal and informal economy and Topics addressed included – to those 55% of law graduates that en- looked at the progress made and chal- • women in the labour market; ter their professions, why do we not see lenges remaining. She said the gender • women in legal practice; 55% female managing partners in the gap had improved in the past decade in
DE REBUS – OCTOBER 2015 - 12 - be irrational or capricious and there- NWU, Alison Geduld, spoke on corrective fore arbitrary,’ she said, adding that rape and transformative constitutional- this amendment was very significant for ism. women. She described ‘corrective rape’ as the Professor Smit referred to the Wool- rape of a person in order to cure him or worths (Pty) Ltd v Whitehead (Women’s her of their sexuality. According to Ms Legal Centre Trust intervening) 2000 (3) Geduld, lesbian women are in most of SA 529 (LAC), which she said illustrates the reported cases the victims. She said the importance of the amendment very the rapes are brutal in nature and have clearly. She said Ms Whitehead was a been fatal in some instances. pregnant lady who applied for a senior Ms Geduld said there were no national position at Woolworths. She was told statistics on corrective rape cases, but orally that she got the job. In the evening ActionAid, a non-governmental organi- someone from Woolworths called her sation, has indicated that they deal with and she disclosed the fact that she was approximately ten new cases a week. pregnant, the next day when she went Ms Geduld added that it was unfortu- Senior Lecturer at the North-West to Woolworths she was told that there nate that family collusion was involved University’s faculty of law, had been a mistake, she did not have the in some of the cases where mothers get Rolien Roos, giving the welcome job as there was another candidate who people to correctively rape their own address at the university’s one-day still had to be interviewed. The job offer children. Ms Geduld added that cor- colloquium titled ‘Women in Law eventually went to a male candidate. Ms rective rape was more prevalent in the and Society’ in Johannesburg in Whitehead argued that she was not ap- townships where black lesbians are tar- August. pointed because of her pregnancy. geted because being a lesbian is seen as This case reached the Labour Appeal ‘unAfrican’ and ‘unChristian’. court (LAC). Professor Smit said at the Ms Geduld said the law should be used South Africa adding that equal opportu- LAC one of the judges stated that it was as a vehicle to progressively transform nities and employment cannot, however, an absolutely rational thing to consider the mindsets and social norms of society. be said to exist as yet. when someone applies for a senior posi- She then went on to define what ‘trans- According to professor Smit, women tion whether that person is pregnant or formative constitutionalism’ means. She can only take up their rightful space in not. ‘Now what the judge did not realise said the late former Chief Justice, Pius workplaces if labour and social policies is that it is not a person who is pregnant, Langa, said there is no uniform defini- are mindful of prevalent stereotyping it is only a woman who is, and also that tion of transformative constitutionalism in society in general; women’s double you are only pregnant for nine months, but that it is in keeping with the spirit of burden of paid and unpaid work and not for the rest of your life,’ said profes- transformation that there should not be discrimination in employment opportu- sor Smit. ‘If a judge at the LAC can find no single understanding of it. Ms Geduld nities, benefits and career progression. pregnancy as a rational ground to con- added that the former Chief Justice said Professor Smit further said: ‘Although sider, then we are in trouble,’ she added. transformation is not only the responsi- every decision maker and person of in- Professor Smit said the 2014 Amend- bility of the court, but other arms of gov- fluence should be sensitive to women’s ment Act has specifically extended s 6 ernment should also play their role. She rights it is, in particular, incumbent to include the concept of equal pay for said there is no one common definition upon women in positions of authority the same or similar work and of work of but that it envisions a change, from a di- and influence to be mindful of achieving equal value. vided South Africa to a more equal one. the equal treatment of men and women Professor Smit also said there are in the world of work.’ many women who do not return to work Speaking on equal treatment en- after maternity leave. ‘The question is Customary law, the trenched in the Employment Equity Act why, why is it difficult for women to take constitutional protection 55 of 1998, professor Smit said that time off from work. It does not help to and human rights s 6(1) contains a list of 19 grounds on have labour protection, which is centred which unfair discrimination is prohib- on the concept of a traditional employee Special adviser to Minister Shabangu, ited. She added that the list corresponds if the majority of your population does advocate Maluleke, spoke on customary to the one in the Constitution but adds not qualify as a formal sector employee,’ law. three more grounds, namely, family re- she said. She said that virginity testing violates sponsibility, HIV status and political Professor Smit concluded by saying privacy adding that there is no proof opinion. that South Africa has a very progressive that virginity testing protects children. Professor Smit added that the 19 and wonderful legal framework regulat- She did, however, add that not all chil- grounds referred to are broadly constitu- ing equality in the workplace. She said dren are forced to undergo virginity test- tive of human identity. She added that in s 6 grants equal rights and opportunities ing as some of them do so with the pride 2014, s 6(1) was amended to include the to women and men regardless of a num- they have for their culture. words ‘or on any other arbitrary ground’. ber of attributes. ‘In South Africa we are Ms Maluleke said that if parents force ‘The limits on what might be consid- at a very good place, we have all the legal their children to undergo virginity test- ered to constitute an “arbitrary ground” provisions that are necessary for women ing, the children can go to the equality are likely to prove controversial, espe- to have equal opportunities. We do have court or they could open a criminal case cially given the close link drawn by the political will but we also have significant with police. She also said South Africa courts between discrimination and the challenges. Much more should be done has many laws, which are not imple- concept of dignity. For example, rel- about the mindset of people,’ she said. mented simply because people do not evance to workplace needs, commercial know about them. rationale or operational requirements, Corrective rape and According to Ms Maluleke, many tra- and lack of tertiary qualifications may transformative ditional practices have changed such as not constitute “arbitrary” grounds – to the rule that circumcision can now only the extent that they would ordinarily not constitutionalism be done during the winter holidays as affect a person’s dignity – but may well Jurisprudence and ethics lecturer at healing is faster and is more hygienic, it
DE REBUS – OCTOBER 2015 - 13 - can no longer be done in summer. She ciary can do to try help this situation added that circumcision had now been change. She said the preamble of the commercialised. Constitution contains a transformative Another example that she gave about mandate for all spheres of government how tradition had changed was the prac- including the judiciary. ‘Generally if par- tice of ukuthwala. Ms Maluleke said uku- ties are married, and the marriage ends thwala had become a crime adding that either by death or divorce, the married in the olden days it was very different. woman generally finds herself in a better ‘The men would never sleep with the off position than she would have been young girls before first having discus- had she merely been co-habiting. This is sions with the young girl’s family. Even because the law attaches automatic con- if we abolish ukuthwala in legislation, it sequences to marriage, one of which is and virginity testing would continue be- spousal maintenance. In an unmarried cause it is seen as tradition,’ she said. co-habiting couple there are currently no • See ‘Ukuthwala: Is it all culturally rela- Special adviser to Minister automatic attachments in South African tive?’ 2015 (Aug) DR 28 and the ‘Crimi- Susan Shabangu, advocate law and there is no claim should that nal law report’ in the Law Reports on 45 Joyce Maluleke, speaking on relationship end. What is the judiciary in this issue. customary law at the North-West doing about this? In the case of married University’s colloquium on ‘Women couples the courts give protection to the Access to justice remains in Law and Society’ in other spouse. In the case of domestic an aspiration for rape Johannesburg in August. partnership, it appears the courts are not offering protection to the partner, survivors because the parties had the choice to Executive director of Tshwaranang Le- marry but chose not to,’ she said. for a non-traditionalist approach to ac- gal Advocacy Centre to end Violence cessing justice and broadens the defi- Against Women, Nondumiso Nsibande, nition of domestic violence. She added Women in legal practice explained why access to justice remains that this Act also places specific legal A panel discussion was held under the an aspiration for rape survivors in South obligations on the police regarding as- theme ‘women in legal practice – 1965 to Africa. She said there was a culture of sistance for domestic violence including 2015 and beyond’. The panel consisted impunity in the country with low convic- assisting in finding shelter and medical of Dr Gildenhuys; attorney and Director tion rates, adding that low legal literacy assistance. at C van Rooyen Attorneys, Celesté van levels on rights also played a part in low Sexual Offences Act 32 of 2007 pro- Rooyen; Vice President of legal at Sasol, conviction rates. • vides for the creation of sexual offences Castalia Moloi; and professor of inter- Other challenges highlighted by Ms and repeals the common law definition national law at the University of Johan- Nsibande included obstacles in access- of rape. She said it offers special protec- nesburg, Mia Swart. All the women spoke ing justice, poor investigating processes, tion for children and persons with dis- about their positions, as well as some of negative attitudes and lost dockets. abilities but added that implementation the challenges they faced. Ms Nsibande said gender based vio- of this Act remains a huge challenge. Ms van Rooyen said that when she first lence (GBV) was one of the most perva- became an attorney people would always sive human rights violations. She said, The judiciary and the think that she was a secretary. She said according to studies, it was evident that that she loves what she does, and has a GBV had reached epidemic proportions changing role of women in lot of passion for it adding that it took in the country. The study found that – family law her a while to overcome the moral objec- • 77% of women in Limpopo; Family law lecturer at the Stellenbosch tions that she had in herself. ‘I have not • 51% of women in Gauteng; University, Doctor Debra Horsten, spoke looked back once and thought no, what • 45% of women in the Western Cape; on the changing role of women in fam- am I doing with my life?’ and ily law and the response of the judiciary Pretoria Bar advocate, Dr Gildenhys, • 36% of women in Kwa-Zulu Natal report to this role. She said that women’s role spoke on women in the advocate’s pro- experiencing some form of violence. in society has been traditionally seen fession. She said the Bar was not for eve- She added that over 78% of men in as running the home and caring for the ryone. ‘Not every woman is interested in Gauteng have admitted to committing family, and the man is seen as the bread- a career at the Bar, the hours are severe, some form of GBV. winner. ‘These roles did start to change your programme is unpredictable, the Ms Nsibande said data from the with the gender revolution and indus- stress is high, there are no benefits, you South African Police Service (SAPS) for trial revolution with women taking on do not step into an established practice, 2013/2014 show that there were 62 649 paid employment. The first half of the you build one, one brief at a time,’ she sexual offences cases and a conviction gender revolution saw the weakening of said. rate of under 8%. the family structure with women taking Dr Gildenhuys said when she joined Similarly in the previous year, 66 387 on economic responsibilities with little the Bar in 1999, 10% were women and sexual offences cases were recorded relief from their family responsibility,’ that the number stayed at 10% for a num- (SAPS Crime Statistics) and only 4 669 she said. ber of years. ‘According to the statistics sexual offences cases resulted in con- Doctor Horsten said South Africa has from 2003 to 2013 there was a very con- viction (National Prosecuting Authority, a patriotic, diverse and unequal society, stant growth of about 1% per year over 2014) equalling an 8% conviction rate. which does not allow the gender revolu- 11 years. In 2003, there was 14% women Speaking on policy and legislative tion to be embraced. She added that in at the Bar, in 2014, it was at 25%. One in framework, Ms Nsibande spoke on – many households the gender revolution every four advocates today is a woman. • Domestic Violence Act 116 of 1998, has either not started, with women dedi- The constitution of the Pretoria Bar has which provides for remedial measures cating all their time to child rearing and a provision that at Bar council level, at for victims of domestic violence through household chores, or it is in its first half least four members of the Bar council the issuing of protection orders from phase. have to be women, the council consists magistrate’s courts. This Act also allows Doctor Horsten asked what the judi- of 18 members,’ she said.
DE REBUS – OCTOBER 2015 - 14 - NEWS
Dr Gildenhuys said the Pretoria Bar that although progress is being made on the Bench. The minute women got also exempts expecting mothers from in the advocate’s profession, there were awarded silk, they are usually called to paying Bar fees, for about four months levels that are lagging behind, such as the Bench,’ she said. if you apply, adding that this makes it a the appointing of senior status. ‘Accord- little bit easier to retain your chambers ing to the statistics I have, as of the end and to return to your practice after hav- of last year, only 5% of all silks in the Nomfundo Manyathi-Jele ing taken maternity leave. country are women. I think it is also low [email protected] Dr Gildenhuys concluded by saying because of the low number of women
he Legal Resource Centre (LRC) held the ninth Bram Fis- cher Lecture at the University Bram Fischer lecture of Johannesburg on 4 Septem- ber. These lectures have taken stating that it was not going to be a lec- fought by many different people from Tplace since 1995, with the first speaker ture but rather a speech about her ex- many different angles. being former President Nelson Mandela, periences in Zimbabwe, ‘with a view to Ms Mtetwa said leaders of South Africa to commemorate the life of Bram Fis- encouraging South Africans not to fall should look back at the African National cher. into the same trap that we fell into in Congress’s ‘Ready to Govern’ document Bram Fischer (Abram Louis Fischer) Zimbabwe and the theme really is that and realise that when litigation is taking was a key figure in the anti-Apartheid we have to be constantly vigilant in the place in South Africa it is not to fight for movement. One of the key actions he observance of the law and that we have the rights of an American or British citi- is remembered for is defending former to keep our eye on the ball.’ zen, but a South African, one who is be- President Nelson Mandela at the Rivo- Ms Mtetwa made reference to the ing denied a right. The document states: nia Trial of 1963 and 1964, shortly after Magna Carta and said its theme had not ‘The Bill of Rights will be enforced by the which he was arrested. Mr Fischer then changed in 800 years, people did not courts, headed by a separate newly creat- went into hiding but was re-arrested and want others to lord their rule over them. ed Constitutional Court, which will have sentenced to life imprisonment and was However, from everyday experiences it is the task of upholding the fundamen- released when sick and died in 1975 at evident that the journey to that being a tal rights and freedoms of all citizens his brother, Dr Paul Fishers’, house in reality is still very long. She was adamant against the state or anybody or person Bloemfontein. In 1967 Mr Fischer was that people should constantly be vigilant seeking to deny those rights. The judges awarded the Lenin Peace Prize, in 2003 in ensuring that the rights in the Consti- will be independent, and will consist of the High Court of South Africa post hu- tution are enforced and not abused or men and women drawn from all sections morously readmitted him to the roll of neglected. of the community on the basis of their advocates, and in 2004 Stellenbosch Uni- According to Ms Mtetwa, there was no integrity, skills, life experience and wis- versity awarded him a post humorous colour to the people who fought against dom.’ This means that what a court de- honorary degree. Apartheid, when human rights are vio- cides is final, if the outcome is not liked The ninth lecture to commemorate lated there should not be an obsession then there are ways of appealing. There Mr Fischer was delivered by Beatrice with who is trying to enforce the rights. should not be interdependence between Mtetwa. Ms Mtetwa is an internationally Ms Mtetwa added that: ‘Apartheid was the executive and the judiciary, the two recognised Zimbabwean lawyer, being fought from all angles by all manner of are not supposed to influence each oth- labelled by the New York Times as ‘Zim- people, including of course, the likes of er, said Ms Mtetwa. babwe’s top human rights lawyer’. She Bram Fischer.’ She went on to mention Ms Mtetwa said lawyers, human rights is known for defending journalists and that when Zimbabwe gained its inde- defenders and activists must persistent- press freedom in her country. Ms Mtetwa pendence the white community in the ly and without apology work towards is the only other African, former Presi- country retracted from participating in attaining more transparency and ac- dent Nelson Mandela being the other, to public life. This was when it became easy countability in life. She added: ‘In Africa, receive the French Ludovic-Trarieux In- to label people. Ms Mtetwa, however, re- corruption has become the bane of the ternational Human Rights Prize. iterated that the battles against Apart- entire continent.’ She also said that eco- Ms Mtetwa started off her lecture by heid, independence and democracy was nomic growth has been stunted by cor-
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DE REBUS – OCTOBER 2015 - 15 - ruption and she very strongly believed on a South African statute that required Africans to make sure that as the pub- that if nothing is done to ensure that the government to do certain things. Her lic prosecutor’s (Thuli Madonsela) term corruption is rooted out then it would ‘bottom line’ on the issue as a whole was comes to an end, South Africa should shame all the human rights defenders that there was a court order given, which ensure that the person to take her place of the past, Bram Fischer being one of should have been complied with and en- cannot be cowed into doing anything them. Ms Mtetwa went on to say: ‘My forced, not ignored. She said that by let- other than what the institution requires view, in our country, certainly patronage ting the government not comply with the of him or her. The foundation has been has become the same as Apartheid. It is court order it sets a precedence. ‘If this laid out by advocate Thuli Madonsela, it the same in my view because it is based kind of defiance is allowed to take root must just be maintained. on inequality, the same inequality that without the legal profession and civil so- Ms Mtetwa ended her lecture with a we saw in Apartheid.’ This being that ciety ensuring that the court orders are warning to all South Africans to not fall the system only gives to those who have complied with, South Africa will be on its into the same trap, the trap of not deal- power and their beneficiaries, however, way to ruin,’ she stated. ing with defiance of the law that Zimba- Ms Mtetwa warned that anything that is South Africa’s electoral commission bwe fell into. South Africans should not based and built on inequality will even- is one of the few commissions which take its eye off the ball and speak up tually fall like a deck of cards. still functions properly, according to Ms when anything is being done that is not South Africa should be cautious of Mtetwa. It must therefore be protected right in terms of the law and our Con- the ‘little things which will divide the against corruption, otherwise South stitution. nation’. Ms Mtetwa said in reference to Africa will have the same problems as the different interpretations of the re- Zimbabwe, where the line has become cent Omar Al-Bashir case. She said that blurred as to where the electoral commit- the case was based on the South African tee starts and the political parties end. Isabel Janse van Vuren [email protected] Constitution and taken to court based With that in mind she advised all South
Legal practice of the future discussed at practice management conference
he Law Society of South of delivering services is the number one Africa (LSSA) and Legal Edu- priority, as well as the ‘big’ issue of fees. cation and Development He said lawyers need to explain fees to (LEAD) held its first an- their clients, so that their clients can un- nual Practice Management derstand them. He also added that law- Conference on 19 and 20 yers needed to manage the people they TAugust at the Bytes Conference Centre work with as there was a need for the in Midrand. The conference dealt with legal profession to have a more ‘human matters of everyday practice in regard to face’. ‘If staff and professionals work human resource management, financial well together, the clients will see and re- management and marketing. turn with further instructions,’ he said. The opening address was given by Mr Scott added that lawyers needed to Brendan Hughes, director of Infology. learn to manage themselves, however, Mr Hughes said it was an opportunity to they were not good with it as there had think about practice rather than work in been a number of articles written about practice. ‘Futureproofing your legal prac- the rising misery in the legal profession. tice is an important topic for lawyers to ‘The way of life of many lawyers is toxic focus on in a time where change is accel- leaving them depressed, unhealthy and erating, complexity is increasing and it is unhappy. There are law care helplines difficult to predict the future, five, ten or in the United Kingdom helping with even 15 years down the line. It does not stress … . Some of the stress triggers mean that we should stop trying to build Law Society of South Africa include failure to prioritising and del- strategies that see the profession trying Co-chairperson, Richard Scott, egating work, managing interruptions to deliver the important role that it plays welcoming delegates to the and procrastination… . We need to fig- in society and at the same time remain- Practice Management Conference ure out how to manage our time so that ing profitable and sustainable. The two held in August. overwhelming times do not become the need to work hand in hand,’ he said. norm, but rather isolated situations. I Richard Scott, Co-chairperson of the paperless office and the iCloud. The sec- think that we need, as lawyers, to achieve LSSA welcomed delegates to the confer- ond critical change was the way clients a balance in our life.’ ence. Mr Scott said the programme dealt dealt with law firms. ‘Gone are the days with many aspects of practice manage- where lawyers’ fees were unchallenged. What will the legal practice ment in legal firms and that lawyers have … Clients are shopping around to get the of the future look life? to concern themselves with management best deal or services, and that requires and the problems associated with it. Mr lawyers to change the way they are deliv- The keynote address was delivered by Scott highlighted two aspects that stood ered. … We need to focus on their needs,’ ENSafrica Chief Executive Officer, Piet out for him with regard to practice man- he said. Faber. He said it was not an easy task agement. The first was information tech- Mr Scott referred to the marketing of speaking about what the future of legal nology (IT) namely websites, e-mails, the services in a law firm and how the speed practice will look like, as nobody knew
DE REBUS – OCTOBER 2015 - 16 - NEWS what the future holds. Mr Faber said trainee or junior lawyer onto a matter, that lawyers needed to look at the ma- who does not really add value, but par- jor trends that are happening now and ticipated in the matter and then charged decide how they can position themselves for the requirement. … You have to find to meet these challenges for the future. new innovative ways of training and de- veloping your people,’ he said. Factors influencing the law • Disruptive technologies firm of the future Mr Faber said that the biggest factor that Mr Faber summarised the five major fac- will influence the law firm of the future tors that he thought would influence the is technology and that it has opened up a legal practice of the future: whole new world and referred to e-learn- • The rise of the client ing, document automation and assembly as well as lawyer matching platforms. Mr Faber said since the global financial He added that artificial intelligence will crisis in 2007/8 there has been a fun- become increasingly more important in damental change in the interaction be- the future. tween clients and their lawyers. Many ENSafrica Chief Executive Officer, writers call it the ‘more-for-less conun- Piet Faber, discussed the law firm of What should a future drum’. He said the legal in-house teams the future at the Practice practice look like? have gotten smaller, however, the best Management conference lawyers are sourced for in-house legal held in August. Mr Faber told delegates that the practice teams, which increased the capability of the future would have to become more client-focussed than in the past. ‘In the of in-house legal departments. Mr Faber influence the traditional business model past clients would come to the lawyer said in-house teams were strengthened, and you need to adapt your practice,’ Mr because they need the service. Lawyers which meant that in-house lawyers could Faber said. deal with a lot of the work themselves used to sit back and wait for the phone and only go to external lawyers if and • Profitability to ring and wait for the appointment to when the need arose. Mr Faber said the The third factor Mr Faber referred to was be made and wait for the client to come alternative fee arrangement had become the impact on profitability and pressure to you. For the future legal practice, you the norm and has changed the way cli- on fees. ‘This is going to force lawyers have to become the strategic trusted ents work with lawyers. ‘That unless law to look at their cost structures and how adviser to your client and in order to firms can adapt to that and could posi- they provide the service very carefully,’ do that you need to know your client’s tion themselves correctly, they will not said Mr Faber. business inside out, know their industry meet the challenges therein,’ said Mr Mr Faber added that a deliberate dis- and what legislative changes are coming Faber. tinction between the cost of product down the line and you need to know way ahead of time how to alert and warn the • Change the business model of the and overheads has to be made, because clients as to what is likely to affect them legal industry whenever profitability is under pressure, what lawyers tend to do is to cut their so that your client feels that you are tru- Mr Faber said lawyers today are seeing overheads. It is often misguided and ly a business partner,’ said Mr Faber. He a consolidation of the global market, a as Mr Faber said, ‘very often you need added that it is easy to say but not so massive trend occurring is the consoli- to spend more on various issues like easy to do, especially when you are busy dation of law firms, which means they marketing and business development’. and time is limited. are growing bigger. Mr Faber said the He added that where the real cost lies, Another aspect Mr Faber referred to legal profession still remains the most very often, is the cost of the department, was that of profitability and how lawyers fragmented profession in the world, but namely, the way services are delivered would have to price for profits. No one it would be best to look at accounting to the client and if professionals were can price for profits, unless you know firms and how they have consolidated utilised in an effective way and if there and understand the costs structure. into the big four. He added that this were products available to make pro- ‘How many of us, on a matter, sit down same process is happening in the legal cesses more efficient. and say: “This matter is going to cost me world. He added: ‘What is the relevance Mr Faber said lawyers will have to look this much and if I want to make a prof- to us you may ask? Well over the last two at outsourcing of non-core services, for it, the fee on this matter has to be X”. I to three years in South Africa, you have example, IT which does not have to be think very few of us do it. I think most of seen an entry into our markets of some done in-house, but can be outsourced to us say, my hourly rate is X amount and I of these firms that have grown big and an outside service provider. work by the hour … . More and more cli- international firms are here and they are ents are demanding that the lawyer must Law firm staffing here to compete in this market and they • figure out how much the cost will be, come with consolidated firms with finan- The demand of work-life balance de- they want to know. They are no longer cial muscle … and how do you position manded by younger practitioners was satisfied with you saying I do not know yourself for the future?’ another influence that lawyers will be ex- how long it is going to take, it is a litiga- Mr Faber also referred to the emer- posed to. Mr Faber said it was something tion matter and can amount to any num- gence of Legal Process Outsourcing that was here to stay and he added that ber of days and I charge by the hour. … (LPO) and virtual law firms, where firms law firms would have to start thinking [T]he pressure will be on for lawyers to no longer have offices but do everything about how they were going to organise say how much a case will cost,’ Mr Faber online through the Internet. He also re- a practice in a way to accommodate very said. ferred to the emergence of the ‘contract talented lawyers who they have put a lot Mr Faber also said lawyers will have to lawyer’, a lawyer who is not permanently of developmental time into. acquire project management skills and on the books but works from home and Mr Faber also referred to clients’ re- said it is an area that lawyers are not is employed if and when he or she is re- sistance to pay for work done by jun- normally familiar with, but, lawyers will quired. ior attorneys. ‘In the old days, a matter have to be project managers as well, in ‘These are some of the aspects that would come in and you would bring a order to manage the matters in such a
DE REBUS – OCTOBER 2015 - 17 - way that they can bring it in on budget LPOs to leverage on the strengths of and realise their profit. commoditised work and maintain cli- In his presentation, Mr Faber said ent relationships. The big challenge with firms have to accurately split work be- LPOs is that once I hand my client over to tween high-end premium work and com- a LPO agent that they will annex the cli- moditised work. He said that you need to ent. How do you make sure that your cli- Other know your own business and know what ent remains your client and trust the LPO lawyers you can charge at high end premium to do the low cost commoditised work,’ rates and what work is commoditised, said Mr Faber. He added that relation- that you have to find another solution ships have to be built to work that out. for, either charging very little for it or Mr Faber said investing in technolo- Partners you have to outsource it to an LPO. gies such as e-discovery, document auto- He said firms will have to provide law- mation, knowledge management and e- yer on demand services. ‘It means that learning, would form part of the practice Alternative you may not have all the lawyers who do of the future. Technology service work for your clients on the books, you Mr Faber said the law firm structure providers may have to contract them in for specific will have to include the following op- Graph: The future law firm structure jobs. It is one way to meet the “more for tions for the future, namely, non-partner less” conundrum,’ Mr Faber said. practitioners, flexible working arrange- Mr Faber continued by saying that law- ments, the firm will consist of a core cus, good legal expertise, good business yers should look at a having a dedicated firm with flexible on-call workforce as skills and the embrace technology. ‘You back office in a lower cost environment, demand increases. ‘In the graph [to the will need all four components in place to for example, the process-driven work left], your core partners will be in the meet the demands of the future,’ said Mr (like accounting, IT, etcetera) to a low middle, the core of the firm. Then you Faber. cost centre outside of where you normal- will have other lawyers, namely, contract ly practise your profession or you could lawyers or lawyers available online. Then alternatively, outsource the non-core your alternative service providers, name- functions to service providers or LPOs. ly LPOs and then technology,’ he said. Kathleen Kriel ‘I think the practice of the future In conclusion, Mr Faber said the prac- [email protected] would have to build relationships with tice of the future must have client fo-
n August, Deputy Judge President Phineas Mojapelo delivered an ad- dress at the South African chapter The role of law in of the International Association of Women Judges conference at Uni- curbing xenophobia sa titled ‘xenophobia and South IAfrican law’. rights of any foreigner who has entered As no one was arrested for his murder, With the recent upsurge of attacks on its territory, and any such person is un- Judge Mojapelo said: ‘Justice failed him foreign nationals, Judge Mojapelo noted der the South African Constitution, en- and his family’. it had placed this issue on the agenda. titled to all the fundamental rights en- Judge Mojapelo also noted the kill- He also noted that South Africa’s democ- trenched in the Bill of Rights, save those ing of another Mozambican, Emmanuel racy was born 21 years ago, however, it expressly restricted to South African Sithole, who was attacked by men in has an adequate legal framework to deal citizens.’ Alexandra township in Johannesburg with xenophobia, such as the Constitu- Judge Mojapelo said that there is no this year. tion which states: ‘Everyone has the right law against xenophobia so it ‘hides’ be- In the case of Mamba and Others v to freedom and security of the person.’ hind other crimes such as murder, rob- Minister of Social Development (T) (un- Other legislation of relevance in deal- bery, theft, assault, and defamation et- reported case no 36573/08, 12-8-2008) ing with xenophobia are the Promotion cetera. (Makgoba J), Judge Mojapelo said that: of Equality and Prevention of Unfair Dis- Another case Judge Mojapelo noted ‘[I]t is sometimes challenging, even to crimination Act 4 of 2000, Refugees Act was the much publicised case of S v the courts, when it comes to the type of 130 of 1998, the Protection from Harass- Smith en Andere [2002] JOL 9242 (T), socio-economic remedy to be awarded ment Act 17 of 2011 and the Immigra- which saw the conviction of four North- when a constitutional infraction has tion Act 13 of 2002. east Rand police dog unit policemen who been found’. Judge Mojapelo noted these Acts pro- videotaped themselves assaulting two The applicants were foreigners who hibit things such as – Mozambican men in 1998. were victims of xenophobic violence and • discrimination on grounds of race, gen- A more recent case reminiscent of the provided three months housing in a tem- der or disability; Smith case was that of Mozambican taxi porary camp as required under the Dis- • hate speech; and driver, Mido Macia, who was dragged aster Management Act 57 of 2002. • harassment. while handcuffed to a police van, which The government planned to disman- was heard in the Pretoria High Court on tle the temporary camps on 15 August Case law 25 August 2015. This incident was vide- 2008. The applicants then approached Judge Mojapelo noted the case of Kiliko otaped as well. the court to interdict the government and Others v Minister of Home Affairs Judge Mojapelo said Mr Macia’s mur- from dismantling the camps. The court and Others 2006 (4) SA 114 (C) at para der had an ‘eerie reminiscence’ of the found that the government was not re- 28 where the court held: murder of another Mozambican, Ernesto quired to provide accommodation. ‘The state, under international law, Nhamuave, who was set alight by a mob The application was dismissed with is obliged to respect the basic human in 2008. costs.
DE REBUS – OCTOBER 2015 - 18 - NEWS
In Abdi and Another v Minister of Judge Mojapelo said: ‘The case con- plicable legislation and land-use scheme; Home Affairs and Others 2011 (3) SA 37 firmed the right of foreign nationals, in and (SCA) The appellants, Somali citizens, the face of xenophobic attacks, not to be • that closure of businesses run by asy- fearing xenophobia, left South Africa for deported to dysfunctional home coun- lum seekers and refugees with valid per- Namibia. The Namibian authorities de- tries. This is an important right, which mits were unlawful. ported them to Somalia via South Africa. enjoys international recognition.’ The SCA held that: Once in South Africa they launched an Another recent case is that of Somali • asylum seekers/refugees are entitled urgent application for an interdict pro- Association of South Africa and Others to apply for or renew new business or hibiting the respondents forcing them to v Limpopo Department of Economic De- trading licences; and be sent to Somalia. They also sought to velopment, Environment and Tourism • the closure of businesses owned by ref- obtain a mandamus to force the Minister and Others 2015 (1) SA 151 (SCA). In the ugees/refugees with permits is unlawful. and Director-General of Home Affairs to Somali case, Musina spaza shop owners Judge Mojapelo said: ‘This case has facilitate the appellants’ readmission to were told they would need a permit to been lauded as a great victory for foreign the Republic. Their application was dis- continue operating. The police closed national who run informal businesses as missed. shops and confiscated stock of owners a means of living’. The order of the court a quo was set who did not produce permits. The po- In conclusion, Judge Mojapelo stated: aside by the Supreme Court of Appeal lice even closed businesses where valid ‘We must apply the laws which are there (SCA) and the respondents were directed permits were presented. The applicants, so that as the judiciary we may play our to release the applicants from detention. therefore, approached the High Court part in confronting and combatting the The first applicant was allowed to re- with an application of declaration – ugly scourge of xenophobia’. main in the country pending a decision • for their right to earn a living by self- on an application for asylum and the sec- employment; Kevin O’Reilly ond applicant was allowed to remain in • the right to apply for and to renew li- [email protected] accordance with his status as a refugee. cences and permits in terms of the ap-
Transformation discussed at JAA AGM
he Johannesburg Attorneys As- disadvantaged individuals entering the sociation (JAA) held their 73rd legal profession these figures should annual general meeting at Sun- be viewed with caution as they may eas- Tnyside Park Hotel in Johannes- ily deceive us into thinking that we are burg on 9 September. doing the right thing and that we need Guest speakers at the AGM included do nothing more. While doing the right Wayne Duvenhage of Opposition to Ur- thing is important, we should also be do- ban Tolling Alliance, who discussed civil ing things right by looking not only at disobedience; Justice Thokozile Masipa numbers but at the quality of the people who spoke about the role of the legal in the legal profession,’ she noted. profession in effectively transforming Judge Masipa added that there had the legal environment; and advocate Mi- been a concern about the lowering of chael Kuper SC, who discussed the newly standards on the Bench. ‘Whether we established China-Africa Joint Arbitra- agree with the sentiment or not this is tion Centre. the kind of thing that should keep all of Addressing the delegates, Judge Ma- us awake at night because, if it is true sipa said lawyers are the gatekeepers it is an indictment on the legal profes- of our justice system and without them, sion. The very fact that someone has there can be no justice system worth Judge Thokozile Masipa discussed expressed such a concern should trigger talking about. ‘Without good solid law- the role of the legal profession in an introspection and should motivate yers, who have their hearts in the right effectively transforming the legal us to do something about it. If there is place, whatever justice system may exist, environment at the Johannesburg any truth in the concern above then, can be of no use to anyone. We are fortu- Attorneys Association Annual for the cause and the solution we need nate to have a good Constitution in this General Meeting in September. look no further than the legal profes- country. That Constitution, however, will sion, especially the Side Bar and the Bar, not avail us unless we have the right peo- meaning attached to transformation, because that is where most members of ple to make that Constitution work for some people might think we have trans- the Bench come from. The quality of the everyone in this country,’ she said. formed the legal profession to an extent Bench is merely a reflection of the qual- that we can now pat ourselves on the ity one finds among practitioners. After Transformation back and relax, while others think that all practitioners of today are the judici- Judge Masipa said there were numer- we still have a long way to go. I belong to ary of tomorrow,’ she said. ous forums that dealt with the issue of the latter group.’ Judge Masipa said she was of the view ‘transformation’ and many initiatives Judge Masipa said the large amount of that transformation and empowerment have been tried with varied results. She university graduates may look impres- were inextricably linked. Transformation said that since the start of democracy, sive, but she asked where black gradu- without empowerment is of no value to the words ‘transformation’ and ‘empow- ates and women graduates go? ‘We do anyone and real transformation had to erment’ had been bandied about in vari- not see enough of them in motion court, be coupled with a motivation and the ous circles, with different understanding for example, and there are hardly any in willingness to empower. Judge Masipa of what the words really entail. Judge commercial matters. Even though there referred to three examples aimed at Masipa added that: ‘Depending on the may be a great number of previously transformation:
DE REBUS – OCTOBER 2015 - 19 - NEWS
• Mergers as vehicles of ly happens. In fact there are numerous briefing entity. The power to make the transformation examples of blacks who refuse to brief Policy on Fair and Equitable Briefing Pat- Judge Masipa said South Africa had seen black practitioners and women who re- terns workable rests mainly in the hands a number of mergers across the colour fuse to brief other women. We have a of attorneys. line and there were many reasons why serious challenge in that regard,’ Judge ‘Quite often one hears the excuse that law firms wanted to merge and com- Masipa said. black advocates and women advocates are not being briefed in meaningful work pared mergers to a marriage where there • Briefing patterns is a sense of give and take. She said if because they are lazy, they have no ex- Judge Masipa referred to The Cape Bar’s one party felt that he or she was short perience or they are just not capable of Model Policy on Fair and Equitable Brief- changed, the marriage will not last. Lack doing complex work. These are unfor- ing Patterns, dated 8 March 2006 (www. of trust, meaningful communication and tunate misconceptions, which have no capebar.co.za) where the Cape Bar rec- common vision is a deadly combination. place in the modern South Africa. My ognised the existence of discriminatory Judge Masipa said that when it came to question is: How are you going to know briefing patterns and their negative ef- mergers, there was lack in the willing- whether a person is lazy or incapable of ness to embrace change and the willing- fect on the profession and propose to do doing work, if you do not give that per- ness to take risks. something to remedy the situation. son work? Similarly how is inexperienced The Cape Bar aims: ‘To facilitate the counsel going to garner experience if no • Intake of candidate attorneys realisation of the full potential of black one will give him an opportunity to do In her speech, Judge Masipa said more and women advocates, and by so doing, so? What people seem to forget is that and more white law firms were select- increase the race and gender composi- those lawyers, who today are in great ing candidate attorneys from previous tion of the Bar and the building up of demand because of their expertise, are disadvantaged groups, which was a good a pool of experienced black and wom- where they are today because some time thing. She said that competition between en candidates for appointment to the ago, someone dared to take a risk and candidates was very high and newly Bench’ (at para 4). give them work when they had no experi- qualified law graduates, irrespective of Judge Masipa referred to para 5 in the ence at all. No one was born with expe- race or gender, would have to stand out document where the Bar intended to im- rience and there is no subject at school when seeking articles at a good law firm. plement the policy, which states: called experience … . Someone has to Judge Masipa compared two young ‘In selecting counsel, all reasonable en- take a chance and a risk. For a risk it is. black fellows seeking articles, namely – deavours should be made to: But it is a risk worth taking,’ she said. • the one whose parents sacrifice their (a) identify black and female counsel time and money to ensure that he or in specific practice and interest areas; Ignorance and resistance she attend good private schools. He or (b) ensure that black counsel receive to change she speaks impeccable English, with a fair and equitable share of briefs, hav- Judge Masipa said in her view resistance excellent grades and comes across as ing due regard to the number of briefs to change was stronger where there was confident and obviously stands a better delivered to counsel in any one year, the ignorance. She said that a little explana- chance of competing with other similar- nature and complexity of the work in- tion or reassurance to a client is often ly qualified youngsters from other race volved and the free value of such briefs; all that is needed to remove discomfort groups; and (c) regularly monitor and review the and fear of the unknown. Judge Masipa • the other stays in Diepsloot in a shack engagement of black and female coun- added that ‘a party rarely loses a case be- with a single mother and four other sib- sel; and cause counsel is inexperienced. Yes, as lings, the fellow who funded his or her (d) regularly report internally on the a new practitioner, you will fumble and education through distance education extent to which the said measures have stumble (maybe to the irritation of the by washing cars and pushing trolleys for been implemented.’ judge), but the next time you will do bet- customers at a supermarket. This fellow Judge Masipa said she was encouraged ter and better until you get it right. That speaks with a heavy African accent, his about the information and that the Cape is how it is in life and that is how it is or her grammar is all wrong and he or Bar recognised the problem and sought in every profession or trade. And that is she does not come across as confident. to do something about it. ‘I do not know how it is in law.’ Introducing the Discovery Financial Adviser Graduate Programme. ‘In many cases such a youngster does the current situation as I did not get the In conclusion, Judge Masipa said the not stand a chance simply because he opportunity to research this, but, what transferring of skills is needed for real does not conform to the world view of is clear is that if the Cape Bar followed transformation. ‘We have the law on our Discovery is a pioneering insurer with uniquely positioned businesses and an innovative business model that is changing the way what an attorney should look like. Now up on its intention a lot would have been side. In fact we are obliged by the Con- let us get back to the fellow who has done to make transformation a reality’. stitution to transform. We have adequate traditional insurance works. We are SA’s number 1 life insurer, we administer SA’s largest open medical aid, we are SA’s fastest been to a good private school, a good With regard to the skewed briefing resources in this country but we must be growing short-term insurer, and our clients have over R50 billion invested with us. In addition, our Vitality programme is recognised law school and obtained good grades. patterns, Judge Masipa said that they willing to share them wisely. It does not He manages to get articles in a good are shared by other advocates elsewhere matter how much we spend on the edu- as a worldwide leader in incentivised wellness, resulting in global expansion opportunities. Discovery also operates in the UK, China, law firm. … He does extremely well and and added that Advocates for Trans- cation and training of lawyers, if we do Singapore, Australia, Europe and the US through various business lines. is an asset to the firm. Eventually he is formation (AFT), recently, raised con- not follow this up with transfer of skills made one of the directors. … Is the cerns about the reluctance of the state, we are wasting our precious resources. We are looking for outstanding candidates to apply for the Discovery Financial Adviser Graduate Programme, an unparalleled path transformation initiative successful? parastatals, state owned enterprises and We need a change of heart, we need to of professional development, mentorship and financial rewards. Not necessarily. Whether there has been private attorneys to give work to black change our mind set and, we need com- real transformation will depend on what counsel and to women. ‘A senior mem- mitment. We owe it to ourselves, to this fellow does with his knowledge and ber of the AFT bemoans the fact that big transform the legal profession and we To secure your appointment, send your CV and cover letter to [email protected] his success. If what he has gained from law firms, parastatals and some govern- also owe it to those who will come after his firm only benefits him and his firm ment departments do not brief women us. If we do not, the coming generations real transformation has not taken place. at all, especially black women. This, will rightly accuse us of dereliction of For real transformation to take place among other things, has forced a num- duty and cowardice,’ Judge Masipa said. he would have to persuade his firm to ber of women to abandon their chosen www.discovery.co.za @Discovery_SA discoverysouthafrica empower more people from “previously profession,’ she said. Kathleen Kriel disadvantaged backgrounds” or quit the Judge Masipa added that the Bar may [email protected] Discovery is an authorised financial services provider. GM_32724DIS_17/09/2015_v9 firm and do the work of empowerment assist in transformation but the Bar has with or without his firm. Sadly this rare- a limited role in this regard as it is not a q
DE REBUS – OCTOBER 2015 - 20 - Introducing the Discovery Financial Adviser Graduate Programme.
Discovery is a pioneering insurer with uniquely positioned businesses and an innovative business model that is changing the way traditional insurance works. We are SA’s number 1 life insurer, we administer SA’s largest open medical aid, we are SA’s fastest growing short-term insurer, and our clients have over R50 billion invested with us. In addition, our Vitality programme is recognised as a worldwide leader in incentivised wellness, resulting in global expansion opportunities. Discovery also operates in the UK, China, Singapore, Australia, Europe and the US through various business lines.
We are looking for outstanding candidates to apply for the Discovery Financial Adviser Graduate Programme, an unparalleled path of professional development, mentorship and financial rewards.
To secure your appointment, send your CV and cover letter to [email protected]
www.discovery.co.za @Discovery_SA discoverysouthafrica
Discovery is an authorised financial services provider. GM_32724DIS_17/09/2015_v9 LSSA NEWS
Compiled by Barbara Whittle, communication manager, Law Society of South Africa, [email protected] LSSA meets Brazilian and Chinese delegations as part of its BRICS Legal Forum agenda
t the end of 2014 then LSSA Co-chairperson, Max Boqwana, repre- sented the Law Society of South Africa (LSSA) at the first BRICS Legal Forum in Brasilia, Bra- Azil and signed the Brasilia Declaration, which outlines cooperation among the legal communities of the BRICS coun- tries. Building on this initial contact, the LSSA hosted representatives of the Bra- zilian Bar Association and the China Law Society earlier this year. LSSA Co-chairpersons, Busani Mabun- da and Richard Scott met with the repre- sentative of the Brazilian Bar Association in South Africa, Saul Tourinho Leal, in Law Society of South Africa (LSSA) Co-chairpersons Busani Mabunda (left) August in Pretoria and signed a memo- and Richard Scott (right) sign a memorandum of understanding on behalf randum of understanding between the of the LSSA with Brazilian Bar Association representative, two organisations for mutual support Saul Tourinho Leal, in Pretoria in August this year. and exchange of information. The Co- chairpersons paid a courtesy visit to the Brazilian Bar Association in September and Mr Mabunda will be attending the by Co-chairperson Busani Mabunda and The objectives of the annual general meeting of the Brazilian council members Krish Govender and Bar Association in November this year. David Bekker. Brasilia Declaration Also in August, the LSSA held two The Co-chairpersons also met, later In order to foster and develop coopera- meetings with representatives of the in August, with the Bao Shaokun, Vice tion among the legal professions in the profession in China. LSSA Co-chairper- President and Secretary-General of Chi- BRICS countries, the signatories to the son Richard Scott chaired a meeting na Law Society and other delegates in Brasilia Declaration listed the objectives between LSSA representatives and aca- Sandton to discuss arrangements for of the BRICS Legal Forum as follows: demics from the East China University of the sixth Forum on China-Africa Coop- • To promote legal diplomacy, bring Political Science and Law, which is organ- eration (FOCAC) to be held in Cape Town together the legal communities of the ising the second BRICS Legal Forum to be in November, as well as developments BRICS member states for closer coop- held in Shanghai, China in October. The around the China-Africa Joint Dispute eration, and promote exchange of legal LSSA will be represented at the Forum Resolution Mechanism. theory and practice. • To use and develop law as an instru- ment of social change for development, as well as for building cooperation among the peoples of the BRICS nations, facili- tate BRICS cooperation mechanisms, and explore more international space for the development of BRICS nations. • To make joint efforts for the reinforce- ment and strengthening of the rule of law, social, economic and human rights. • To cooperate in advancing the status of legal professionals, in developing the le- gal profession and the scope of its activi- ties and in strengthening the activities of From left: David Bekker, Krish Govender and Co-chairperson Richard Scott the legal profession and the judiciary in represented the LSSA at a meeting in Pretoria with Prof Du Zhichun (centre) the BRICS countries. and Prof Xia Fei (right) from the East China University of Political Science • To interact with international legal as- and Law, which is organising the second BRICS Legal Forum to be held in sociations worldwide for the purpose of Shanghai in October. Also pictured is LSSA Chief Executive Officer, Nic Swart advancing the objectives mentioned in (back) and Prof Rushiella Songca, Executive Dean of the Unisa College of Law. the declaration.
DE REBUS – OCTOBER 2015 - 22 - LSSA Council finalises position paper on the powers and functions of Public Protector’s Office
n February this year the Law Society the basis of irrationality, or for an irra- of South Africa (LSSA) held a collo- tional reason. However, it is unclear at quium on the powers and functions this stage how it will be determined if of the Office of the Public Protector it was rejected on an irrational basis or in cooperation with the Centre for not, and to whom it will fall to make this IHuman Rights at the University of Pre- determination. toria (see News ‘Public Protector’s find- • Recommendations by the Public Pro- ings not legally binding’ (2015 March DR tector are steps suggested to remedy 6)). Since then, the LSSA Council has dis- the maladministration and can never be cussed the positions at the colloquium binding. and in July this year it finalised its posi- • Those in power should treat findings tion paper on the powers and functions of the Office of the Public Protector with of the Public Protector’s office, pending the respect and care they deserve and the issue being decided by the Supreme avoid using technical defences to flout Court of Appeal and the Constitutional these findings. Court. • The Office of the Public Protector must The position paper is available on the Public Protector Advocate, ensure that good governance will be LSSA website at www.LSSA.org.za. Thuli Madonsela, at the LSSA Colloquium on the valued above all else. This instils trust Overall outcome of the Powers and Functions of the among the general public that corrup- Office of the Public Protector earlier tion and maladministration in state and colloquium this year. public entities will be exposed and dealt The LSSA highlights the outcome of the with appropriately. The Office of the colloquium discussions as follows: • Findings of the Office of the Public Public Protector is an institution that • Findings of the Office of the Public Pro- Protector are not binding. The only ex- should broaden access to justice for tector are issues of fact (that is, whether ception to this rule is when a govern- the poor and marginalised. Therefore, or not there was maladministration). ment institution rejects the findings on recognising that the Office of the Public
DE REBUS – OCTOBER 2015 - 23 - Protector cannot be granted all-encom- ficient, cost-effective, transparent and ing. Whether an organ of state acted irra- passing powers, it must still be able to accountable governance, and is tasked tionally is still a matter to be decided by execute its duties in such a way as to with providing an easy, accessible, and the courts on a case-by-case basis. ensure maximum effectiveness, and pro- cost-free mechanism for the public to • The LSSA supports the fact that the Of- mote a culture of respect to its findings. report maladministration and abuse of fice of the Public Protector’s main weap- • Only the Office of the Public Protector power. on, at the moment, is its power to place can determine what ‘appropriate reme- However, as a key stakeholder in the findings and recommendations in the dial action’ is in each case. legal arena the LSSA also respects the public domain and appeal to the moral • The onus falls on the Office of the Pub- importance of the judiciary, its inde- conscience of state organs. lic Protector to have the imagination and pendence in handing down judgment in The LSSA resolved to: creativity to determine the action that cases of public interest, and its power to • Do its part to urge state organs to re- will achieve the desired result, regard- effectively set precedents on issues of spect their obligations in terms of the less of whether there is authority or not. law. Constitution when dealing with findings • It is, therefore, important that the Of- In the light of the above, the LSSA stat- and recommendations from the Office of fice of the Public Protector does not get ed its official position to be as follows: the Public Protector. caught up in the debate regarding the • Respect for the Office of the Public • Engage in discussions to explore means binding nature of its findings, but to Protector as a Chapter 9 institution must through which national respect for the rather flesh out the appropriate reme- be created to support constitutional de- Office of the Public Protector can be cre- dial action and place its findings in the mocracy. ated and promoted. public domain. However, the ultimate • The LSSA supports the assertion that • Engage in a consultation with the Of- decision as to whether government has there is a definitive distinction between fice of the Public Protector to explore abided by the Constitution will still rest findings and recommendations by the possibilities where the legal profession with the courts. Public Protector’s Office. can be of assistance in improving the ef- The LSSA acknowledges that it is the • Findings of the Office of the Public Pro- ficiency of the Office. role of the Office of the Public Protector, tector are not binding unless an organ of • Assist in creating and promoting a as a Chapter 9 institution, to strengthen state rejects them on an irrational basis. proper forum, consisting of all key stake- constitutional democracy and promote • Pending clarity on the interpretation of holders, for constructive interaction re- a culture of accountability among state ‘irrational basis’, the LSSA will embrace garding findings and the appropriate im- organs. It also recognises that the Office the precedent set by the court that at plementation of recommendations. of the Public Protector must ensure ef- first instance the findings are not bind- Attorneys’ profession pays tribute to Justice Thembile Skweyiya
xpressing the condolences of basic services effectively, efficiently and the attorneys’ profession to the fairly and the concomitant public law family and friends of retired right of people to receive those services Constitutional Court Justice, in that manner. Some hailed this deci- Thembile Skweyiya, who passed sion as signalling the re-emergence of Eaway on 1 September, Law Society of the value of Ubuntu in the relationship South Africa (LSSA) Co-chairpersons, between the government and its citizens. Busani Mabunda and Richard Scott said The Co-chairpersons recalled Justice Justice Skweyiya – who started his legal Skweyiya’s words to law students at the career as an attorney in 1968 – went on Fort Hare University, where he was Chan- to serve the nation with great distinction cellor: ‘We should all be proud of the as an anti-apartheid practitioner, advo- strength and independence of our judici- cate, judge of the High Court, as well as ary. It is this independence which allows a Justice of the Constitutional Court. us all – judges, magistrates and lawyers They added: ‘Justice Skweyiya has – to uphold the rights of South Africans. been widely regarded as the first He reminded us that the Constitution African to obtain silk in South Africa. He not only tells us what the law must be, practised as an advocate not only in the it also tells us what kind of lawyers and commercial sphere but increasingly in jurists we must be: political, human rights and civil liberties Justice Thembile Skweyiya and “To be a lawyer in South Africa today matters, and represented South Africans his wife, Sayo Skweyiya, at his you must act with integrity, and in do- across the ideological political spectrum retirement ceremony at the ing so you will ensure that the judiciary who had been arrested and detained Constitutional Court on 6 May 2014. remains independent and that the rule of for opposing a racist and oppressive re- law remains … To be a lawyer in South gime. Through his 13-year tenure (two as seph and Others v City of Johannesburg Africa today means that you are commit- an Acting Judge) on the Constitutional and Others 2010 (4) SA 55 (CC) was de- ted to this ideal – that you will play your Court Bench, Justice Skweyiya made an scribed as an exciting development in part in creating a democratic society impact on the body of constitutional ju- South African jurisprudence, which in ef- where every person can realize the rights risprudence and indeed made significant fect broadened the scope of application protected in the Bill of Rights.”’ and bold contributions to the develop- of administrative law procedural fair- Mr Mabunda and Mr Scott noted that ment of our constitutional democracy.’ ness to apply to decisions related to the indeed, Justice Skweyiya had been such In fact, his 2009 judgment in Leon Jo- public law duty of the state to provide a lawyer and such a judge.
DE REBUS – OCTOBER 2015 - 24 - LSSA NEWS
Mr Mabunda, in his capacity as Presi- hind his legal knowledge and expertise tributes of fairness, independence and dent of the Black Lawyers Association in the body of judgments handed down objectivity were particularly compelling (BLA), said history would remember when he was on the Bench and in the in Judge Skweyiya as is evidenced in the Justice Skweyiya as a renowned human rich legal jurisprudence he developed high profile cases in which he appeared rights lawyer who fought the battles of throughout his legal career as a selfless as counsel and other cases which he oppressed South Africans in spite of se- advocate of the oppressed. dealt with as a judge especially in re- rious life threats both to himself and his KwaZulu-Natal Law Society president spect of the constitutional prescriptions family. ‘He put lives and the plight of his Manette Strauss said that, in his practise of socio-economic rights and account- fellow countrymen above his personal as an advocate – a first in the black com- ability in governance.’ interests,’ he said. munity – and subsequently as a judge, Ms Strauss added that Justice Skwey- Mr Mabunda added that the BLA was Justice Skweyiya had manifested the iya gave the law and, more broadly, the deeply troubled by the void left in our qualities of integrity, impeccable hones- Constitution a liberal purpose of inter- society due to the death of this legal ty, a keen intellect and decorum, which pretation to enable the Constitution to icon. ‘The death of this legal giant came underpinned the esteem, status and dig- play a creative and dynamic role in the at the most crucial moment in the devel- nity of our courts. The modesty of his expression and the achievement of the opment of our legal jurisprudence post person and his abiding courtesy were ideals and aspirations of our nation and the Apartheid era.’ He added, however, his renowned attributes. She added: ‘He in the articulation of its values. that BLA was comforted and consoled by practised his craft at a level to which his the fact that Justice Skweyiya had left be- colleagues aspired to. In addition, the at-
LSSA to co-host 6th Forum on Assessment China-Africa Cooperation Legal Forum revolutionised at the School for Legal Practice
ll students who attend the ten centres of the School for Legal Practice are sub- jected to the same, national assessment. AThe School for Legal Practice has moved away from the examination method as the only way to test students in a practical legal training environment. The purpose is to use relevant methods that comply with the principles of fair- ness and authenticity as far as possible and that provide reliable results. Although certain testing is still done by way of closed book testing, the ulti- mate test is a broad-based competency Front from left: LSSA’s Professional Affairs Manager, Lizette Burger; test, which the students sit for at the end Special Director of Public Prosecutions, National Prosecuting Authority, of the programme. Students are given a SOCA Unit, advocate Thoko Majokweni; and Chief Executive Officer case study in advance and are allowed of the LSSA, Nic Swart. Back from left: Director: Administration, Office to take in material. The questions are of the National Director of Public Prosecutions, George Maphutuma; practice-based and testing competency Senior Manager: Response and Stakeholder Management, Foundation in more than one discipline. for Professional Development, Seconded to the National Prosecuting Further testing is done through obser- Authority, Genevieve Devereux; and Senior Legal Official, vations during trial advocacy and case- Ricardo Wyngaard. work, online testing and assignments. On some occasions testing is done in he Law Society of South Af- 27 August to discuss their respective groups, especially when ‘firm’ work is rica (LSSA) was invited to a roles, as well as discuss what can be done. joint meeting with the Chi- done collectively and individually for The school has acquired valuable ex- nese Law Society and the the successful co-hosting of the event. perience in assessment processes over National Prosecution Au- The event will bring together lawyers the past few years, in an attempt to Tthority (NPA) on 17 August. The LSSA from the African continent and China make a viable proposal for assessment was asked to participate in co-hosting to discuss, among others, the role of in the new Legal Practice Act 28 of 2014 the 6th Forum on China-Africa Coop- lawyers in facilitating trade. dispensation. eration (FOCAC) Legal Forum set to The assessment element is steered by, take place towards the end of Novem- Bongi Nkohla, an attorney and director ber 2015. The LSSA subsequently had Ricardo Wyngaard [email protected] of the East London school since 2005. a productive meeting with the NPA on q
DE REBUS – OCTOBER 2015 - 25 - PEOPLE & PRACTICES People and practices Compiled by Shireen Mahomed
Please note, in future issues, five or more people featured from one firm, in the same area, will have to submit a group photo. Please also note that De Rebus does not include candidate attorneys in this column.
Phatshoane Henney Attorneys in WerthSchröder Inc Mkhabela Huntley Adekeye Inc in Bloemfontein has two new promotions. in Johannesburg has Johannesburg erratum. appointed Kimberley Ilze Strydom has been Emmanuel Tivana has Ross as an associate. promoted to a direc- been promoted to an She specialises in tor in the litigation associate in the com- general, liability and department. mercial law depart- insurance litigation. ment.
Cliffe Dekker Stacey Bartlett has Hofmeyr in Cape Kagiso Kgatla has been promoted to a Town has appointed been appointed as an director in the prop- Fatima Ameer-Mia as associate in the com- erty department. a senior associate in petition law depart- its technology, me- ment. dia and telecommu- nications practice.
PRACTICE MANAGEMENT
By Zelda Normal practice or unsound Olivier and flawed routines
n Margalit v Standard Bank of tion of conveyancing transactions – may tions cannot be delegated to non-quali- South Africa and Another 2013 (2) open up your conveyancing department fied staff. A quick study of the applica- SA 466 (SCA) the court stated that, to unnecessary and expensive profes- ble legislation will show that there are in a claim against a conveyancer sional negligence claims. certain responsibilities that must and based on negligence, it must be should always remain in the hands of the shown that the conveyancer’s mis- The duties and conveyancer. Itake resulted from failing to exercise a responsibilities of the In terms of s 15 of the Deeds Regis- degree of skill and care that would have tries Act 47 of 1937 (the Act), certain been exercised by a reasonable convey- conveyancer deeds can only be prepared by a convey- ancer in the same position. The responsibility for all conveyancing ancer. This includes – Many conveyancers operate with a matters, from the date you receive the • deeds of transfer; staff complement consisting of secretar- instruction to the date you finally pay • mortgage bonds; ies, candidate attorneys and sometimes out the proceeds to the seller, always • certificates of title; or paralegals (non-qualified staff) to assist lies with the conveyancer, who needs to • other certificates of registration. them in the drafting of documents and properly supervise the registration of all All powers of attorney to transfer/ the general running of conveyancing transactions and the correct payment of mortgage, special or general powers of matters and the conveyancing depart- the proceeds. A conveyancer can never attorney, applications or consents, which ment. be heard to say that any problem that are required to be lodged in the Deeds Modern technology, like e-mail com- has arisen is the result of an error or Registry, can be prepared by an attorney, munication, has made it much easier for omission on the part of any of his staff notary public or a conveyancer. Howev- conveyancers and their staff to commu- members (John Christie Fourie’s Con- er, where such documents are prepared nicate with their clients and to stream- veyancing Practice Guide 2ed (Durban: by a notary public or attorney, they must line the running of a usually busy con- LexisNexis/Butterworths 2004)). be countersigned by a conveyancer. veyancing department. It is, however, very clear from nu- If one reads s 15A together with reg However, too much reliance on mod- merous professional indemnity claims 44A of the Act, it is clear that a con- ern technology and your competent staff reported to the Attorneys Insurance In- veyancer, attorney or notary public – who might indeed have extensive ex- demnity Fund (AIIF) that conveyancers who signs the prescribed preparation perience in the preparation and registra- may have forgotten that certain func- certificate on any document lodged for
DE REBUS – OCTOBER 2015 - 26 - PRACTICE MANAGEMENT registration accepts, in broad terms, the includes an attorney, was published in mation prescribed by the regulation he responsibility for the correctness of the GN 903 GG 19033/10-7-1998. or she shall ask the deponent – information set out in that document, Section 7 of the Commissioner of • whether he or she knows and under- as well as miscellaneous other matters, Oaths Act provides: stands the contents of the declaration; such as taking the responsibility for ‘Any commissioner of oaths may, • whether he or she has any objection to verifying that persons acting on behalf within the area for which he is a commis- taking the prescribed oath; and of companies, close corporations, trusts sioner of oaths, administer an oath or af- • whether he or she considers the pre- and other associations are duly author- firmation to or take a solemn or attested scribed oath or affirmation to be binding ised to act and that such institutions declaration from any person: Provided on his or her conscience’. have the power and capacity to enter that he shall not administer an oath or Once the deponent acknowledges and into the transaction concerned. affirmation or take a solemn or attested confirms the above, the commissioner As Leach AJ stated in Margalit, ‘As I declaration in respect of any matter in will administer the oath or affirmation, have said, a conveyancer should fastidi- relation to which he is in terms of any and the deponent will sign the declara- ously examine all relevant documents’ regulation made under section ten pro- tion in the presence of the commissioner (at para 29) and: ‘To avoid causing such hibited from administering an oath or af- of oaths. harm, conveyancers should therefore be firmation or taking a solemn or attested When certifying documents, a copy fastidious in their work and take great declaration, or if he has reason to believe of a document, which must be certified care in the preparation of their docu- that the person in question is unwilling as a true copy of the original, must be ments. Not only is that no more than to make an oath or affirmation of such compared with the original document common sense, but it is the inevitable declaration.’ and the commissioner of oaths must consequence of the obligations im- In terms of the regulations made un- make sure that the two documents are, posed by s 15(A) of the Act as read with der s 10 of the Commissioner of Oaths in fact, the same. If the commissioner reg 44, both of which oblige conveyanc- Act (GN R1258 GG 3619/21-7-1972 of oaths is sure that the copy is in fact a ers to accept responsibility for the cor- (Amended by GN 1648 GG 5716/19-8- true copy of the original document and rectness of the facts stated in the deeds 1977, GN R1428 GG 7119/11-7-1980 and no unauthorised amendments have been or documents prepared by them in con- GN R774 GG 8169/23-4-1982)), ‘an oath made, he or she must stamp that he or nection with any application they file in is administered by causing the deponent she certifies that the document is a true the deeds office’ (at para 26). to utter the following words: “I swear copy of the original document and that In terms of the Justice of the Peace and that the contents of this declaration are there are no indications that the original Commissioner of Oaths Act 16 of 1963 true, so help me God,” or in the case of document has been altered by unauthor- (the Commissioner of Oaths Act) a Minis- an affirmation: “I truly affirm that the ised persons. Thereafter, the commis- ter may appoint any person or designate contents of this declaration are true.” sioner of oaths must append a signature the holder of any office as a commission- Before a commissioner of oaths ad- together with his or her name and des- er of oaths. A list of such persons, which ministers to any person the oath or affir- ignation.
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DE REBUS – OCTOBER 2015 - 27 - Normal conveyancing this information that numerous convey- the correctness of the information in the ancing departments appear to have lost deed when signing the preparation cer- practice the plot. This may consequently result tificate in terms of s 15A of the Act. In order to establish the correct infor- in a professional negligence claim. The accounting and payment of the mation relating to the parties involved When perusing conveyancing files re- proceeds is often also left to non-qual- in a conveyancing transaction (eg, the lating to professional negligence claims ified staff and payment authorisations correct names, identity number, marital reported to the AIIF, it is clear that con- are not properly checked. This has often status, authority), which needs to be cor- veyancers and/or attorneys have forgot- led to incorrect payments, payments to rectly reflected in any deed, conveyanc- ten their duties when commissioning incorrect parties, fraud and falling prey ers have developed several practices to documents. Often this is all too evident to scams. The over-reliance on electronic source and verify this information. This communication has also opened convey- from the prominent e-mails sent to cli- includes, making certified copies of the ancers up to being scammed. ents, found in the conveyancing files and parties’ identity documents and request- These unsound and flawed routines, attaching the relevant documents and af- ing the parties to sign various affidavits some of which are common practice fidavits with a request to sign and return confirming their marital status, insol- within the majority of conveyancing de- same to the conveyancer’s office with vency status, identity number and vari- partments, have resulted in numerous ous other information. copies of the client’s identity document professional negligence claims against This practice has also developed and other relevant documents. conveyancers. In many cases, immovable around the additional requirements Alternatively the client does indeed property has been transferred without stipulated in the Financial Intelligence come to the conveyancer’s office, but the proper authority or even without the Centre Act 38 of 2001 (FICA). In terms instead of meeting with the conveyanc- knowledge of the true owner of such im- of FICA, firms of attorneys are account- er, is greeted by the non-qualified staff movable property. able institutions and must, therefore, member, who simply points out the plac- The practice of these unsound and comply with all the legal requirements es where the client needs to append his flawed routines amounts to a failure to of FICA. A conveyancer needs to take signature. Copies of identity and other exercise that degree of skill and care that all appropriate steps to properly iden- relevant documents are accepted or would have been exercised by a reason- tify and verify all natural and artificial made by the non-qualified staff member. able conveyancer in the same position. or juristic persons involved in the firm’s The commissioning and certification of conveyancing transactions. Such proof these documents are then done after the of identity and other information, which fact, which is in contradiction with the is required in terms of FICA, must be re- clear regulations made under the Com- tained by the conveyancer for a period missioner of Oaths Act. of five years. If the documents on which a convey- Unsound and flawed ancer relies to ensure that the informa- Zelda Olivier LLM (NWU) is a senior tion in the deed is correct, are not prop- legal adviser for the Attorneys Insur- routines erly commissioned or certified, then he ance Indemnity Fund in Centurion. It is in the sourcing and verification of can certainly not take responsibility for q
By Jeanne- Leading female leadership Mari Retief development
he Law Society of South Africa identified through the LSSA’s interaction out on opportunities. Those who already (LSSA) supports growth in the with women in the profession include: have children struggle to find the time to number of women heading • Difficulty in balancing work and family. commit to both work and family. firm management and women • A need for flexi-hours and home-offices. Women tend to think differently than in the judiciary. Therefore, Le- • Disrespect from male colleagues and men when it comes to business and it Tgal Education and Development (LEAD) clients. seems that they tend to avoid confronta- launched a pilot project in November • Inequality in promotions and salary tion and rather focus on working harder 2014 to equip and empower female at- scale. and putting in longer hours to achieve torneys to understand certain key con- Women often portray various roles (ie, their career goals. However, from the cepts of significant leadership. Through wife, mother, attorney) and the challenge programme, the general feeling still this initiative, LEAD wishes to strength- of balancing work and family becomes seems to be that men are promoted more en leadership capacity in law firms for stressful at times. This leads to various often than women and women struggle purposes of business growth and excep- women opting out of private practice to obtain the same salary scale as men. tional service to society. Following the to either become sole practitioners or Through the programme the LSSA ac- success of the first programme an ad- pursue different careers within the legal knowledges the challenges women face ditional programme was scheduled for profession. in the legal profession. The focus is on 2015, which will conclude in October. Firms generally do not promote home- helping women face these challenges Through this initiative and other so- offices or working flexi-time. This could and equipping them with the skills to cial studies conducted by the LSSA, it become a problem for women who would deal with it effectively. has become clear that there are some like to have children, since they do not It is important for women to be stumbling blocks for women within the want to take maternity leave for fear of equipped with the right skills to help legal profession. Some of the challenges halting their career growth and missing them become forward-thinking signifi-
DE REBUS – OCTOBER 2015 - 28 - PRACTICE MANAGEMENT cant leaders. Leaders who lead by exam- • understanding the basic importance of effectively manage various areas of their ple, think outside the box and embrace strategising. lives, understand core business princi- change. Leaders who effectively deal Other core principles of leadership are ples and how to achieve success despite with challenges and still become great also dealt with to demonstrate the im- challenges, the LSSA hopes to make a pioneers despite these challenges. portance of building lasting success for significant contribution to women in law. In order to achieve this, the LSSA aims their careers. These include Belbin pro- It is the LSSA’s goal to inspire law to equip women with the business skills filing and sessions on leadership styles firms to be leading firms in this area. and the emotional intelligence needed to and how to deal with others that have Law firms that promote female leader- build successful careers and effectively different leadership styles. ship and the development of female manage each aspect of their lives. Effective communication is another leadership skills. As part of the programme, certain key key element of the programme. It is im- business strategies are dealt with includ- portant to know how to effectively com- • See also 2014 (Oct) DR 23. ing – municate with others, how to handle • the importance of having a clear pur- confrontations and how to effectively pose; work in a team environment. • understanding the importance of a good Although women face certain chal- team; lenges in the legal profession, it should Jeanne-Mari Retief LLB LLM (UP) is a • knowing how to effectively manage the not dissuade them from paving their way project consultant for Legal Educa- team; to leadership positions. By equipping tion and Development in Pretoria. • choosing the right people; and women with the core skills necessary to q
ARE YOU A LEADING FIRM?
Achieve lasting success through significant leadership: LEAD is compiling core views on leadership to inspire and inform aspirant practitioners.
If you are such a firm, give us your position on the following:
• Your firm’s leadership philosophy and core values. • Approach to managing professional relationships. • Identifying and dealing with changing business environments. • Position on professional ethics and social responsibility. • Position on constitutional imperatives. • Advancement of people and skills development. Submissions will be considered for publication in LEAD’s guides together with the firm’s name and location.
E-mail Nic Swart at [email protected] with your submissions
DE REBUS – OCTOBER 2015 - 29 - Breaking the golden egg – Picture source: Gallo Images/iStock source: Picture
By Zamazulu Nkubungu
The pitfalls of written admissions in s 37D of the Pension Funds Act
he protection of pension benefits. Accordingly, South Africa is no providing that ‘no benefit provided for fund assets against credi- exception to the general global trend. in the rules of a registered fund (includ- tors has been a topic of The current position in South Africa ing an annuity purchased … by the said debate in several coun- is that retirement or pension savings are fund from an insurer for a member) ... tries. The ultimate risk protected from creditors. There are vari- shall ... be liable to be attached or sub- faced by pension fund ous protective mechanisms that place jected to any form of execution under a members and pension retirement benefits beyond the reach of judgment or order of a court’. Tfund beneficiaries is the loss of retire- creditors. Chief among these protective The practical effect of the provisions ment income. As a general rule, most measures are the provisions of s 37A(1) of s 37A(1) is that it guards against the countries have legislative means, which of the Pension Funds Act 24 of 1956 (the abuse of judicial process to attach the seek to protect pension fund members’ Act). The Act effects such protection by member’s pension benefits. In essence,
DE REBUS – OCTOBER 2015 - 30 - CANDIDATE ATTORNEY FEATURE
dishonesty, fraud or misconduct by the member, and in respect of which – (aa) the member has in writing admit- ted liability to the employer; or (bb) judgment has obtained against the member in any court, including a magistrate’s court, from any benefit payable in respect of the member or a beneficiary in terms of the rules of the fund, and pay such amount to the employer concerned’. Notwithstanding the excep- tions enumerated in s 37D, it is significant that con- tractual debts such as car loans or computer loans in respect of which the em- ployee still owes a balance to the employer on the date of withdrawal from the fund, fall outside the purview of s 37D(b)(ii). Consequently, such contractual debts may not be deducted from the member’s benefit payable in terms of the rules of the fund, but may be recoverable through other means, for example, by the employer instituting civil proceed- ings against the member in a court of law. Put differently, the employer desir- ous of recovering its debt from an in- scribed and may only debted member can only obtain recourse be exercised in accord- through normal civil litigation. ance with the require- Pertinently, s 37D(1) refers to ‘a ments set out in ss 37D member’ of a registered pension fund. and 37A of the Act. In ‘Member’ is defined in s 1 of the Act as that regard, it may be meaning – worthwhile to refer ‘... in relation to – to the provisions of (a) a fund referred to in paragraph (a) s 37D, which provide or (c) of the definition of “pension fund as follows: organisation”, means any member or ‘37D. Fund may make former member of the association by certain deductions from which such fund has been established; pension benefits. (b) a fund referred to in paragraph (b) (1)A registered fund may – of that definition, means a person who … belongs or belonged to a class of per- (b) deduct any amount due by a mem- sons for whose benefit that fund has ber to his employer on the date of his been established, but does not include retirement or on which he ceases to be a any person who has received all the ben- efits which may be due to that person s 37A protects a member’s member of the fund, in respect of – from the fund and whose membership pension benefits from being (i) (aa) a loan granted by the employer has thereafter been terminated in ac- reduced to satisfy a judgment or an to the member for any purpose referred cordance with the rules of the fund ...’. attachment order against a member of a to in section 19(5)(a); or pension fund, it almost provides a gen- (bb) any amount for which the employ- eral rule protecting pension fund ben- er is liable under a guarantee furnished What are the requirements efits from, inter alia, attachment and in respect of a loan by some other per- in respect of deductions execution. Its object is clearly to protect son to the member for any purpose re- from a member’s pension pensioners against being deprived of the ferred to in section 19(5)(a), source of their pensions. to an amount not exceeding the benefits due to the mem- The protection afforded by s 37A(1) is, amount which in terms of the Income ber’s theft, fraud, dishon- however, not absolute. There are certain Tax Act, 1962, may be taken by a mem- esty or misconduct? well-defined exceptions which are spelt ber or beneficiary as a lump sum ben- out in s 37D of the Act. At the outset, efit as defined in the Second Schedule of In terms of s 37D(b)(ii) of the Act, a fund s 37D(1)(b) entitles an employer the that Act; or may deduct from the member’s ben- right to access pension fund benefits of (ii) compensation (including any legal efits payable in terms of the rules of the the member in the hands of any fund. costs recoverable from the member in a fund any amount in respect of damages However, it is noteworthy that a pension matter contemplated in subparagraph caused to the employer by the member fund’s right to make deductions from a (bb)) in respect of any damage caused as a result of theft, fraud, dishonesty or pension benefit remains highly circum- to the employer by reason of any theft, misconduct, provided –
DE REBUS – OCTOBER 2015 - 31 - CANDIDATE ATTORNEY FEATURE
• the member has admitted liability in writing, or longer the employer’s pension fund. The question then often • judgment by a court of law has been obtained against the arises as to whether the provisions of s 37D(1)(b) apply? Put member. differently, in circumstances described, will the pension ben- The member’s written admission of liability must be clear efits enjoy the protection afforded by s 37A(1) of the Act? and unambiguous and should specifically allow for deduc- tions to be made in respect of a wrongdoing committed by the ABSA Bank LTD v Burmeister and Others member against the employer. This requirement poses a po- [2005] 3 All SA 409 (SCA) tential minefield. In practice, employers ought to be cautious that such admissions are lawful and admissible. Accordingly, Burmeister (first respondent) was formerly employed by ABSA a word of caution to the employers is perhaps merited. An ad- as a manager at its branch in Springs, Gauteng. He resigned on mission must be made freely and voluntarily and without any 15 April 1997. Three months after his resignation, in July 1997 undue pressure on the employee. Furthermore, the employer the pension fund benefits accruing to him were paid by the ap- must ensure that the employee understands the consequences pellants pension fund, Absa Bank Pension Fund, to the Protec- of his admissions. One can conceive of instances where emplo tor Pension Fund, a subsidiary of Old Mutual. The pension ben- yees purport to make admissions, only to recant these later efits were subsequently used to purchase a compulsory linked on the grounds that pressure was brought to bear on them to life annuity with Sanlam Life Assurance Limited. The annuity admit. At any rate, such admissions may often result in crimi- is administered by Sanlam Personal Portfolios (Pty) Ltd, (third nal prosecutions. Needless to say, such admissions must be respondent). In February 1998 Absa Bank (appellant) issued properly recorded, and the employer must preferably enlist summons against Burmeister in the High Court, Johannesburg, the assistance of an independent third party, particularly an claiming damages in the sum of R 1 765 269,05 being the loss attorney. it alleged it had suffered as a result of the latter’s dishonest The judgment by a court of law must relate to either of the and fraudulent conduct while in its employ. Burmeister initial- following – ly defended the action but did not appear in court on the day • a civil judgment sounding in money, namely, a judgment of the trial, 2 August 2000, and as a result a default judgment made consequent to a civil action and specifically awarding was granted against him in the sum of R 721 420,56. The judg- damages to the employer as compensation for the financial ment remained unsatisfied and on 25 March 2002 the sheriff loss suffered; or purported to attach the life annuity to the extent of R 300 000. • a compensatory order made by a criminal court in terms of Burmeister sought an order to the High Court, for setting aside s 300 of the Criminal Procedure Act 51 of 1977, specifically of the attachment. The court granted the order setting aside allowing compensation to the employer for the financial loss the attachment and dismissing the counter application with suffered. costs. The matter was appealed. It goes without saying that in his application for such an or- The crisp issue on appeal was whether s 37D(1)(b) extends to der the employer must allege that some wrongdoing has been the third respondent, which was in control of the benefits. On committed by the employee, which amounts to theft, fraud, appeal Scott JA stated the following: dishonesty or misconduct in terms of s 37D(b)(ii). In practice, ‘It emerges from the aforegoing that “member” in section that is often preceded by a disciplinary process, held in accord- 37D(1)(b) includes a former member … who has not received ance with the principles of law, against the employee. all the benefits that may be due to him or her from the fund. The theft, fraud, dishonesty or misconduct should have been Expressed differently, a member remains such until he or she committed while the employee was still a member of the fund. has received all the benefits and that person’s membership is The issue that often raises some measure of confusion re- terminated according to the rules of the fund ...’. lates to instances where a member has resigned from the em- The SCA held that the exception provided by s 37D(1)(b) ployer and terminates membership from that particular fund affords an employer a right of access to pension fund ben- and transfers their pension fund benefits to a pension pres- efits, which the other creditors do not have. The court fur- ervation fund administered by a different service provider. ther held that ‘the registered pension fund’ referred to in In other words, the benefits are held by a third party and no s 37D(1)(b) of the Act must be construed as a reference to the pension fund of which the ex-employee was a member at the time of his employment, namely, the fund which the employer participated and not some other fund to which the pension fund benefits may subsequently have been transferred. The appeal was dismissed with costs. As was held in Highveld Steel and Vanadium Corporation Ltd v Oosthuizen [2009] 2 All SA 225 (SCA), trustees of a pension fund are not entitled to make any deduction in the absence of a written admission of liability by the member concerned or a judgment obtained by the employer against the member. As stated above, an employer should put in place mechanisms for obtaining proper written admissions from employees. Such processes must accord with the rules of natural justice. There should not be any room for suspicion that an employee was unduly influenced to make any admissions. Charges of undue influence an employee may make later, can be anticipated by proper process that is independently conducted by an inde- pendent attorney. Where such a due process has been estab- lished, it would be difficult for any employee to later disavow their written admissions.
Zamazule Nkubungu LLB (WSU) is a candidate attorney at Hogan Lovells South Africa in Johannesburg. q
DE REBUS – OCTOBER 2015 - 32 - 13063
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13063 NB PRB Print 297X210.indd 1 2015/05/15 2:29 PM Encumbering proceedings for the plaintiffs – recent changes to the summary Gallo Images/iStock source: Picture By Eugene judgment procedure Dlamini
he origins of the summary judgment procedures, however, only be- in GN R318 GG38694/17-4-2015. Rule judgment as a procedural came available in the Orange Free State 14 of the Magistrates’ Court Rules, prior remedy is well entrenched in 1965. Despite summary judgment be- to the amendment, was not substantially within our current legal sys- ing statutorily entrenched in the magis- distinct in formulation from r 32 of the tem, and can be traced back trates’ courts, its introduction in the Su- High Court Rules. Accordingly, most to 1855 when the British perior Courts was rather fragmented and High Court decisions on r 32 find ap- Tparliament enacted Order XIV under the its application lacked uniformity (Van plication in the Magistrates’ Court. How- Judicature Acts, in order to grant plain- Niekerk et al (supra) 2 – 8). Uniformity ever, as will be seen below, the amend- tiffs speedy relief against defendants of application of the summary judgment ments to r 14 in Magistrates’ Courts who did not have a bona fide defence to procedure in the High Courts throughout significantly depart from the summary claims (see Joob Joob Investments (Pty) South Africa was only achieved through judgment procedure as it applies in the Ltd v Stocks Mavundla Zek Joint Venture r 32 when the Uniform Rules of Court High Courts, which, I submit, has the po- 2009 (5) SA 1 (SCA) at para 29; see also (High Court Rules) were promulgated on tential to encumber proceedings for the SJ Van Niekerk, HF Geyer and ARG Mun- 12 January 1965 (P Farlan & DE van Log- plaintiffs/applicants. dell Summary Judgment – A Procedural gerenberg Erasmus: Superior Court Prac- Guide (Durban: LexisNexis 2012) at 1 – 6). tice (Cape Town: Juta 2011) at B1 – 4). Defendant required to The summary judgment procedure was With the above background, it is nec- ‘serve’ a notice to defend first introduced into the South African essary to mirror the recent amendments as opposed to ‘deliver’ statutory law by the Magistrates’ Courts to the summary judgment procedure in Act 32 of 1917, and later, by the Cape r 14 of the Rules Regulating the Con- In terms of the old r 14(1) and (2) of the Supreme Court r 593 (which became r duct of Proceedings of the Magistrates’ Magistrates’ Court Rules, a defendant 22: See Wright v Mcguinness 1956 (3) SA Courts of South Africa (Magistrates’ was required to ‘deliver’ a notice of inten- 184 (C) at 186 – 187), and received in the Court Rules), which came into effect on tion to defend before the plaintiff could Transvaal through r 42 on 17 May 1957 22 May 2015, as introduced by the Rules apply for summary judgment. The same in GN 687 GG 687/17-5-1957. Summary Board for Courts of Law Act 107 of 1985 wording is found in High Court Rule 32.
DE REBUS – OCTOBER 2015 - 34 - FEATURE
The verb ‘deliver’ is defined in both r 2 into sub-paragraphs (a) to (d). While the ministration of justice, in the process, of the Magistrates’ Court Rules and r 1 of content of the sub-rule has been substan- defeating the very purpose of the sum- the High Court as serving a copy on the tially maintained, it is relevant to note mary judgment process. opposite party and filing same with the that a new r 14(2)(b) has been inserted. It registrar or clerk of the court, as the case must be highlighted that r 14(2)(b) does Declaration under oath or may be in the circumstances. ‘Serving’ a not have a corresponding sub-rule in affirmation document essentially entails furnishing r 32 of the High Court Rules, which re- While the old form 8 limited the plain- a copy of the relevant court document to quires a plaintiff to annex a copy of the tiff to making a declaration under oath, a party who must acknowledge receipt served notice to defend to the affidavit the amended form 8 introduces a further thereof. ‘Filing’ occurs where the served in support of the application for summa- declaration under ‘affirmation’. Perhaps document is handed to the clerk of court ry judgment. Having annexed the served the aim in making provision for an af- or the registrar and the said document notice to defend, the plaintiff must go on firmation was to ensure that form 8 is stamped by the clerk of court or the to allege in the affidavit in support of the complies with the regulations promul- registrar as the case may be in the cir- application that a copy of the served no- gated under s 10 of the Justices of the cumstances. tice to defend is attached. The essential Peace and Commissioners of Oaths Act In terms of the amendment to r 14(1) averments to be made in the affidavit in 16 of 1963 (the Act), published under and (2) a defendant is now only required support of the application for summary GN R1258 GG3619/21-7-1972 (see Prac- to ‘serve’ the notice to defend before a judgment are set out in form 8 of An- tice Management ‘Normal practice or un- plaintiff is entitled to apply for summary nexure 1 of the Magistrates’ Court Rules. sound and flawed routines’ in this issue), judgment. In other words, it is no longer The rationale for attaching the notice which govern both the administration of a requirement for a defendant to file the to defend to the affidavit in support of oaths and affirmations. Regulation 1(1) notice of intention to defend with the the application for summary judgment and (2) provides for two types of dec- clerk of court or the registrar, before a in terms of r 14(2)(b) is not well under- larations, viz, by means of an oath, and plaintiff is entitled to proceed to apply stood. Rule 14(1) allows a plaintiff to under affirmation (see Lohrman v Vaal for summary judgment. It may be that apply for summary judgment only after Ontwikkelingsmaatskappy (Edms) Bpk the amendment dispenses with the re- having received a notice to defend. Rule 1979 (3) SA 391 (T)). quirement to file the notice of intention 14(2)(b) has the potential to burden pro- Form 8 of the Magistrates’ Court Rules to defend before the plaintiff can apply ceedings in circumstances where a plain- is an ‘affidavit’, as read with r 14(2)(a), for summary judgment to obviate the tiff inadvertently omits to attach a copy which provides that the plaintiff shall situation where the defendant has not of the notice to defend, and a defendant deliver an affidavit made by the plaintiff filed their notice of intention to defend, with no bona fide defence can now raise or by any person who can ‘swear’ posi- or what is more often the case, has filed a ‘technical point’ of non-compliance tively to the facts verifying the cause of it but the notice has not found its way with rules against the plaintiff. Faced action. In Caldwell v Chelcourt Ltd 1965 into the court file before the applica- with the technical point, a court may (1) SA 304 (N) at 307 it was held that a tion for summary judgment is heard. To have to deal with the vexed question of document was not an affidavit as it was avoid any doubt in the court’s mind, the whether or not failure to attach the no- not a sworn document confirmed on plaintiff/applicant merely attaches the tice constitutes ‘substantial’ non-compli- oath. The court stated that the word ‘af- copy of the served notice to defend to ance with the rules or non-compliance, fidavit’ suggests a ‘sworn document’. the application to avoid the court ques- which may be condoned under the new Bringing form 8 in line with the regu- tioning whether or not the action has r 60(9) of the Magistrates’ Court Rules, lations may have created a further legal been defended. The question is why a despite the notice to defend being part problem. A plaintiff may elect to make plaintiff would launch an application for of the plaintiff’s indexed and paginated the declaration in the affidavit under af- summary judgment, when the matter has bundle. firmation, as opposed to a declaration not been defended, as opposed to filing While a plaintiff who attaches a copy of under oath. In interpreting s 9 of the a request for default judgment. Could it the notice to defend to the affidavit will Act, Colman J in S v Opperman 1969 (3) be that the court will scrutinise a request not have difficulty in proceeding with SA 181 (T) at 184 held that while affir- for default judgment a lot more closely a summary judgment application, the mations must be read eiusdem generis than an application for summary judg- same cannot be said for a plaintiff who with ‘affidavit’, they relate to the state- ment, especially when the latter is unop- inadvertently omits to attach the notice ments of persons who elect not to take posed? The rationale for dispensing with to defend. As r 14(2)(b) has no equiva- oaths. Accordingly, an affirmation falls filing the notice to defend after having lent in the High Court Rules, I submit foul of the provisions of r 14(2)(a), which serving a copy of the notice on the plain- that different magistrates throughout requires a plaintiff to ‘swear’ positively tiff is not clear. South Africa will exercise their discre- to the facts verifying the cause of action. The procedure for bringing the notice tion inconsistently in deciding whether In other words, the wording in form 8 to defend to the attention of the court is or not failure to attach the notice to the is not consistent with the provisions of a departure from the practice in the High affidavit constitutes substantial non- r 14(2)(a). Court Rules. I submit that the amend- compliance with the rules, which may While the attempt may have been to ment to r 14(1) and (2) was unnecessary or may not be condoned under the new bring form 8 in line with the Act and as the plaintiff would have to be served r 60(9). The application of r 14(2)(b) will regulations, the form does not accord with a notice to defend before moving a in all likelihood vary from magistrate’s with r 14(2)(a). I suggest that the use of summary judgment application, as was court to magistrate’s court. Further, de- r 14(2)(b) be reconsidered, and form 8 required under the old r 14(1) and (2). fendants may abuse the sub-rule both be aligned with the r 14(2)(a) in order to The amendment has resulted in the lack as a delaying tactic and a tool to coun- achieve certainty in the summary judg- of uniformity in the application of the teract the expeditious resolution of dis- ment process. summary judgment procedure in the putes where a defendant does not have a magistrate’s court and High Court. bona fide defence and is indeed merely Eugene Dlamini LLB (UNISWA) LLM defending for the sake of delaying the (UKZN) is a candidate attorney at Bou- Attaching of the notice to process. The sub-rule in its current form wer Cardona Inc in Johannesburg. defend to the affidavit affords defendants ample opportunity The old r 14(2) has been re-organised to play for time so as to impede the ad- q
DE REBUS – OCTOBER 2015 - 35 - Dispossessed and unimpressed: Picture source: Gallo Images/iStock source: Picture
By Valentine Mhungu The mandament van spolie remedy
andament van spolie (spolia- cle seeks to investigate, a bank may find that where a person claims that his or tion) is an old common law it convenient to transfer money from her goods are in the possession of an- remedy commonly used by one account to another without follow- other person unlawfully, such an ag- M a person who has been dis- ing the long established legal process. grieved person should not personally possessed of goods without following This article seeks to establish whether and by force take back the goods but use due legal procedure. This article seeks the aggrieved person may use manda- established legal procedure. Should the to answer the question whether the rem- ment van spolie to claim back the funds aggrieved person resort to self help by edy of spoliation is available to a person that he or she has been dispossessed of taking back his or her alleged property who has been dispossessed of money, by his or her own bank. without a court order, a court may order in the form of electronic funds, by his that the person who resorted to self help or her own bank. The situation arises Relevant law return such property. A court may make when a person opens two accounts with this order regardless that the person to Spoliation the same bank and the bank unilaterally whom the property is being returned is a takes money from one account to set- ‘Spoliation’ is a word derived from the thief or a legitimate possessor. tle a debt owed by the other account, possessory remedy better known as A person who has been dispossessed belonging to the same person. It is com- mandament van spolie. The remedy is of property without due legal procedure mon cause that in an instance where that there to guard against instances when a may apply to court to have the property person owes the bank, but has another person takes the law into his or her own returned to him. Before an application account with a different bank, the bank hands and resorts to self help instead of for spoliation is granted, the applicant would have to follow a procedure for using due legal procedure. must satisfy two elements. In the case claiming its money. However, as this arti- It is an established principle of law of Yeko v Qana 1973 (4) SA 735 (A), it
DE REBUS – OCTOBER 2015 - 36 - CANDIDATE ATTORNEY FEATURE was held that an applicant for spoliation transfers are not the same as transfer of tion claim. One of these defences include remedy must satisfy the court that – property. They hold that that when elec- ‘impossibility of return to status quo • he was in possession or had quasi pos- tronic funds are transferred, separate ante’. The spoliation remedy is primar- session of the property; and property rights are adjusted against the ily a possessory one and if repossession • that the respondent deprived him of person making the payment and the per- of the identical property is not possible the possession forcibly or wrongfully son receiving the funds. (either because the thing was destroyed against his consent. In the case of Bon Quelle (Edms) Bpk v or because it had subsequently been al- The above mentioned requirements Munisipaliteit van Otavi 1989 (1) All SA ienated to a third party) the application constitute both a requirement and de- 416 (A), it was held that since an incor- for the remedy may not end in success. fence for and against the remedy of poreal right cannot be possessed in the mandament van spolie. A breakdown of ordinary sense of the word, the posses- Lawfulness this compound follows below. sion is represented by the actual exercise Included in one of the limited defenc- Electronic money of a right. Therefore, refusal to allow a es against the remedy of mandament person to exercise the right will amount van spolie is the defence of lawfulness. Electronic money is monetary value reg- to a dispossession of the right. Where dispossession is effected by vir- istered in a person’s account after the Possession need not have been exclu- tue of common law, a statutory instru- bank receives either a cash deposit or a sive possession. A spoliation claim will ment or contract, a claim for spoliation transfer of credit value on behalf of its lie at the suit of a person who holds remedy will not be successful. Where a client. The electronic monetary value is: jointly with others. The client and his client opens a second account with the Redeemable for cash on demand, trans- bank jointly control the funds in the same bank, some banks conclude a con- ferable and can be used as a means of client’s account. In Solar Mounting Solu- tract with such a client which provides payment. tions (Pty) Ltd vs Engala Africa (Pty) Ltd that, where one account is in arrears, the The relationship between a bank (FB) (unreported case no 3717/2014, 5-9- bank is allowed to transfer credit from and its client 2014) (Wright AJ) it was held that: ‘Even the account with funds to the account in though the applicant may not have had The main business of a bank is to accept arrears. This kind of agreement is also actual possession of the property com- deposits for and on behalf of its clients. similar to the common law operation of plained of, it had a right of access to por- Subject to certain fees being deducted, set-off. tions of the site’. Thus, there are instanc- the same amount received by the bank A client is considered a creditor to the es in which use and enjoyment of a thing for and on behalf of its client is payable bank when there are funds in the client’s has an element of sufficient control to be to the client on demand. account. The bank can also be a credi- said that the dispossessed person was in Even though the legal nature of money tor when it grants a loan to its client. possession, which qualifies him or her to is such, that the bank owns the money Set-off occurs whereby two persons who be protected through the application of after it receives a deposit, the beneficiary are mutually indebted to each other, ex- mandament van spolie. of the deposit still remains a possessor tinguish their debts partially or wholly. In matters concerning the disposses- of the rights referred to above, namely – Where the debts are of the same amount, sion of rights, the requirement of dis- • can demand that the electronic value the two parties’ debts cancel each other. possession is satisfied by showing that be redeemed in cash; But where the amounts of the two debts a previously exercised utility has been • can use the electronic monetary value differ, the bigger debt extinguishes the disturbed. In that order, the emphasis for payment; and smaller one, as proportionally owed. of physical possession ‘involve[s] rather • can make transfers. Set-off can only be invoked when both strained reasoning’. For example, when This constitutes a demonstrable right. claims are liquidated. It needs to be a tenant is locked out, it is regarded as The manifestation of the dispossession noted that where a client owes a bank dispossession because his or her access of the right in such a case will always it does not mean that the bank’s claim rights have been disturbed. The dispos- entail the taking away of an externally against the client is always liquidated. A session of a right will always be mani- demonstrable incidence, such as a use, liquidated debt is one that is capable of fested by the deprivation of an exter- arising from or bound up in the right speedy and easy proof (Treasurer-Gener- nally demonstrable incidence, such as concerned. al v Van Vuren 1905 TS 582 at 589 and the use arising from or being integral to Whatever occurs to the electronic Fatti’s Engineering Co (Pty) Ltd v Vendick the right in question. The case of Tigon monetary value of the bank’s client is Spares (Pty) Ltd 1962 (1) SA 736 (T) at Ltd v Bestyet Investments (Pty) Ltd 2001 controlled by a contract between the 738 (F – G)). Set off can also be excluded (4) 634 (N), clearly demonstrates this bank and the client, as well as a man- by agreement in the contract between point. In casu, the court examined the ju- date from the client. Thus, no funds the bank and its client. ristic nature of the rights of a holder of can be transferred from the client’s ac- shares in a company. This was in order Identifiable count without the client’s instruction. to determine whether the removal of its An electronic fund transfer involves the One of the common defences against name from the share register constituted movement of a credit balance from one spoliation is that the subject of dispute dispossession for the purpose of being bank account to another. This is brought is no longer in existence or unidentifi- able to obtain relief in terms of the man- about by the adjustment of the balances able. Where such subject is mixed with dament van spolie. The court held that of the payer’s and payee’s accounts, af- other things such that it is no longer mandament van spolie was available, ter an instruction by a client to his or her identifiable, it is referred to as commix- in such an instance, because the act of bank to effect payment through an elec- tio. Commixtio, in the case of money, removing the name constituted dispos- tronic medium. The instruction may be refers to instances whereby funds are session for the purposes of spoliation given by the bank’s client electronically mixed in a manner that renders it impos- remedy. via an ATM, a point-of-sale facility or a sible to determine in whom the separate funds vest. A bank may also rely on the personal computer. Defences against spoliation rule that once money is mixed with oth- Possession of the property It does not follow that every claim of er money, without the owner’s consent, Michael Brindle and Raymond Cox (eds) mandament van spolie will always be ownership of it passes by operation of Law of Bank Payments 3ed (UK: Sweet & successful. A respondent has some de- law. However, one should not lose sight Maxwell 2010) hold that electronic funds fences available to him to avert a spolia- of the fact that under the spoliation rem-
DE REBUS – OCTOBER 2015 - 37 - edy, the question of ownership is not in Fredericks, the application of the manda- sion can mean restoration of the subject issue but the means through which dis- ment should not be completely barred. of dispute to its former state and not possession takes place. necessarily the restoration of the exact Determination In Fredericks and Another v Stellen- thing but the original form. In that case, bosch Divisional Council 1977 (3) SA 113 In matters concerning the disposses- impossibility of restoration is not an ab- (C), despite the fact that dwellings had sion of rights, the requirement of dis- solute bar to the remedy. This applies in been destroyed together with the build- possession is satisfied by showing that instances where property is deliberately ing material and such a situation posing a previously exercised utility has been aberrated to defeat this remedy. Thus, a perfect defence of impossibility of res- disturbed. Thus, when a bank decides in instances involving property that can toration, the court ordered restoration. to transfer a client’s funds without hav- be easily replaced, as was illustrated in The court relied on Zinman v Miller 1956 ing followed the demand procedure, the Fredericks, the application of the manda- (3) SA 8 (T) and Jones v Claremont Mu- client’s rights to transfer the previously ment van spolie should not be complete- nicipality 1908 (25) SC 651 to come to held credit, making payments and re- ly barred. the conclusion that the remedy could deeming the credit for cash on demand, In all, the spoliation remedy can be be used in instances where restoration are disturbed. In other words, disposses- used only as a temporary measure pend- required something to be done in addi- sion occurs. The remedy of spoliation ing the determination of the facts in dis- tion to repossession of the subject of should be granted to the client to allow pute. For a client who wishes to recover dispute. The court in Fredericks went to an investigation of the facts of the dis- his money permanently, I submit that the extent of ordering that if the origi- pute. the route of actio Pauliana and the con- nal sheets of corrugated iron could not However, as highlighted above, the re- dictio sine causa (the essence of which is be found, the respondent should use lationship between a bank and a client beyond the scope of this article) should sheets of similar size and quality as the is also governed by the law of contract. be followed as was held in the case of original ones. Thus, the remedy does not If the underlying contract provides that Commissioner of Customs and Excise v only provide for restoration of the thing, the bank may consolidate two separate Bank of Lisbon International Ltd and An- sometimes repossession can require res- accounts, where the client owes the bank other 1994 (1) SA 205 (N). toration of the thing to its former state. in one account, the client may not be It is asserted that the remedy should granted the spoliation remedy on the Conclusion not be absolutely precluded in instanc- basis of the contract as well as by opera- The application of the above arguments es where the property was suspiciously tion of set off (provided set off has not can be used to protect the integrity of the destroyed or alienated, so as to ensure been expressly excluded). banking system. It can also assist other that repossession could not take place; Also, the defence that once the money regulatory authorities in providing con- and ultimately to specifically exclude the has been transferred and mixed with sumers with adequate protection from possibility of instituting the remedy in the bank’s monies cannot be identified, unfair practices, fraud and financial loss. those instances. Allowing such can have involves a rather strained reasoning dire consequences for banks’ clients be- considering what was held in the Fred- cause it can open avenues to unfair prac- ericks case. In casu, it was held that the Valentine Mhungu LLB (WSU) LLM tices. Accordingly, I submit that if the destruction of the spoliated property (UKZN) is a candidate attorney at property is fungible and can in principle does not take away the availability of the Mbatha and Associates in Durban. easily be replaced as was illustrated in spoliation remedy. Sometimes reposses- q
Keynote Speaker: Deputy Chief Justice Dikgang Moseneke Date: Friday, 09 October 2015 Time: 18h30PM for 19h00 Dress Code: Formal Venue: CONSTITUTION HILL Joubert St Johannesburg 2001 (Latitude: -26.189756 | Longitude: 28.041418)
To RSVP contact Michelle Duvenhage via: Email: [email protected] Phone Number: 0716824988 or 011 450 2284
DE REBUS – OCTOBER 2015 - 38 -
Picture source: Gallo Images/iStock source: Picture
By Francois Robert van Zyl
he Road Accident Fund lation, Road Accident Fund Legislative 34(12) If the court has given judgment (RAF) is a public entity es- Schemes, Uniform Rules of Court and on the question of costs in ignorance of tablished in terms of the Practice Directives in order to enhance the offer or tender and it is brought to Road Accident Fund Act 56 and facilitate the speedy and justifiable the notice of the registrar, in writing, of 1996 (the Act) as amend- settlement of claims. within five days after the date of judg- ed, to compensate victims One of these measures, in an endeav- ment, the question of costs shall be con- Tof road accidents where serious injury or our to curb litigation costs, is contained sidered afresh in the light of the offer or death arose as a consequence of wrong in r 34 of the Uniform Rules of Court. tender: Provided that nothing in this sub- doing or fault. Sub-rules 1,5 and 12 to this rule provides rule contained shall affect the court’s Central to the payment of a claim un- as follows: discretion as to an award of costs.’ der the current legislative framework is ‘34(1) In any action in which a sum of In the recently reported appeal matter the common law principle of delict where money is claimed, either alone or with of Road Accident Fund v Mashala (GP) fault must be proven before a claimant is any other relief, the defendant may at (unreported case no A474/2012, 25-7- compensated. As a consequence, the his- any time unconditionally or without 2014) (Kollapen J) handed down by the toric trend has been to determine fault prejudice make a written offer to settle Gauteng Division, Pretoria, the court was and the extent of compensation in the the plaintiff’s claim …’ called on to consider the proper inter- courts, through a highly litigious pro- … pretation and purpose behind r 34 of the cess, which has seen claimants appoint- 34(5) ‘Notice of any offer or tender Uniform Rules of Court. In this case, the ing third party attorneys to claim against in terms of this rule shall be given to all respondent brought an action for dam- the RAF. The RAF in turn appoint legal parties to the action and shall state – ages against the appellant in terms of the representatives through a panel of attor- (a) whether the same is unconditional provisions of the Act. The appellant op- neys to defend the matters over what is a or without prejudice as an offer of set- posed the action and both the merits and considerably lengthy period of time. tlement; quantum of the respondent’s claim were According to the Road Accident Fund’s (b) whether it is accompanied by an of- in dispute and when the trial proceeded, Integrated Annual Report, R 22,2 billion fer to pay all or only part of the costs of the court made an order separating the has been paid out to victims of road ac- the party to whom the offer or tender is merits of the matter from the quantum. cidents during the 2013/2014 general made, and further that it shall be sub- The trial, therefore, only proceeded on financial review. This amount excludes, ject to such conditions as may be stated the issue of liability. On 8 March 2012 the but is not limited to, the legal costs relat- therein; court delivered judgment on the ques- ing to successful claimants via the court (c) whether the offer or tender is made tion of liability and made an order that process, the panel attorney’s fees in by way of settlement of both claim and the appellant be liable for 50% of all the defending these matters, as well as the costs or of the claim only; damages that the respondent was able to costs relating to witnesses and various (d) whether the defendant disclaims prove, and in addition ordered the appel- expert evidence. One can therefore ap- liability for the payment of costs or for lant to pay the costs of the hearing. The preciate the regular increase in the fuel part thereof, in which case the reasons appellant thereafter brought an applica- levy, which places an enormous strain on for such disclaimer shall be given, and tion in terms of r 34(12) for the court to the public purse. It comes as no surprise the action may then be set down on the reconsider the question of costs afresh that various measures have been put in question of costs alone. and it premised such an application on place, such as amendments to the legis- ... the following grounds:
DE REBUS – OCTOBER 2015 - 40 - FEATURE
• That on 11 January 2012, the appel- a particular defendant, but for the public not an offer sounding in money. Such lant’s attorneys delivered a Notice of Of- good, generally.’ a result would not only undermine the fer of Settlement in terms of r 34(1) and The court went further and cautioned rational for the rule but would serve to r 34(5) in which the appellant offered to that courts should take account of the encourage unnecessary litigation to the pay 50% of all damages proven by the re- purpose behind the rule and not give costs of litigants and the fiscus. spondent, as well as the costs of the ac- orders that undermine it. Accordingly The court furthermore referred to the tion insofar as it pertains to negligence in the context of litigation, the rule pro- author Erasmus in the Superior Court up to and including 11 January 2012. vides an incentive to the reasonable and Practice (P Farlan & DE van Loggerenberg • That considering on 8 March 2012 the prudent litigant who makes an informed Erasmus: Superior Court Practice (Cape court made an order, in respect of mer- and concerted effort to bring litigation Town: Juta 2011) at B1 – 5), who makes its, identical to the terms of the tender, to an end, as well as a disincentive to the the following observation: the court should have reconsidered the intransigent and unreasonable litigant. ‘The object of the rules is to secure in- order of costs it had made on 8 March The incentive lies in the risk attendant expensive and expeditious completion of 2012 and it should have, in light of the on the court exercising its discretion litigation before the courts; they are not offer of settlement, ordered the respond- with regard to costs. A litigant faced with an end in themselves. Consequently the ent to pay the costs of the hearing. the choice of disputing liability in toto rules should be interpreted and applied • In its judgment, on the application for making an offer of settlement may in a spirit which will facilitate the work for reconsideration, the court conclud- well, regard being had to the purpose of the courts and enable litigants to re- ed that r 34(1) of the Uniform Rules of of the rule, be said to bring to an end at solve their disputes in as speedy and in- Court deals with monetary claims and least that part of the litigation by making expensive a manner as possible. Thus it the only offer capable of settling a mon- an offer of settlement. Such an approach has been held that the rules exist for the etary claim was an offer for the payment would be consistent with the purpose court, and not the court for the rules.’ of a sum of money. Accordingly an offer of the rule and may also be considered The court found on that basis, and not sounding in money was not possible as advancing the public good. The court even while accepting that the power of in terms of the rule and the appellant’s held that it would of course follow in the court of appeal to interfere with the offer of 11 January 2012 was not an of- such instances where the question of exercise of a true discretion is limited, fer sounding in money and, as such, it quantum remains unresolved, that an of- the discretion was exercised on an incor- fell outside of what r 34(1) contemplat- fer of settlement on liability could never rect principle, namely that the offer of ed. On that basis, the court proceeded to be in precise monetary terms but could settlement fell outside of r 34(1) and, dismiss the application for reconsidera- certainly be structured in terms capable therefore, the court in casu was entitled tion. of ascertainment. Arising out of this is to interfere. The offer of settlement was, • The central issue for determination in the question of whether failure to make therefore, a competent one in both in this appeal is whether the court a quo a specific monetary offer has the effect terms of r 34(1) and the common law and was correct in concluding that the offer of taking the offer outside of the ambit if it was accepted it would have brought of settlement made in terms of r 34(1) of r 34(1) as the court a quo concluded. the litigation on the question of liability and r 34(5) fell outside the ambit of the The court did not believe this to be the to an end on the same terms the court rule. A related issue was whether, not- case. a quo found on 8 March 2012. Such an withstanding that the offer was made in If one has regard to the text of r 34(1), outcome would have justified the court, terms of r 34(1), the common law is of it does not encapsulate a requirement on reconsideration of the costs order it relevance and is of possible application that the offer be one precisely sounding made, to avoid costs in favour of the ap- in determining the matter. in money. If regard is had to the ration- pellant and as a result the appeal suc- The court referred to the Supreme ale of the rule, to enable a party to avoid ceeded and the respondent was ordered Court of Appeal decision in Naylor and future litigation, interpreting r 34(1) as to pay the appellant’s costs in the first Another v Jansen 2007 (1) SA 16 (SCA) requiring a precise monetary offer to be instance, as well as the costs of the ap- where this court remarked that: ‘The made, will have the effect of undermin- peal. purpose behind the Rule is clear. It is ing the rule. The conclusions of the court designed to enable a defendant to avoid a quo would mean that where separation Francois Robert van Zyl LLB (Unisa) further litigation, and failing that to of liability and quantum has taken place, is an attorney at Dyason Inc in Pre- avoid liability for the costs of such litiga- no offer of settlement would be possible toria. tion. The rule is there not only to benefit in terms of r 34(1) simply because it is q
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DE REBUS – OCTOBER 2015 - 41 -
LAW REPORTS THE LAW REPORTS
August 2015 (4) South African Law Reports (pp 329 – 643); [2015] 3 All South African Law Reports July no 1 (pp 1 – 129) and no 2 (pp 131 – 254); [2015] 3 August no 1 (pp 255 – 386) and no 2 (pp 387 – 521); 2015 (8) Butterworths Constitutional Law Reports – August (pp 887 – 1001)
David Matlala BProc (University of This column discusses judgments as and when they are published in the South African Law Re- the North) LLB (Wits) LLM (UCT) ports, the All South African Law Reports and the South African Criminal Law Reports. Readers LLM (Harvard) LLD (Fort Hare) should note that some reported judgments may have been overruled or overturned on appeal HDip Tax Law (Wits) is an adjunct or have an appeal pending against them: Readers should not rely on a judgment discussed here professor of law at the University of without checking on that possibility – Editor. Fort Hare.
Abbreviations: SA 329 (SCA), [2015] 3 All SA that as judgment was granted superannuated, unless the ex- 1 (SCA) where the appellant, on 18 December 2007 it su- ecution sale took place within CC: Constitutional Court Absa Bank, obtained default perannuated at midnight on three years of that judgment. GJ: Gauteng Local Division, judgment in the magistrates’ 17 December 2010 with the As a result, the date on which Johannesburg court against the respondent, result that a reissue of the the warrant of execution GP: Gauteng Division, Preto- Steyn, after he defaulted on warrant of execution the fol- was issued, was of no conse- ria loan repayment. On the same lowing day on 18 December quence. Therefore, the date KZD: KwaZulu-Natal Local Di- date, 18 December 2007, the 2010 was not competent. of reissue of a warrant of vision, Durban appellant also obtained a That had the result that the execution would not avoid NCK: Northern Cape Division, warrant of execution against reissued warrant of execu- execution once the three-year Kimberley the mortgaged house of the tion was invalid and could period from the date of judg- SCA: Supreme Court of Ap- respondent, which had been not bring about a valid sale in ment elapsed. Extension of peal declared executable. Noth- execution. A further appeal to the superannuation period WCC: Western Cape Division, ing happened concerning the the SCA was upheld, the court could only occur by order of Cape Town warrant of execution, which standing over the issue of court, something which was was reissued on 18 Decem- costs. The matter was remit- not obtained by the appellant Civil procedure ber 2010 and served on the ted to the High Court for veri- in the instant case. It followed Superannuation of judgment respondent in February 2011. fication whether in the mean- that the question whether or if warrant of execution is not Thereafter, the property was time the respondent had not not the reissue occurred on effected within three years: sold in execution after which made payment, as it appeared 18 December 2010 or on an Section 63 of the Magistrates’ the new owner proceeded to that he did so. If that was the earlier date was of no con- Courts Act 32 of 1944 (the evict the respondent. The case it would affect superan- sequence. What was relevant Act) provides among others respondent challenged the nuation of the judgment as was the date of the sale in ex- that: ‘Execution against prop- validity of the execution and the three-year period would ecution, which in the instant erty may not be issued upon sale of the property to the start running from the period case was 6 December 2011. a judgment after three years new owner on the basis that of the last payment and not That was clearly more than from the day on which it the warrant of execution had the date of the court order. three years after the date of was pronounced or on which been issued more than three Brand JA (Cachalia, Shong- judgment on 18 December the last payment in respect years after the granting of de- we, Wallis and Petse JJA 2007. thereof was made, except fault judgment. concurring) held that prop- upon an order of the court On appeal to the High erly construed s 63 of the Cohabitation …’. The issue arose in Absa Court the WCC held, per Da- Act provided that a judgment No reciprocal duty of sup- Bank Ltd v Snyman 2015 (4) vis J (Blignaut J concurring), sounding in money became port between partners in a
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DE REBUS – OCTOBER 2015 - 43 - cohabitation relationship: In nership agreement. The three ers, enjoyed. Moreover, they application. It should, how- Steyn v Hasse and Another essentials of such a partner- had in the meantime also ap- ever, be noted that the latter 2015 (4) SA 405 (WCC) the ship were – plied for a business rescue deals with s 133(1)(b), and not first respondent, Hasse, was • that each party contributed of the companies in question s 131(6), of the Act. a married German national something to the partnership even though at the launch of who spent most of his time in or bound himself or herself to the application it was over Contracts Germany. However, he owned do so; one and half years since the Mortgage bond may secure a house in Somerset West in • that the partnership would final winding-up order had indebtedness relating to the Western Cape, in which be carried on for their joint been granted. unjust enrichment claim: In he lived for four months in benefit; and Mamosebo AJ dismissed Panamo Properties 103 (Pty) a year. He had a romantic • the object should be to the urgent interdict appli- Ltd v Land and Agricultural relationship with the appel- make profit. cation with costs on an at- Development Bank of South lant, Ms Steyn and invited In the instant case, it was torney and client scale. The Africa [2015] 3 All SA 42 her to live in the house free not in dispute that the rela- court held that there was no (SCA) the appellant, Panamo, of charge, also providing her tionship did not comply with urgency in the application as entered into a loan agreement with funds to run the house. the essential requirements the applicants had plenty of with the respondent, Land Furthermore, he also gave of a universal partnership. time in which they could have and Agricultural Develop- her gifts. When the romantic There was, therefore, no le- launched it. Furthermore, the ment (the bank), in terms of relationship ended the first gal basis on which to find applicants had no locus standi which money was advanced respondent requested the ap- that there existed reciprocal as the farms belonged to the to the appellant to acquire pellant to vacate the house rights and duties of support companies in winding-up and agricultural land for devel- but she did not. It was her between the appellant and they were only shareholders. opment into an urban town- contention that the first re- the first respondent. Moreover, an undertaking ship. To secure repayment of spondent promised her that had been given to the effect the loan a covering mortgage she would live in the house Companies that the proceeds of the sale bond was registered over the for a period of ten years end- Business rescue applica- would be deposited into a two properties in question. ing in 2017 and that if the tion that does not suspend trust account for protection. However, as it turned out the romantic relationship were to liquidation of a company: On the issue of the relation- loan agreement was invalid end he would buy her a town- Section 131(6) of the Compa- ship between winding-up and for contravention of s 3 of house similar to the one she nies Act 71 of 2008 (the Act) business rescue applications, the Land and Agricultural was renting before the rela- provides among others that if the court held that liquida- Development Bank Act 15 of tionship started. The magis- liquidation proceedings have tors had a duty and responsi- 2002 (the Act), which makes trate held that there was no already been commenced by, bility to look after the assets provision making loans by reciprocal duty of support or against the company, at and affairs of the companies the bank for among others between parties in a cohabita- the time an application for in liquidation. The fact that in the promotion, facilitation tion relationship and as a re- business rescue is made, the the instant case the liquida- and support of commercial sult ordered her to vacate. An application will suspend the tors confirmed the existence agriculture and food security appeal against that decision liquidation proceedings un- of a lien and undertook to and not township develop- was dismissed with no order til the court has adjudicated protect it underscored their ment. Furthermore, ss 66 and as to costs, given that the ap- upon the application or the responsibilities and bona 68 of the Public Finance Man- pellant was an elderly person business rescue proceedings fides. The legislature did not agement Act 1 of 1999 (the who was not in good health end. intend to create a situation PFMA) provide that where a and was unemployed. In Knipe and Another v where provisional liquidators public institution, such as the Goliath J (Schippers J con- Noordman NO and Others would be disempowered to bank, enters into a transac- curring) held that cohabita- 2015 (4) SA 338 (NCK) two carry out their responsibili- tion that is not authorised by tion generally referred to peo- companies, K and S, were ties. Since in this case a busi- legislation governing the in- ple who, regardless of their placed under provisional liq- ness rescue practitioner had stitution, it will not be bound gender, lived together with- uidation, which was eventu- not been appointed and the by the transaction. out being validly married to ally made final. In the course circumstances were different Two issues fell to be de- each other. Cohabitants gen- of liquidation of the affairs in that final liquidation was cided, namely, the validity of erally did not have the same of the companies their provi- granted on the basis that it the loan agreement and also, rights as partners in marriage sional liquidators, Noordman was just and equitable to do if the agreement was invalid or civil union. Although no and others, entered into an so, and not because the com- the mortgage bond could still reciprocal duty of support agreement for the captur- panies were in dire financial be enforced on the basis of arose by operation of law in ing, removal and sale of cat- distress, the provisional liq- unjust enrichment. The GJ the case of unmarried per- tle belonging to the estate of uidators could not be ham- held per Claassen J that such sons, there was nothing pre- the deceased Knipe senior strung by the business rescue was the position. An appeal cluding such duty from being (the father) but, which were application. against that decision was dis- regulated by agreement. Nev- grazing on the farms owned NB: The above case should missed with costs by the SCA. ertheless, the courts provided by the companies. The ap- be contrasted with Elias In the majority judgment some measure of recognition plicants, the Knipe brothers, Mechanicos Building & Civil Lewis J (Pillay, Willis JJA, Sch- to cohabitation and had on launched an urgent applica- Engineering Contractors (Pty) oeman and Gorven AJJA con- many occasions found that tion for an interdict prohib- Ltd v Stedone Developments curring) held that the acquisi- an express or implied univer- iting the capturing, removal (Pty) Ltd and Others 2015 (4) tion of agricultural land for sal partnership existed be- and sale of the cattle. It was SA 485 (KZD) where it was the purpose of transforming tween cohabitants. A univer- their contention that removal held that leave to institute it into an urban township was sal partnership existed when and sale of the cattle would legal proceedings should not only not consonant with parties acted like partners in destroy a lien, which the be obtained before institut- the objects of the Act, but was all material respects without companies in liquidation, of ing the proceedings and not also completely contrary to expressly entering into a part- which they were sharehold- sought as part of the main that which the bank was sup-
DE REBUS – OCTOBER 2015 - 44 - LAW REPORTS posed to achieve. According- continue with her schooling. registered, failing which it er stage where Kruger J held ly, the loan agreement was in Moreover, the appellant was shall be of no force or effect that the marriage was, as per contravention of the Act and a total stranger to her. The as against any person who is the intention of the parties, invalid with the result that it complainant’s uncle, togeth- not a party thereto. The ap- out of community of prop- could not be enforced. The is- er with another man, liter- plication of the section fell erty, with no community of sue of possible validity and ally grabbed her by her hands to be decided in S v S [2015] profit and loss but subject enforcement of the second and took her by force to the 3 All SA 85 (KZD) where be- to the accrual system. It was agreement, namely the mort- appellant’s home where she fore entering into marriage clear from the provisions of gage bond, was dealt with by was forced to have sex with the parties gave their attor- s 86 of the Act that an ante- Gorven AJA in a concurring the appellant. After escaping ney an instruction and power nuptial contract, which had judgment, where it was held she was tracked down and of attorney, also signing a not been registered was of no that even though the loan was returned to him. Eventually draft antenuptial contract, to force or effect as against any void that did not mean that the two left the village in the execute an antenuptial con- person who was not a party there was no other obligation Eastern Cape for Cape Town tract and have it registered thereto. The antenuptial con- secured by the bond. Assum- where she was held in captiv- in terms of the Act. It was tract would, however, be valid ing, without deciding, that the ity, with the door and gates the intention of the parties to and binding as between the respondent had a valid claim locked, so that she could enter into a marriage out of parties. That was because the for unjust enrichment, such not escape. Repeated raping community of property with unregistered antenuptial con- would give rise to indebted- took place and she was also no community of profit and tract reflected the common ness. There was no reason assaulted for not being co- loss but subject to the accru- intention of the parties at for a mortgage bond not to operative. At long last she es- al system. When the parties the time the contract was en- secure a debt arising from caped and reported the prob- divorced more than twenty tered into. That had the effect an enrichment claim. The lem to the police. years later, they discovered that an informal antenuptial mortgage bond, in the instant On appeal to the High that the antenuptial contract contract existed between the case, was cast in the broadest Court the convictions on had not been registered. As parties. The date of determi- possible terms enabling the counts of assault with intent a result the plaintiff, Mrs S, respondent to recover pay- to cause grievous bodily harm contended that the marriage nation of the accrual system ment from the appellant for a and common assault were was in community of prop- was that of litis contestatio claim arising from ‘whatsoev- set aside as they were found erty, while the defendant hus- and not the granting of a de- er reason’. The wording of the to be part of the offence of band took the view that as per cree of divorce. The practical mortgage bond conclusively rape. However, an appeal the intention of the parties effect of litis contestatio was showed that a basis existed against convictions and sen- the marriage was out of com- to expedite the trial and do for invoking the security to tence on human trafficking munity of property. much to limit the temptation secure indebtedness, which and rape was dismissed. In a The High Court separated to squander assets that some did not have to arise from an unanimous judgment Cloete, the issues and granted a de- spouses seemed to find irre- agreement or even the terms Saldanha and Yekiso JJ held gree of divorce, making an- sistible and also discourage of the mortgage bond. There- that it could not be counte- cillary orders relating among the situation were a spouse fore, the security afforded nanced that practices associ- others to custody of the mi- deliberately delayed the pro- by the bond covered a law- ated with the aberrant form nor child. The question of ceedings in order to increase ful claim by the respondent of the traditional practice of the applicable matrimonial his or her claim when the di- which fell outside the terms ukuthwala (forced marriage – regime was decided at a lat- vorce was eventually granted. of any agreement or the bond essentially meaning grabbing and could clearly cover a debt a mate) could secure protec- arising from an enrichment tion under the law, as the claim. appellant sought to do. The court could not, therefore, Criminal law even on the rather precari- Child trafficking, rape and ous ground of assertion by abuse or exploitation for the appellant of a belief in the sexual purposes: In Jezile v S aberrant form of ukuthwala (National House of Traditional as constituting ‘traditional’ You May... Leaders and Others as Amici customs of his community, - Perceive that adopting Document Management technology will be costly? 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That was after a group turally relative?’ 2015 (Aug) Integrate and optimize both your business processes and systems to work across every organizational level, both centrally and locally, to enable rapid service delivery and cost savings of males representing his DR 28. in real time family agreed with another group of males representing Divorce the complainant’s family, to Validity of unregistered an- a marriage between the ap- tenuptial contract: Section pellant and the complainant, 86 of the Deeds Registries You can: ENSURE COMPLIANCE | You can: ENSURE SECURITY | You can: ENSURE PRODUCTIVITY a girl aged 14. The complain- Act 47 of 1937 (the Act) pro- ant refused to marry the vides among others that an Contact us today +27 (0) 11 656 5000 for a free 1 hour on-site consultation to evaluate your Document Management Requirements appellant as she wanted to antenuptial contract shall be ** Terms and Conditions apply
DE REBUS – OCTOBER 2015 - 45 - Housing yet taken transfer. The order rest and remove any person Act infringed a member’s did not have retrospective ap- creating or taking part in a privilege of free speech and Protection of vulnerable pur- plication to matters already disturbance during parlia- his or her privilege not to be chasers: Very briefly ss 21 finalised by then. mentary, house or committee arrested as protected under and 22 of the Alienation of Reading the majority judg- sittings. In Democratic Alli- ss 58(1)(a) and 71(1)(b). The Land Act 68 of 1981 (the Act) ment Mogoeng CJ (Cameron ance v Speaker of the National provision in s 11 was not en- provides among others that and Froneman JJ concurring Assembly and Others 2015 (4) visaged by ss 58(2) and 71(1) on insolvency of the seller for totally different reasons SA 351 (WCC), [2015] 3 All of the Constitution and, there- the purchaser of a residential in a separate judgment) held SA 72 (WCC) the applicant fore, did not pass the consti- property who buys in terms that it was difficult to con- Democratic Alliance, a politi- tutional muster as it permit- of a contract that provides ceive of an instance where the cal party and official opposi- ted a member to be arrested for payment of the purchase refusal to transfer a home to tion in the NA, sought a court for what he or she might say price in two or more instal- a vulnerable purchaser, who order declaring the section in- on the floor of the NA. That ments over a period of one had paid the purchase price consistent with the Constitu- violated a member’s consti- year or more may, after mak- in full, coupled with inevita- tion, and accordingly invalid, tutional privilege of freedom ing arrangements for pay- ble homelessness, would not on the ground that s 58(1)(a) of speech and freedom from ment of the balance, take outweigh the advantage to of the Constitution afforded arrest as guaranteed under transfer of the property. How- creditors of the seller’s in- cabinet members, deputy ss 58(1) and 71(1) of the Con- ever, the sections do not have solvent estate. There was no ministers and members of stitution. The provision of similar provisions for the pro- rational basis for protecting the NA a right of speech in s 11 was overboard and as a tection of a purchaser who a vulnerable instalment pur- the NA and its committees, result constitutionally flawed. has paid the price in full but chaser of a residential prop- and that s 58(1)(b) protected NB: It should be noted that has not yet taken transfer at erty who paid over a period such members against, inter s 11 proscribed causing ‘dis- the time of the seller’s insol- of one year or longer, while alia arrest, imprisonment or a turbance’ and not ‘making vency. Such a purchaser sim- leaving out an equally vul- damages claim ‘for anything speech’, the latter being duly ply loses out as the property nerable purchaser who bor- they said in, produced before protected. It would appear, falls into the insolvent estate. rowed money to pay the full or submitted to the Assem- therefore, that the case was In Sarrahwitz v Maritz NO purchase price at once or one bly or any of its committees’. decided on the facts that did and Another 2015 (4) SA 491 who did so in one instalment Delegates to the NCOP, par- not exist. (CC); 2015 (8) BCLR 925 (CC) or several instalments within ticipating local government the applicant, Ms Sarrahwitz one year. So long as there ex- representative and members Limitation on broadcasting (S), had paid the full purchase isted a real risk within the leg- of the national executive were of unparliamentary conduct price for a residential proper- islative scheme for vulnerable afforded the same privileges and grave disorder: Acting in ty which she bought from Mr purchasers to be rendered and powers by s 71 of the terms of ss 57(1) and 70(1) of P (P), who promised to trans- homeless, the scheme was Constitution. It was argued the Constitution, Parliament fer it to her and instructed his under-inclusive, violated the that the section violated the adopted rules and a policy lawyers to do so. However, right of access to adequate constitutional privileges by relating to the broadcasting there was an inordinate delay housing and limited purchas- permitting a member to be of parliamentary proceedings of some four years in effect- ers’ rights unjustifiably. The arrested for what he or she which provide, among others, ing the transfer and when the impugned provisions were might say on the floor of the that during incidents of grave estate of P was declared insol- unconstitutional to the ex- NA. The issue arose after disorder or unparliamentary vent the property, which was tent that they excluded the members of another political conduct the parliamentary still registered in his name, transfer of a house from an party, the Economic Freedom camera should focus on the vested in the trustee of his insolvent estate to a vulner- Fighters (EFF), had been eject- occupant of the chair, mean- estate, the respondent Maritz able purchaser who had paid ed from a joint sitting of the ing the Speaker of Parliament who refused to transfer it to for it within one year even in NA and NCOP for repeatedly in the case of the National the applicant. The High Court circumstances where that ex- interrupting the President’s Assembly or the Chairperson dismissed the applicant’s clusion was unjustifiable and state of the nation address in the case of the National claim for transfer of the prop- could result in homelessness speech. Council of Provinces. This erty into her name. Leave to of the purchaser. The High Court granted means that the grave disorder appeal to the full Bench of with costs an order declaring or unparliamentary conduct the High Court or alterna- Parliament the section unconstitutional, incident would not be given tively the SCA having been suspending the operation coverage, except that in the denied, the applicant sought Freedom from arrest for thereof for 12 months during case of unparliamentary con- leave of the CC to appeal to anything said in the Na- which Parliament was afford- duct occasional wide-range it, raising the question of con- tional Assembly, Council ed the opportunity to remedy shots of the chamber are ac- stitutionality of the common of Provinces or any of their the defect. The order was re- ceptable. The constitutional- law and the Act for the first committees: Section 11 of ferred to the CC for confir- ity of the rules and the policy time on appeal. Leave to ap- the Powers, Privileges and Im- mation. Le Grange J (Cloete was challenged in Primedia peal was granted and the ap- munities of Parliament and and Boqwana JJ concurring) Broadcasting Ltd and Others peal upheld, with no order as Provincial Legislatures Act 4 held that inasmuch as Parlia- v Speaker of the National As- to costs. The court followed of 2000 (the Act) allows the ment was entitled to conduct sembly and Others 2015 (4) the severance and reading- Speaker of the National As- its own affairs, the privilege SA 525 (WCC); [2015] 3 All in approach with the result sembly (NA) or Chairperson of freedom of speech was SA 340 (WCC) were the ap- that the provisions of the Act of the National Council of vital to allow Parliament to plicants, Primedia Broadcast- were extended to apply to Provinces (NCOP) or a person perform its function of per- ing and others, also sought purchasers who had paid the designated by them to order mitting unrestrained debate an order declaring the use of purchase price for residential ‘a staff member or a member about matters of public im- the jamming device unconsti- property in full but had not of the security forces’ to ar- portance. Section 11 of the tutional and invalid. All this
DE REBUS – OCTOBER 2015 - 46 - LAW REPORTS took place after an incident tified and was therefore not in a distinction between a real wrongful interference with during the state of the na- unlawful. right (jus in re) and a personal another’s right as a trader. In tion address by the President right (jus in personam). Real order to succeed with an ap- during which members of an Rei vindicatio rights were primarily con- plication for final interdict opposition political party, the Claim for rei vindicatio not cerned with the relationship the second applicant had to Economic Freedom Fighters, constituting debt or pre- between a person and a thing demonstrate that – were removed from Parlia- scribing in three years: In while personal rights were • there was a wrongful act of mentary precinct by the secu- Absa Bank v Keet 2015 (4) concerned with the relation- competition or one which was rity agency and the service of SA 474 (SCA) the respondent, ship between two (or more pending; electronic devices interrupted Keet, entered into an instal- persons). The person who • which was infringing or for a short period. In other ment sale agreement with was entitled to a real right threatening to infringe its words, the applicants wanted Eastvaal Motors for the sale over a thing could, by way business goodwill; and full live television and other of a vehicle, namely a tractor. of a vindicatory action, claim • no other suitable remedy electronic coverage of the dis- Eastvaal Motors having ceded that thing from any person was available. ruption. The application was its right, title and interest in who interfered with his right. In unlawful competition dismissed, each party being the agreement to the appel- Such a right was one of own- cases care had to be taken to ordered to pay own costs. lant, Absa Bank, the latter ership and not personal. recognise the erstwhile em- Dlodlo J (Henney J concur- instituted proceedings for ployee’s right to utilise knowl- ring and Savage J dissent- confirmation that the agree- Unlawful edge and skills acquired when ing) held that the rules and ment had been cancelled as moving to a new employer. In policy in issue survived the a result of breach of contract competition the instant case, the conduct application of the proper test by the respondent who de- Protection against unlawful of each of the respondents for reasonableness. Sections faulted in payment of agreed competition: In Mullane and demonstrated a disregard for 59(1) and 72(1) of the Consti- instalments and also sought Another v Smith and Others the second applicant’s rights tution authorised Parliament recovery of the vehicle. The [2015] 3 All SA 230 (GJ) the and a clear attempt to take to take reasonable measures respondent raised a special first applicant, Mullane, was unfair and wrongful advan- to regulate public access, in- plea of prescription, alleging a minority shareholder and tage of inside knowledge that cluding access of the media, that as a period of three years was otherwise protectable director of the second ap- to it. In other words the Con- had expired since the date on against filching or economic plicant, Coleman Tunnelling. stitution did not contemplate which final payment of instal- espionage. There was no The first respondent, Smith, unrestricted access (free- ments ought to have been reason why such protection was also a minority share- for-all). It rather expressly made, the claim for payment could not be extended to is- holder and director of the reserved for Parliament the of arrear instalments and sues of unfair competition. second applicant, as well as power to limit access by the recovery of the vehicle had its employee. When the pos- public, including the media, prescribed. The GP, Pretoria Other cases sibility of acquisition of the to its proceedings, provided per Fabricius J having upheld Apart from the cases and ma- second applicant by the third that the limiting measures the special plea, an appeal terial dealt with or referred respondent, Bothar Boring, were reasonable. There was against that decision was up- to above the material under arose the first respondent no obligation on Parliament held by the SCA. The court review also contained cases was provided with the sec- to broadcast conduct that made no order as to costs dealing with the act of in- ond applicant’s confidential clearly obstructed or disrupt- as the matter had essentially solvency, bias by presiding information to negotiate the ed its proceedings and unrea- become moot since it was set- officer, breach of contract, deal that eventually failed. sonably impaired its ability tled. That being the case the business rescue proceedings, After certain allegations to conduct its business in an respondent withdrew his op- classification of health care were made against the first orderly and regular manner position to the appeal. products, consumer credit respondent he resigned as in a democratic society, sim- Zondi JA (Maya, Bosielo, agreements, conveyancing, a director of the second ap- ply because such conduct was Wallis JJA and Meyer AJA detention of illegal foreign- plicant and joined the third not legitimate parliamentary concurring) held that a debt ers, dispute of fact, eviction respondent. However, he did business. When that was con- was an obligation to do some- of occupiers from leased not leave empty-handed as trasted with the suggestion thing, either by payment or property, improper approval by the applicants that Parlia- delivery of goods or services. he took all the information of building plans by local ment had to feed broadcast- It was one pole of an obliga- he required, which was cop- government, interruption of ing visuals of the grossest be- tion, which encompassed a ied from his office computer. extinctive prescription, liabil- haviour and gravest disorder right to receive and a cor- The problem though was that ity for omission, mandament without limitation, the later responding duty to give. It the second applicant and the van spolie, objection to tax as- was and remained unreason- was that which was owing or third respondent were direct sessment, pension fund sur- able. due, anything such as money, competitors. As a result the plus, provision of temporary Turning to jamming of goods or services which a applicants sought an inter- emergency accommodation electronic devices, it was held person was under obligation dict prohibiting the respond- by municipality, rape, right that the employment of any to pay or render to another. ent from unlawfully utilis- to legal representation dur- means, including the use of Therefore, there was merit in ing, communicating and/or ing sentencing, right to life signal disruption, to protect the argument that a vindica- publicising any of the second versus voluntary euthanasia, the President, Deputy Presi- tory claim, since it was based applicant’s confidential infor- seaman’s lien for wages, Tur- dent and dignitaries against on ownership of a thing, mation and/or trade secrets. quand rule and winding-up of the potential threat, existing could not be described as a The interdict was granted companies. or perceived to be existing, debt as envisaged in the Pre- with costs. while still outside the cham- scription Act 68 of 1969. The Spilg J held that the right ber and prior to the start of solution to the problem of to protection from unlaw- the address, was entirely jus- prescription was to be found ful competition required a q
DE REBUS – OCTOBER 2015 - 47 - CASE NOTE
Pain and no gain – should there be compensation for innocent spouses against third parties? By Devon DE v RH (CC) (unreported case no 182/14, Jenkins 19-6-2015) (Madlanga J)
his story is by no means recognised that the legislature should they may serve as a justifiable deterrent unique: High School friends be primarily responsible for law reform, against committing adultery. become lovers, get married, it recognised that courts are obliged to After extensive consideration, the de- have children and portray the develop the common law to promote terrence argument fell short on several picturesque middle-class sub- the spirit, purport and objectives of the points: Turban family… until one spouse steps Bill of Rights and to reflect the chang- • Adultery is generally not planned, and outside of the marriage and commits ing social, moral and economic fabric of even when it is, participants in an adul- adultery. society. terous relationship continue on the basis Such is the story of DE and RH. In this The SCA found that the mores of soci- that the infidelity would not be discov- case the plaintiff’s wife (Mrs H) moved ety or the legal convictions of the com- ered. out of the matrimonial home and insti- munity are significant in determining • Criminal sanctions usually have more tuted divorce proceedings against the wrongfulness of conduct in delictual li- of a deterrent effect than civil claims – plaintiff because the marriage had irre- ability – courts should have regard to the and yet the crime of adultery was abol- trievably broken down. The plaintiff al- changing norms of society when deter- ished more than 100 years ago. leged that the marriage had broken down mining wrongfulness. • Adultery is often the result of a dete- because of an adulterous affair that Mrs Adultery is no longer a criminal of- riorating marriage and not the cause of H was having with the defendant. Mrs fence; abolished due to lack of enforce- it; as expressed by Mrs H in this case. H alleged that her marriage had broken ment. South African courts apply a no Ultimately marriage is an institution down prior to her relationship with the fault principle to divorce actions, polyga- regulated by law, which creates enforce- defendant and that she only became ro- mous marriages are recognised, as well able legal duties, but the bedrock of mar- mantically involved with the defendant as civil unions. The traditional notion of riage is founded in the personal morals after she had left the marital home. the family has changed. These legal de- of the parties who are charged to main- The plaintiff sued the defendant in velopments are all signs of a transforma- tain that marriage. An action against a the Gauteng Division, Pretoria (GP) for tive public policy in a constitutional de- third party would do little, if anything at injury and insult to self-esteem (contu- mocracy. The moral fabric of society has all, to fix an already broken marriage. melia) and loss of comfort and society changed and if our laws do not change (consortium) of his spouse. The High with it, they will be archaic. • The injured innocent spouse Court agreed and awarded the plaintiff The SCA reasoned that the changing The very notion of compensating an in- R 75 000 for damages with interest and morals of modern society, nationally and nocent spouse was analysed. Tradition- costs. internationally, no longer justified a de- ally women were viewed as property of The matter was taken on appeal by lictual action against an adulterous third their husbands. Husbands could only the defendant to the Supreme Court of party. The CC ruled that these actions divorce their wives with an act of parlia- Appeal (SCA) (RH v DE 2014 (6) SA 436 lack the delictual element of wrongful- ment – thus infidelity was viewed as a (SCA)) and later the Constitutional Court ness and must be abolished to bring the terrible blow to a man’s ego and, there- (CC). The SCA in considering the case, concept of wrongfulness in line with ‘the fore, the need for compensation was raised whether it was justified to have community’s general sense of justice’. justified. However, now divorces are no the delictual claim for adultery as a legal • Comparative law fault based and men can easily divorce action in our law in the light of current an adulterous wife. Also there is more societal norms, public policy and the The SCA also considered comparative sympathy for an innocent spouse than changing mores of our society. The SCA common law jurisdictions that inher- shame in modern society. Society does also raised whether it was time to re- ited the action from the English law and not hold an innocent spouse in less es- evaluate and develop the common law to found that the action had been abol- teem. bring it in line with constitutional values. ished. The reason for the abolition in One would assume that the innocent The SCA found that the action derived these jurisdictions were mainly that the spouse’s feelings are more tarnished by from the action iniuriam and based on action was no longer aligned to the cur- their partner’s infidelity than the con- adultery, which afforded an innocent rent considerations of morality; created duct of the third party. After all, the spouse a claim for both contumelia and grave disadvantages and that on a bal- guilty spouse was meant to be faithful loss of consortium was no longer wrong- ance its continued existence could not be and committed to a trusting relation- ful and did not attract liability and, justified. ship. therefore, should no longer form part • The protection of the institution • Constitutional rights of dignity, of our law. The CC confirmed the SCA’s of marriage privacy, freedom of association decision. On a purposive interpretation of the and children Considerations by the courts: law, both the SCA and CC, explored In considering the matter, the SCA and whether the action actually achieved its CC found that the rights of the innocent • Public policy purpose, which was to protect the insti- spouse must be weighed up against that In the judgment, the SCA took into ac- tution of marriage. Both courts consid- of the adulterous spouse and the third count the changing attitude of South ered whether the abolishment of these party. Each of the parties has the right Africans towards adultery and the in- actions would degrade the institution of to freedom of association, security and stitution of marriage. While the SCA marriage or, leave it more vulnerable as privacy.
DE REBUS – OCTOBER 2015 - 48 - This action unduly infringed on indi- and the current attitude towards adul- of the adulterous spouse, which could vidual’s rights to privacy and freedom of tery, does not justify the continuance of include loss of supervision over the association. It forced parties to disclose these actions within our legal system. household and children and preferred to their intimate interactions to the court leave that as the subject for considera- in giving testimony and placing their Way forward tion for another day. private lives under a microscope. It in- The SCA’s judgment, was subsequently Given our transformative public policy trudes into the consenting person’s right upheld by the CC, and abolished the and the judicial willingness to develop to have a sexual relationship with whom- claims for both contumelia and loss of the common law, one can be sure that ever he or she chooses. It undermines consortium. The SCA also made no com- there is bound to be further develop- the rights of a third party who did not ment on other claims based on the actio ment of this area of law in the near fu- undertake to be faithful to anyone. The iniuriam, which relate or are connected ture. children caught up in the middle of such to the institution of marriage such as • See also ‘Delict’ report in law reports a claim may also be subject to adverse the action for abduction, enticement and 2015 (Jan/Feb) DR 53 and ‘Adultery’ re- publicity and emotional trauma. harbouring of someone else’s spouse, port in 2015 (Aug) DR 45. Although the infringement of dignity which are still enforceable in law. suffered by the innocent spouse cannot Also no comment was made by the be denied, it must be weighed against the SCA on the continued existence of the Devon Jenkins LLM (Stell) is a candi- infringement of the fundamental rights claim against a third party based on pat- date attorney at Fasken Martineau in of the adulterous spouse and the third rimonial harm suffered by the innocent Johannesburg. q party and this, along with social norms spouse through the loss of consortium
Constitutional Court in Mhlongo v S; Nkosi v S (CC) (unreported case no 148/14, 149/14, 25-6-2015) (Theron AJ) restores common By Ananias law position existed before Ndhlovu and Tshabalala Others v S [2002] 3 All SA 760 (SCA)
he Constitutional Court (CC) fession or admission is evidence only been induced by any promise or threat has restored the common law against the party making it. Statements proceeding from a person in authority.’ position that extra-curial state- made, like acts done, by one of several Section 216 of Criminal Procedure Tments against co-accused are accomplices or co-conspirators in pursu- Act 51 of 1977, before it was repealed, inadmissible. The court held that admit- ance of the common design, are evidence provided that: ‘[N]o evidence which is of ting extra-curial admissions against a against the others, but statements which the nature of hearsay evidence shall be co-accused unjustifiably offends against are not made in pursuance of the com- admissible if such evidence would have the right to equality before the law. The mon design are evidence only against been inadmissible on the thirtieth day court further held that if the extra-curial the makers.’ of May 1961’. The effect of this section statements were excluded, there is insuf- South African common law indicates had been to prohibit, subject to defined ficient evidence to secure convictions that admission by one accused against a common law exceptions, the admission against the applicants. co-accused is inadmissible, even if it is of hearsay evidence. Prior to the court arriving at its deci- made to a magistrate or peace officer. In the Ndhlovu case, the main question sion, the court questioned what the re- The CC had jurisdiction – since there before the Supreme Court Appeal (SCA) maining case against the applicants was. are constitutional issues involved in the was whether an accused’s extra-curial It was very clear that at the close of the case – namely, the right to equality be- statements incriminating a co-accused, state’s case, the only evidence against fore the law and to a fair trial. These are if disallowed at the trial, can neverthe- the applicants was the extra-curial state- fundamental rights protected in the Bill less be used as evidence against the oth- ments of the co-accused. If the trial court of Rights. The issue at the heart of the er accused. The court allowed the admis- had correctly declared the evidence inad- appeal, was the constitutional tenability sion of an extra-curial admission made missible, the applicants may have been of the decision in Ndhlovu, which allows by one accused against all the accused entitled to be discharged at that stage. extra-curial statements to be admitted as hearsay evidence in terms of s 3(1)(1) In any event, at the end of the trial, the against a co-accused if it is in the in- of the Law of Evidence Amendment Act evidence as a whole was insufficient to terests of justice to do so, is a constitu- 45 of 1988 even if it is disavowed by its ground the applicants conviction. tional issue and is of significant public maker. The reason behind this was that Traditionally the common law prohib- importance. Accordingly, it is in the in- the probative value of an extra-curial ad- ited the admission of extra-curial state- terests of justice for the CC to intervene. mission depends on the credibility of its ments against co-accused. This common In R v Barlin 1926 AD 459 at 462 the maker at the time of making it and not at law prohibition stemmed from English Appellate Division confirmed that state- the time he appears in court. common law. Halsbury’s Laws of Eng- ments by an accused were admissible The common law rule that an extra-cu- land 4 ed (Durban: LexisNexis 1990) vol against their makers: ‘The common law rial statement by an accused is inadmis- 11 (2) at para 1131 summarised the po- allows no statement made by an accused sible against a co-accused was relaxed in sition of English common law as that: person to be given in evidence against Ndhlovu. ‘Where several persons are accused of himself unless it is shown by the pros- Section 3 of the Law of Evidence an offence, and one of them makes a ecution to have been freely and volun- Amendment Act 45 of 1988 (LEA Act) confession or an admission, that con- tarily made – in the sense that it has not provides that ‘hearsay evidence shall not
DE REBUS – OCTOBER 2015 - 49 - CASE NOTE be admitted as evidence at criminal or trate which, although exculpatory in re- tion to the admissibility of extra-curial civil proceedings, unless – spect of him, implicated the other appel- statements made by an accused against (a) each party against whom the evi- lants to a greater or lesser degree. The a co-accused. dence is to be adduced agrees to the first appellant contested the admissibil- Section 9(1) of the Constitution pro- admission thereof as evidence at such ity of the statement, denying the truth vides that everyone is equal before the proceedings; of its content and that it had been freely law and has the right to equal protection (b) the person upon whose credibility and voluntarily made. Although the first and benefit of the law. the probative value of such evidence de- appellant testified during a trial-within- The court held that differentiation pends, himself testifies at such proceed- a-trial held to determine the admissibil- between accused implicated by confes- ings; or ity of his statement, he did not testify sions versus admissions cannot be law- (c) the court having regard to- in his defence in relation to the merits fully sustained. It is not designed to (i) the nature of the proceedings; of the case against him. The other ap- achieve any legitimate purpose. It is an (ii) the nature of the evidence; pellants and their co-accused all testi- irrational distinction that violates s 9(1). (iii) the purpose for which the evidence fied and denied any involvement in the It cannot be saved by the an open and is tendered; events on which the charges were based. democratic society based on human dig- (iv) the probative value of the evidence; The trial judge in his decision made ref- nity, equality and freedom limitations (v) the reason why the evidence is not erence to the judgment of Ndhlovu and clause contained in s 36 of the Constitu- given by the person upon whose credibil- S v Molimi 2008 (3) SA 608 (CC) as au- tion because this limitation on the right ity the probative value of such evidence thority for admitting the statement by to equality before the law is not ‘reason- depends; the first appellant as evidence against able and justifiable in an open and dem- (vi) any prejudice to a party which the the others in terms of the provisions of ocratic society based on human dignity, admission of such evidence might entail; s 3(1)(c) the LEA Act. In relation to the equality and freedom’. and doctrine of common purpose, the court Section 15 (1) of the Canadian Charter (vii) any factor which should in the in Litako had regard to the decision of of rights and freedoms provides that ‘… opinion of the court be taken into ac- this court in S v Mgedezi and Others [e]very individual is equal before and un- count, 1989 (1) SA 687 (A) and concluded that der the law and has the right to equal is of the opinion that such evidence all of the accused had acted in concert in protection and equal benefit of the law should be admitted in the interests of perpetrating the offences. without discrimination and, in particu- justice.’ The SCA in Litako imposed a blanket lar, without discrimination based on Section 219A of Criminal Proce- exclusion of all extra-curial statements race, national or ethnic origin, colour, dure Act 51 of 1977 provides that: ‘(1) against co-accused. This was irrespective religion, sex, age or mental or physical Evidence of any admission made extra- of the relevance of the evidence in ques- disability.’ judicially by any person in relation to the tion and the minor contribution it could commission of an offence shall, if such have to the state’s case. The SCA recently Conclusion admission does not constitute a confes- held in Machaba and Another v S [2015] Since there were some scholars who felt sion of that offence and is proved to 2 All SA 552 (SCA) at para 23 that it has that the decision of the SCA in Litako have been voluntarily made by that per- authoritatively held in Litako ‘that the to have imposed a blanket exclusion of son, be admissible in evidence against extra-curial confession or admission of all extra-curial statements against co- him at criminal proceedings relating to one accused is inadmissible as evidence accused, irrespective of the relevance of that offence: Provided that where the ad- against another accused’. the evidence in question and the minor mission is made to a magistrate and re- The common law position has long contribution it could have had to the duced to writing by him or is confirmed been in existence as in R v Baartman and state’s case it left some questions un- and reduced to writing in the presence of Others 1960 (3) SA 535 (A) at 542 the Ap- answered. The CC has now brought this a magistrate, the admission shall, upon pellate Division considered the common issue of extra-curial admission by an ac- the mere production at the proceedings law rule that an extra-curial statement cused against a co-accused to finality. in question of the document in which the of one accused was inadmissible against The CC has realised that admission of ex- admission is contained – a co-accused. ‘It follows that Baartman tra-curial admission against co-accused (a) be admissible in evidence against and Kock were convicted because the unjustifiably offends against the right to such person if it appears from such trial court found on his confession that equality before the law and held that the document that the admission was made Honey [a co-accused] was one of the interpretation adopted in Ndhlovu, that by a person whose name corresponds to murderers, and that they had been in his extra-curial admissions are admissible that of such person and, in the case of an company not long before and not long against co-accused in terms of s 3(1)(c) admission made to a magistrate or con- after the murder. In convicting Baart- of the Evidence Amendment Act, creates firmed in the presence of a magistrate man and Kock the trial court excluded a differentiation that unjustifiably limits through an interpreter, if a certificate by from its consideration the statements in the s 9(1) right of accused implicated by the interpreter appears on such docu- Honey’s confession which directly impli- such statements, and as a result of that ment to the effect that he interpreted cated them, but it used the confession to found that it was so fair and justifiable truly and correctly and to the best of his establish an essential part of the chain to restore the common law position that ability with regard to the contents of the of inference leading to their conviction, existed prior Ndhlovu. The current posi- admission and any question put to such namely, that Honey had taken part in the tion now is very clear that should extra- person by the magistrate; and murder. This was clearly wrong.’ curial statements be excluded, and the (b) be presumed, unless the contrary The court in Ndhlovu seemed not to evidence left before the court is insuf- is proved, to have been voluntarily made have had regard as to whether the LEA ficient to secure convictions against an by such person if it appears from the Act altered the common law. In inter- accused, he must be acquitted. document in which the admission is con- preting a statute it cannot be inferred tained that the admission was made vol- that it alters the common law unless untarily by such person’. there is a clear intention to do so. The In Litako and Others v S 2014 (3) All CC in Mhlongo held that the LEA Act Ananias Tshabalala LLB (Unisa) is SA 138 (SCA) the accused were convicted altered the common law in relation to a law graduate in Mafikeng. principally on the basis of a statement hearsay evidence but it did not alter or made by the first appellant to a magis- intend to alter the common law in rela- q
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By Alan The invalidity of a Lewis taxpayer’s objection
his article, will consider the the grounds, on the notice of objection and had only briefly visited family in legal basis on which the South form, which Sars prescribes. There is no South Africa during this time. The objec- African Revenue Service (Sars) place for a ‘Dear Sir’ letter , addressed to tion contained precise details of the tax- may declare an objection to be Sars, asking it to allow the objection. ‘De- payer movements, as well as the details invalid and identify the reme- tail’ means just what it says: Detail. An of the foreign taxes, which he had paid. Tdies, which are available to an aggrieved objection should contain the facts, and In support of his objection, the taxpay- taxpayer. law, which will be presented to the tax er attached copies of his employment In particular, it will consider the inva- court, and which would prove your case. contract, his certificate of employment, lidity of an objection, where a taxpayer This rule, does not require a taxpayer as well as his tax returns. He also ten- has allegedly failed to produce the neces- to attach the supporting documents, to dered delivery of his rather voluminous sary supporting documents. It will also the objection: The taxpayer must simply passport, which reflected his movements consider the legislative requirements for specify them, in the objection. during those tax periods. a valid objection. Within 30 days of receipt of the ob- In reply to his objection, Sars re- In conclusion, the article will illustrate jection, Sars may require the taxpayer quested the following ‘supporting in- the law by means of a case study. to produce the additional substantiat- formation’, so that it could ‘process the ing documents necessary to decide the objection’ – The law objection, as prescribed by r 8(1) of the • the days that the taxpayer had spent in In terms of r 7(2), of the rules (GN R550 rules. Presumably these documents, are South Africa, on a company letterhead; GG 37819/11-7-2014 in terms of s 103 the documents, which the taxpayer is • the income he had received in South of the Tax Administration Act 28 of obliged to specify in its objection, as re- Africa, also on a company letterhead, 2011), which prescribe the procedure to ferred to in r 7(2)(b)(iii), quoted above. and be followed in lodging an objection and In terms of r 7(4), where a taxpayer de- • details of the days he had spent work- noting an appeal against an assessment livers an objection, that does not comply ing in South Africa. In addition, Sars also (the rules), ‘[a] taxpayer who lodges an with the requirements of sub-r 7(2), Sars wanted to know whether or not, the tax- objection to an assessment must – may regard the objection as invalid, and payer had worked on a rotation basis. (a) complete the prescribed form in must notify the taxpayer accordingly, Sars did not identify the legal provi- full; and state the ground for invalidity in the sion, on which it based this request. (b) specify the grounds of the objec- notice. This notice must reach the tax- In the first place, this request was tion in detail including – payer, within 30 days of delivery of the most unfortunate, as all of this informa- (i) the part or specific amount of the invalid objection. tion was contained in the detailed objec- disputed assessment objected to; tion. All Sars needed to do, was read it. (ii) which of the grounds of assess- The taxpayer’s remedies: Secondly, in the light of the grounds ment are disputed; and Notice of invalidity of objection, and the terms of r 8 of the (iii) the documents required to sub- rules, the request was legally invalid, as Firstly, the taxpayer may submit a new stantiate the grounds of objection that it requested documents, to which the objection, within 20 days of receipt of the taxpayer has not previously deliv- taxpayer had not referred to in his ob- the notice of invalidity, or on application ered to SARS for purposes of the disput- jection. The only other document, which by the taxpayer, such extended period, ed assessment; Sars could legally request, and which which Sars may allow (r 7(5) of the rules). (c) if a SARS electronic filing service is had not yet been supplied to it, was his Secondly, tucked away in r 52(2)(b) of not used, specify an address at which the passport, to which he had referred in the the rules, is a provision that allows an taxpayer will accept delivery of SARS’s objection. aggrieved taxpayer, to apply to the tax decision in respect of the objection as The taxpayer informed Sars accord- court, by way of a notice of motion, for well as all other documents that may be ingly, and in response, Sars issued a no- an order declaring the objection to be delivered under these rules; tice of invalidity, because he had failed valid. (d) sign the prescribed form or ensure to supply the documents, which it had that the prescribed form is signed by the requested. In my opinion, there was no taxpayer’s duly authorised representa- The case study legal basis on which to issue the notice tive; and I was recently consulted in a matter of invalidity, as Sars could not demand (e) deliver, within the 30 day period, where Sars had issued a notice of inva- the information, which it had requested. the completed form at the address speci- lidity to a taxpayer. After the consulta- In response to Sars notice of invalid- fied in the assessment or, where no ad- tion, it was agreed that a new objection ity, the taxpayer could either pay the dress is specified, the address specified would be prepared, and submitted to assessed taxes, or submit another objec- under rule 2.’ Sars, which would prove that he was in- tion, or seek an order from the tax court, It is important to note that an objec- deed not a resident of South Africa, for confirming that his objection was valid. tion must ‘specify the grounds of objec- the tax periods in question, and that con- Before he could launch the application, tion in detail ...’ (my italics). In simple sequently, he was not liable to tax in this common sense prevailed, and Sars al- terms, a taxpayer must set out the full country. lowed the objection. story, warts and all. The grounds of objection set out in de- It is most unfortunate to note that In most cases, that would require pre- tail, the names and addresses of his for- Sars’ notice of invalidity, incorrectly in- paring the grounds of objection, in a eign employers in China and Thailand; formed the taxpayer, that he only had separately typed document, instead of it also set out the fact that the taxpayer ten days, instead of 20 days, in which to simply inserting a brief description of had lived abroad for a number of years, submit another objection. It also failed
DE REBUS – OCTOBER 2015 - 52 - to inform him that he could approach in light of both the grounds of the par- Court would in all probability agree with the tax court for an order declaring his ticular objection, and the provisions of them, that the particular objection is in- objection to be valid. r 7 of the rules. deed valid. A notice of invalidity may only be is- Alan Lewis BProc LLB (UOFS) LLM Conclusion sued in certain prescribed circumstanc- (UP) is a tax practitioner in Johan- Taxpayer and tax practitioners must es. They may just find that the notice nesburg. consider notices of invalidity carefully, is without substance, and that the Tax q
NEW LEGISLATION NEW LEGISLATION
Legislation published from 3 – 31 August 2015
Philip Stoop BCom LLM (UP) LLD (Unisa) is an associate professor in the department of mercantile law at Unisa.
BILLS INTRODUCED Financial Markets Act 19 of 2012 Petroleum Pipelines Act 60 of 2003 Amendment to the Strate Rules. BN174 Amendment of regulations. GN R764- Criminal Matters Amendment Bill B20 of GG39139/28-8-2015. 765 GG39142/28-8-2015. 2015. Health Professions Act 56 of 1974 Quantity Surveying Profession Act 49 Public Service Commission Amendment Amendment of rules relating to the reg- of 2000 Bill B21 of 2015. istration by medical practitioners and Amendment of guideline tariff of profes- Refugees Amendment Bill B19 of 2015. dentists of additional qualifications. sional fees. BN170 GG39134/28-8-2014. BN164 GG39127/21-8-2015. COMMENCEMENT OF ACTS Long-term Insurance Act 52 of 1998 Rules Board for Courts of Law Act Geomatics Profession Act 19 of 2013. and Short-term Insurance Act 53 of 107 of 1985 Commencement: 1 August 2015. Proc29 1998 Amendment of the rules relating to GG39052/3-8-2015. Fit and proper requirements. BN158 the conduct of the proceedings of Property Valuation Act 17 of 2014. GG39095/14-8-2015. Commencement: 1 August 2015. Proc30 the several provincial and local di- GG39052/3-8-2015. Magistrates’ Courts Act 32 of 1994 visions of the High Court of South Creation of magisterial districts and Africa (rules 44 and 70). GN781 SELECTED LIST OF establishment of district courts in the GG39148/31-8-2015. Limpopo and Mpumalanga provinces Small Claims Courts Act 61 of 1984 DELEGATED LEGISLATION (coming into effect on 1 December Establishment of a small claims court 2015). GN669-672 GG39055/4-8-2015. Agricultural Product Standards Act 119 for the area of Ndwedwe. GN745 of 1990 GG39127/21-8-2015. Medicines and Related Substances Act Amendment of standards and require- Establishment of a small claims court ments regarding the export of dairy 101 of 1965 Declaration of undesirable medicine. for the areas of Newcastle and Utre- products. GN713 GG39099/14-8-2015. GN734 and GN735 GG39114/19-8-2015 cht. GN747 GG39127/21-8-2015. Companies and Intellectual Property and GN739 GG39121/20-8-2015. Establishment of a small claims court Commission National Credit Act 34 of 2005 for the area of Port St Johns. GN746 Accreditation of the Independent Mu- Suspension of the implementation GG39127/21-8-2015. sic Performance Rights Association as a and enforcement of the Affordability Superior Courts Act 10 of 2013 representative collecting society. GN680 Assessment Regulations for six months Proclamation of Phuthaditjhaba Cir- GG39066/7-8-2015. effective from 13 March 2015. GN756 cuit Court as one of the circuit court Construction Industry Development GG39127/21-8-2015. Board Act 37 of 2000 venues of the Free State Division. National Land Transport Act 5 of 2009 Proc35 GG39106/14-8-2015. Best practices for contractor enterprises National Land Transport Strategic in Grades 5 to 9. BN163 GG39101/14-8- Framework in terms of s 34. GenN823 Value-added Tax Act 89 of 1991 2015. GG39092/13-8-2015. Electricity Regulation Act 4 of 2006 Occupational Health and Safety Act 85 Amendment of para 8 of sch 1 to the Act. Renewable energy IPP procurement pro- of 1993 GN R723 GG39100/14-8-2015. gramme 2015 in terms of the Electricity Guidelines for Lift, Escalator and Water Research Act 34 of 1971 Regulations on New Generation Capac- Passenger Conveyor Regulations, 2009. Increase of rates and charges. GN719 ity. GN733 GG39111/18-8-2015. GN R763 GG39132/28-8-2015. GG39099/14-8-2015.
DE REBUS – OCTOBER 2015 - 53 - DRAFT LEGISLATION tions, 2011 in terms of the Civil Aviation practitioners of additional qualifications Act 13 of 2009 for comments. GN R706 in terms of the Health Professions Act 56 Draft Public Service Regulations, 2015 GG39086/14-8-2015. of 1974. GN738 GG39120/20-8-2015. in terms of the Public Service Act 103 of Draft Agricultural Product Standards Draft Merchant Shipping (Radio Installa- 1994. GenN800 GG39051/3-8-2015. Amendment Bill, 2015. GenN826 and tions) Amendment Regulations, 2015 in Draft Refugees Amendment Bill, 2015. GN712 GG39099/14-8-2015. terms of the Merchant Shipping Act 57 GenN806 GG39067/6-8-2015. Amendment of the regulations relating of 1951. GenN875 GG39149/31-8-2015. Amendment of the Civil Aviation Regula- to the registration by emergency care q
EMPLOYMENT LAW Employment law update
the new employer steps into the shoes of the old employer, the new employer should be joined to the proceedings. This view is supported by the finding of the Labour Appeal Court in Anglo Of- fice Supplies (Pty) Ltd v Lotz (2008) 29 ILJ 953 (LAC) in which it was held that em- ployees who have instituted proceedings against an old employer must pursue those proceedings against the new em- ployer instead of the old employer where there has been a transfer of a business as Talita Laubscher BIur LLB (UFS) LLM Monique JeffersonBA (Wits) LLB (Rho- a going concern as the consequences of s 197 is that the new employer assumes des) is an attorney at Bowman Gilfillan in (Emory University USA) is an attorney liability for all actions done by the old at Bowman Gilfillan in Johannesburg. Johannesburg. employer and thus the employees have a right against the new employer. Steenkamp J accordingly granted the was related to a transfer and thus was Can a party be joined to joinder application. automatically unfair. The new employer, proceedings after Temba Big Save CC, to whom the em- Requirements for conciliation? ployees alleged that their employment should have transferred, was not a party suspension In Kunyuza and Another v Ace Wholesal- to the initial proceedings. The employ- In Tsietsi v City of Matlosana Local Mu- ers (Pty) Ltd and Others [2015] 7 BLLR ees, however, sought to join the new em- nicipality and Another [2015] 7 BLLR 749 683 (LC), the Labour Court (LC) was re- ployer in the matter before the LC on the (LC), the municipal manager was placed quired to consider whether a party that basis that it had a direct and substantial on suspension pending the outcome of was not invited to conciliation could interest in the matter as their employ- an investigation into serious allegations be subsequently joined to the proceed- ment should have been transferred to of financial misconduct against him. The ings. In the recent decision of the Con- Big Save in accordance with s 197. employee alleged that the suspension stitutional Court (CC) in National Union Steenkamp J found that in the case of was unfair and sought an order declar- of Metalworkers of South Africa v Inter- disputes arising from transfers of em- ing the suspension to be invalid, unlaw- valve (Pty) Ltd and Others [2015] 3 BLLR ployment in accordance with s 197 of ful and of no legal force and effect as he 205 (CC) (see also 2015 (March) DR 39) it the LRA, the new employer may be sub- alleged that a fair process had not been was held that joinder in the absence of sequently joined as it has a substantial followed in suspending him and the al- conciliation against the party concerned interest in the outcome of the dispute. legations of misconduct were vague. was not permitted. Steenkamp J consid- This is particularly because should the In this case, the employee was invited ered this case but found that the facts in employees seek reinstatement and be to make written representations as to Kunyuza were distinguishable from the granted such relief, they would be rein- the reasons why he should not be placed facts in Intervalve and thus Steenkamp J stated to the new employer. To support on suspension. He was also provided reached a different conclusion to that of this finding, Steenkamp J relied on the with a list of some of the allegations the CC. CC decision in Western Cape Workers against him, which were in the process What distinguished the Kunyuza case Association v Halgang Properties CC of being investigated. The employee did from the CC decision in the Intervalve 2004 (3) BCLR 237 (CC) in which it was not make written representations within matter, was that this case involved em- held that the ‘new employer’ needed to the required time frame as he alleged ployees who were dismissed prior to a be joined to the proceedings so that the that he required further particulars from transfer of a business as a going concern new employer would be bound by a rein- the employer in order to do so. Further- in accordance with s 197 of the Labour statement order. more, the employee alleged that the Relations Act 66 of 1995 (LRA). The Steenkamp J was of the view that given suspension was defective as it did not employees alleged that their dismissal the fact that the effect of s 197 is that comply with the municipal regulations,
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3339-08-15 LabourLawPromotionAd DR.indd 1 2015/08/18 2:31 PM EMPLOYMENT LAW which require that in order to place an which the employee relied should not be against him or her. Furthermore, Rabkin- employee on suspension the employer interpreted to mean that the allegations Naicker J held that the municipal regula- must have a reasonable belief that the of misconduct are required to be set out tions do not require the municipality to employee may jeopardise the investiga- in detail. This is because suspension is provide evidence that the employee may tion. In this regard, the employee relied a precautionary measure and not puni- interfere with the investigation. on two cases, in which it was held that tive in nature. The purpose of suspen- It was held that adhering to the em- municipal regulations require there to sion is to carry out an investigation and ployee’s request for further particulars be a reasonable belief that the employee protect the employer from suffering fur- may actually jeopardise the investigation would jeopardise the investigation or ther harm. Only after such investigation as the employee would be able to tamper be a threat to persons or property be- is conducted would the employer be in with evidence and intimidate witnesses. fore such employee may be suspended. a position to provide the employee with Thus, the application to have the suspen- Rabkin-Naicker J held that the cases on sufficient particularity as to the charges sion declared unlawful was dismissed.
sipersad v Commission for Conciliation, ‘I align myself with those decisions Mediation and Arbitration and Others that say that a settlement agreement that (2003) 24 ILJ 178 (LC) the employee ar- has not been made an arbitration award gued that the commissioner commit- in terms of s 142 of the LRA cannot be ted a misconduct by advising her on reviewed. In my view the correct analy- the substantive merits of her case and sis of cases similar to the present is to in so doing, improperly influenced her appreciate that the Commissioner in fa- into entering the settlement agreement. cilitating a settlement agreement has no The commissioner’s misrepresentation, decision-making powers. In this respect according to the employee induced her it may well be that during the facilitation into signing the aforementioned agree- process the Commissioner improperly ment which, on a proper understanding influences one of the parties in arriv- of the merits of her case, she would not ing at a settlement agreement. In that Moksha Naidoo BA (Wits) LLB (UKZN) have done but for the commissioner’s case the settlement agreement would be is an advocate at the Johannesburg Bar. undue intervention. invalid because it would have been im- The third respondent employer ar- properly concluded. However, whatever Setting aside a settlement gued that the settlement could not be the role and influence the Commissioner set aside as it had not been made an ar- may have had in the conclusion of the agreement bitration award in terms of s 142 of the agreement, the outcome remains the de- Cindi v Commission for Conciliation, LRA and in addition the agreement was cision of the parties and not that of the Mediation and Arbitration and Others not a ruling made by the commissioner Commissioner. (LC) (unreported case no JR2610/13, but rather an agreement reached by the In my view, the third respondent is 4-8-2015) (Molahlehi J). parties and merely recorded by the com- correct in its contention that the remedy missioner. in challenging the agreement that came Subject to s 145 of the Labour Rela- While the court accepted that in the into existence due to the alleged undue tions Act 66 of 1995 (LRA), the Labour Kasipersad case the court set aside a con- influence by the Commissioner, lies in Court (LC) in terms of s 158(1)(g) has the ciliation process, as well as the ensuing the common law principles of contract. power to review the performance of any settlement agreement on the grounds It is in this regard trite that the validity function provided for in the LRA on any that the commissioner in that case exer- of an agreement in terms of the general grounds that are permissible in law. cised an improper influence in persuad- principles of contract can be challenged Relying on this section read with ing the employee to withdraw his case, under the following grounds: s 158(1)(j) of the LRA, the employee ap- there had been other judgments which • impossibility of performance. proached the LC to have a settlement held that a settlement agreement, which • duress and/or undue influence. agreement, concluded under the auspic- was not made an arbitration award in • misrepresentation and/or fraud.’ es of the Commission for Conciliation, terms of s 142, could not be set aside on The court also observed that in seek- Mediation and Arbitration, set aside on review. On this point the court quoted, at ing to set aside an agreement, an ap- the basis that the conciliating commis- para 15, with approval from the decision plicant could not rely on the merits of sioner unduly and improperly influ- in Malebo v Commission for Conciliation his or her dispute which gave rise to the enced her into settling her alleged unfair Mediation and Arbitration (LC) (unre- settlement agreement, as what the em- dismissal dispute. ported case no JR1508/2009, 15-4-2010) ployee attempted to do in casu, but was The employee alleged that the com- (Lagrange AJ). limited rather to the aforestated consid- missioner ‘inappropriately persuaded’ Molahlehi J also referred to other au- erations. her into signing the settlement agree- thorities wherein the LC set aside a con- From the above quote it seems that un- ment by advising her she had no pros- ciliation process having found the com- der these circumstances the appropriate pects of success on the merits of her missioner committed a reviewable act in recourse open to a party who wants to case. As a result of this advice the em- allowing a consultant into proceedings, set aside an agreement reached at con- ployee signed an agreement with her but did not set aside the settlement ciliation, would be to pursue the same employer whereby it was agreed that the agreement, which was reached by the recourse one would embark on to set employee would receive R 1 825,20 from parties themselves under circumstances aside a contract on one or more of the the ‘Road Freight Agency Council’. This where the conciliating commissioner did common law grounds listed above. payment seemingly was in respect of the not unduly influence either party into The court dismissed the application employee’s outstanding leave pay held settling the dispute. to review and set aside the settlement by the council. With reference to the Malebo case and agreement with no order as to costs. On the strength of the decision in Ka- other similar judgments, the court held: q
DE REBUS – OCTOBER 2015 - 56 - RECENT ARTICLES AND RESEARCH
By Meryl Federl Recent articles and research
Please note that the below abbreviations are to be found in italics at the end of the title of articles and are there to give reference to the title of the journal the article is published in. To access the article, please contact the publisher directly. Where articles are available on an open access platform, articles will be hyperlinked on De Rebus Digital.
Abbreviation Title Publisher Volume/issue AJHRLJ African Human Rights Law Journal University of Pretoria (2015) 15(1) DJ De Jure University of Pretoria (2015) 48(1) EL Employment law LexisNexis (2015) 31.3 ILJ Industrial Law Journal Juta 2015 vol 36 July JJS Journal for Juridical Science University of the Free State (2014) 39.2 LitNet Akademies (Regte) (2015) 12 (2) PLD Property Law Digest LexisNexis (2015) June SAJCJ South African Journal of Criminal Juta (2015) 28.1 Justice TSAR Tydskrif vir die Suid-Afrikaanse Reg Juta (2015) 3
Accessing articles from publishers • For LexisNexis articles contact: [email protected] for the publication details. • For individual journal articles pricing and orders from Juta contact Michelle Govender at [email protected]. • For journal articles not published by LexisNexis or Juta, contact the KwaZulu-Natal Law Society Library through their helpdesk at [email protected] (their terms and conditions can be viewed at www.lawlibrary.co.za).
Consumer law Contract kostigbaarheid van ’n aktiewe verdedig- ingsreg in die Suid-Afrikaanse strafregs- Bauling, A and Nagtegaal, A ‘Bread as Nortje, M ‘Pre-contractual duties of dis- telsel’ (2014) 39.2 JJS 122. dignity: The Constitution and the Con- closure in the South African common Howell, S and Couzyn, K ‘The South Af- sumer Protection Act 68 of 2008’ (2015) law (part 2)’ (2015) 3 TSAR 567. 48(1) DJ 149. rican National Drug Master Plan 2013 – Mupangavanhu, Y ‘Fairness a slippery Corporate law 2017: A critical review’ (2015) 28.1 SAJCJ concept: The common law of contract Henning, JJ ‘Some manifestations of the 1. and the Consumer Protection Act 68 of statutory recognition of a partnership as Mujuzi, JD ‘Diversion in the South Af- 2008’ (2015) 48(1) DJ 116. an entity’ (2014) 39.2 JJS 53. rican criminal justice system: Emerging Sibanda, OS ‘WTO Appellate Body Ruling jurisprudence’ (2015) 28.1 SAJCJ 40. in United States – Certain country of ori- Credit law Nkosi, T ‘Where ignorance is bliss tis fol- gin labelling requirements: Trading away Brits, R ‘The “reinstatement” of credit ly to arrest, or is it?’ (2015) 3 TSAR 662. consumer rights and protections, or agreements: Remarks in response to the Peté, SA ‘Angels and demons, innocents striking a balance between competition- 2014 amendment of section 129(3)-(4) of and penitents: An analysis of different based approach in trade and consumer the National Credit Act’ (2015) 48(1) DJ “characters” within the penal discourse interests?’ (2015) 48(1) DJ 136. 75. of Apartheid South Africa 1980 to 1984 - Kelly-Louw, M ‘The 2014 Credit-infor- Part One’ (2015) 48(1) DJ 55. Constitutional law mation Amnesty Regulations: What do Spies, A ‘Reconsidering the amicus cu- Rautenbach, IM ‘The limitation of more they really entail?’ (2015) 48(1) DJ 92. riae participation in S v Zuma: Lessons than one constitutional right by the Otto, JM ‘National Credit Act. Vanwaar for future participation’ (2015) 28.1 SA- same law or action’ (2015) 3 TSAR 602. Gehási? Quo vadit lex? And some reflec- JCJ 59. Swanepoel, N ‘Die aanwending van die tions on the National Credit Amendment Visser, JM ‘Defence challenges of fo- gestruktureerde interdik in die Suid-Af- Act 2014 (part 1)’ (2015) 3 TSAR 583. rensic scientific evidence in criminal rikaanse Konstitusionele regsbedeling: proceedings in South Africa’ (2015) 28.1 ’n Eiesoortige beregtingsproses’ (2015)q Criminal law SAJCJ 24. 12(2) LitNet Akademies (Regte). Bezuidenhout, I and Karels, M ‘Die be- Watney, M ‘Formulation of charges in a
DE REBUS – OCTOBER 2015 - 57 - RECENT ARTICLES AND RESEARCH criminal trial: Imprecision of language Van der Vyver, JD ‘Military interven- Prescription leads to imprecision of thought’ (2015) tion in Syria: The American, British and Sonnekus, JC ‘’n Notariële verband op 3 TSAR 640. French alternatives and the Russian op- roerende goed en uitwissende verjaring’ tion’ (2015) 48(1) DJ 36. Delict (2015) 3 TSAR 611. Scott, J ‘Middellike staatsaanspreeklik- Labour law Property law heid – mistastings oor gevestigde regs- Beerman, R ‘The road to double regu- Botha, M ‘Can an agreement for the sale beginsels’ (2015) 3 TSAR 623. lation paved with good intentions: An of land be cancelled or amended via e- analysis of the interplay between the La- mail?’ (2015) June PLD 2. Election law bour Relations Act and the Competition Botha, M ‘Permission to alter a window Azu, M ‘Lessons from Ghana and Kenya Act regulation of retrenchments’ (2015) in a sectional title scheme – who has the on why presidential election petitions 36 ILJ 1693. say?’ (2015) June PLD 6. usually fail’ (2015) 15(1) AJHRLJ 150. Botes, A ‘Identifying sexual harass- Samuels, A ‘Note on the use of the public ment in the workplace? Do not forget nuisance doctrine in 21st century South Environmental law to remember the Code of Good Practice’ African law’ (2015) 48(1) DJ 181. Madebwe, T ‘A rights-based approach (2015) 36 ILJ 1719. Sonnekus, JC ‘Diensbaarhede val nie uit to environmental protection: The Zimba- Cohen, T ‘Setting the record straight on die hemel nie’ (2015) 3 TSAR 653. bwean experience’ (2015) 15(1) AJHRLJ procedurally unfair large-scale retrench- Van der Walt, AJ and Kriek, CA ‘The 110. ments’ (2015) 36 ILJ 1781. right to a view reconsidered’ (2015) 3 Du Toit, D and Tiemeni, TG ‘Do cooper- TSAR 482. Evidence atives offer a basis for worker organisa- Mujuzi, JD ‘Evidence by means of closed tion in the domestic sector? An explora- Security law circuit television or similar electronic tory study’ (2015) 36 ILJ 1677. Sonnekus, JC and Schlemmer, EC ‘Sa- media in South Africa: Does section 158 Grogan, J ‘Holy water – morals versus meloop van ’n pactum de non cedendo, of the Criminal Procedure Act have ex- the law (Gender discrimination)’ (2015) sessie in securitatem debiti en retensiere- tra-territorial application?’ (2015) 48(1) 31.3 EL 14. gte (deel 2)’ (2015) 3 TSAR 537. DJ 1. Grogan, J ‘Invalid dismissals are no Mujuzi, JD ‘Evidence obtained through more: The LAC invalidates two of its own Sexual orientation violating the right to freedom from tor- judgments’ (2015) 31.3 EL 3. Mwambene, L and Wheal, M ‘Realisation ture and other cruel, inhuman or degrad- Landman, AA ‘Mediating in the shadow or oversight of a constitutional mandate? ing treatment in South Africa’ (2015) of the law’ (2015) 36 ILJ 1766. Corrective rape of black African lesbians 15(1) AJHRLJ 89. Rycroft, A ‘Employer and employee ob- in South Africa’ (2015) 15(1) AJHRLJ 58. Theophilopoulos, C ‘The admissibility ligations with regard to alternatives to Oloka-Onyango, J ‘Debating love, hu- of data, data messages, and electronic retrenchment’ (2015) 36 ILJ 1775. man rights and identity politics In East documents at trial’ (2015) 3 TSAR 461. Viviers, D and Smit, D ‘The phenomenon Africa: The case of Uganda and Kenya’ of weight-based discrimination in South (2015) 15(1) AJHRLJ 28. Family law African employment’ (2014) 39.2 JJS 92. Rudman, A ‘The protection against dis- De Jong, M and Pintens, W ‘Default mat- Wiese, T ‘Retrenchments in order to in- crimination based on sexual orientation rimonial property regimes and the prin- crease profits: The legal and ethical du- under the African human rights system’ ciples of European family law – a Euro- ties of directors’ (2015) ILJ 1748. (2015) 15(1) AJHRLJ 1. pean-South African comparison (part 2)’ (2015) 3 TSAR 551. Legal education Trade mark law Van Schalkwyk, LN ‘Onderhoudstoeken- Du Plessis, MA ‘Clinical legal education: Alberts, RW ‘The timeous enforcement ning vir gades of vennote pendente lite The assessment of student collaboration of trade mark rights’ (2015) 48(1) DJ 172. en by egskeiding: Het ons ’n nuwe bena- and group work’ (2014) 39.2 JJS 67. dering?’ (2015) 48(1) DJ 193. Roos, R ‘Critical cross-field outcomes: A Van Schalkwyk, N ‘Die ekstrinsieke-ge- Rortian view on why and how to teach ju- Meryl Federl BA HDip Lib (Wits) is tuienis-reël: Universele vennootskappe risprudence in South Africa in the 2010s’ an archivist at the Johannesburg en die huwelik buite gemeenskap van (2014) 39.2 JJS 1. Society of Advocates library. E- goed met uitsluiting van wins en verlies Van der Merwe, S ‘Cautioning the care- mail: [email protected] en aanwas’ (2015) 12(2) LitNet Akad- less writer: The importance of accurate emies (Regte). and ethical legal writing’ (2014) 39.2 JJS 23. Human rights Asomah, JY ‘Cultural rights versus hu- Local government man rights: A critical analysis of the Fuo, ON ‘Public participation in decen- For links to open trokosi practice in Ghana and the role of tralised governments in Africa: Making civil society’ (2015) 15(1) AJHRLJ 129. ambitious constitutional guarantees access law more responsive’ (2015) 15(1) AJHRLJ Insurance law 167. journals and open Van Zyl, R ‘Die aanvaardingsvereiste in lewensversekeringskontrakte’ (2015) 48 Marriage law access websites (1) DJ 17. Neethling, J ‘Vonnisbespreking: Ow- visit the De Rebus erspel as gedingsvatbare aksiegrond’ International law (2015) 12(2) LitNet Akademies (Regte). website at Possi, A ‘Striking a balance between community norms and human rights: Mediation www.derebus.org.za The continuing struggle of the East Afri- Feehily, R ‘Confidentiality in commer- can Court of Justice’ (2015) 15(1) AJHRLJ cial mediation: A fine balance (part 1)’ 192. (2015) 3 TSAR 516. q
DE REBUS – OCTOBER 2015 - 58 - OPINION
By Bouwer The use of emolument attachment van Niekerk orders, jurisdiction and forum shopping under the spotlight
uch has been written in the outside the jurisdiction of a court in court found that if s 45 is properly in- press and elsewhere about which the consumer resides or works. terpreted in the context of the MCA (and the recent judgment of • Section 91 of the NCA, which provides also in light of the Bill of Rights), it does University of Stellenbosch that a credit provider must not directly not apply to causes of action based on Legal Aid Clinic and Oth- or indirectly require or induce a con- agreements covered by the NCA. ‘It fol- Mers v Minister of Justice and Correctional sumer to enter into a supplementary lows that when a debtor admits that he Services and Others (WCC) (unreported agreement that contains a provision that or she is liable for a debt and consents to case no 16703/14, 8-7-2015) (Desai J) would be unlawful if it were included in an EAO, section 45 does not permit that – the highly publicised matter concern- a credit agreement. debtor to consent to the jurisdiction of ing the ostensible abuse of emolument The court found that s 45 and 65J of a court outside of the district where the attachment orders (EAOs) by micro- the MCA cannot be read together. The debtor works or resides.’ lenders and debt collectors. An in depth court held that, due to the fact that Although I agree with the eventual study about the morality and legality of s 65J(1)(a) stipulates that EAOs may be finding of the court, I am of the opinion the EAOs falls outside the ambit of this issued from the court of the district that the court had an ideal opportunity, article. Rather, this article will evaluate where the employer of the judgment in addition to the above, to consider and the court’s reasoning as to how it con- debtor resides, carries on business or is incorporate the findings made in Na- cluded that, in proceedings brought by employed, the narrow provisions of s 65J tional Credit Regulator v Nedbank Ltd a creditor for the enforcement of any cannot be reconciled with the broad pro- and Others 2009 (6) SA 295 (GNP). In this credit agreement to which the National visions of s 45. case, the court had among others to, con- Credit Act 34 of 2005 (NCA) applies, The court also found that ‘[i]t is a well- sider in which magistrate’s court a debt s 45 of the Magistrate’s Courts Act 32 established principle in law that where counsellor must bring an application for of 1944 (MCA) does not permit a debtor two provisions are contradictory, the debt counselling on behalf of an over- to consent in writing to the jurisdiction provision that is specific trumps the indebted consumer. This is significant, of a magistrate’s court other than that provision that is general. In this case, as the consumer’s rights were evaluated in which that debtor resides or is em- the provisions of section 65 are specific in the context of the NCA and in respect ployed. in that they govern emoluments attach- of agreements that are governed by the In the judgment, the court pointed out ment orders. Accordingly, section 65J NCA. Similarly, in the case under dis- that the most disturbing feature of the quite clearly trumps section 45.’ cussion, the ruling that the court made matter was the manner in which micro- The court furthermore found that the was also in the context of proceedings lenders forum shopped for courts to en- broad approach taken by s 45 directly brought by a creditor for the enforce- tertain their applications for judgment contradicts and undermines ss 90 and ment of any credit agreement to which and the issuing of EAOs. It was common 91 of the NCA, as the underlying ration- the NCA applies. cause that the micro-lenders obtained ale to the limitation of jurisdiction con- In the National Credit Regulator case, most of their orders from courts located tained in ss 90 and 91 is the protection the court dealt with the question of ju- great distances from where the debtors of consumers. Thus, s 45 of the MCA risdiction as follows: resided and worked. It was argued and undermines the objects or purposes of ‘The general rule regarding jurisdic- accepted that by doing this, the debtors the NCA. tion is “actor sequitur forum rei. The were denied their rights to access the In addition, the court found that the plaintiff (or applicant) ascertains where courts and enjoyment of the protection fact that the NCA’s jurisdiction provi- the defendant (respondent) resides, of the law. sions trump s 45 is also supported by goes to his forum, and serves him with In considering the issue of jurisdic- the following: the summons (notice of motion) there”. tion, the court found that the legislative • The interpretative principle that states Having regard to this general rule, an ap- provisions that are relevant are: that when the provisions of a later Act plicant must bring his or her application • Section 45 of the MCA, which provides are inconsistent with the provisions of in the magistrate’s court that has juris- for circumstances in which parties may an earlier Act, the later Act supersedes diction in respect of the person of the consent to the jurisdiction of a court to the earlier provisions. The NCA came respondent.’ determine any action that is otherwise into force on 1 June 2006, while s 45 of The court then proceeded to deal with beyond its jurisdiction. the MCA came into force in July 1945. s 28 of the MCA – the section that deals • Section 65J(1)(a) of the MCA, which pro- • The NCA establishes a protective re- with jurisdiction in respect of persons. vides that an EAO must be issued from gime aimed at preventing the exploita- Section 28(1) reads as follows: ‘Saving the court of the district where the em- tion and abuse of consumers. The broad any other jurisdiction assigned to a court ployer of the judgment debtor resides, consent provided for in s 45 of the MCA by this Act or by any other law, the per- carries on business or is employed. fails to protect consumers. In the cir- sons in respect of whom the court shall, • Section 90(2)(k)(vi)(bb) of the NCA, cumstances it is clear that s 45 of the subject to subsection (1A), have jurisdic- which provides that the provision of MCA is inconsistent with ss 90 and 91 tion shall be the following and no other;’ a credit agreement is unlawful if it ex- of the NCA and is trumped by the latter (my italics). In interpreting this section, presses on behalf of the consumer a con- provisions. the court found that the debt counsellor sent to jurisdiction of any court seated Taking cognisance of the above, the must refer the matter to the appropriate
DE REBUS – OCTOBER 2015 - 59 - BOOKS FOR LAWYERS magistrate’s court, to wit the one that necessarily implies that a consumer is ei- should have, in addition to its reasons, has jurisdiction in respect of the person ther over-indebted or someone to whom included in making its ruling pertaining of the consumer. The reasoning was that reckless credit has been granted or both, to jurisdiction. this is so due to the fact that the essen- coupled with the fact that those agree- tial purpose of the debt review proce- ments are governed by the NCA, I am Bouwer van Niekerk BA (Law) LLB dure is to protect the consumer who is of the opinion that the reasoning by the (SU) Post Grad Dip Labour Law (UJ) over-indebted or to whom reckless credit court in the National Credit Regulator Cert Business Rescue Practice (Uni- has been granted. case is exactly akin to the reasoning that sa & LEAD) is an attorney at Smit Due to the fact that the use of EAOs the court (in the case under discussion) Sewgoolam Inc in Johannesburg. q
A guide to the Protection of Personal Information Act
By Elizabeth de Stadler and Paul Esselaar Cape Town: Juta (2015) 1st edition Price: R 250 (incl VAT) 178 pages (soft cover)
n the last years of the 20th cen- to be taken in complying with POPI and ‘POPI checklist’, it must be recognised tury, as we took our first uncertain alerting readers to provisions of POPI that addressing the information security steps into the information society that may be unclear and potentially in issues will be critical to the achievement in which we live today, data protec- conflict with existing law. of compliance with POPI. Further, if re- tion legislation was the initial juris- In addition, the authors have provided sponsible parties are serious about the Iprudential effort to address the poten- useful references to guidelines and other protection of personal information, they tial abuses heralded by computers to the information published in jurisdictions will have to develop information security privacy of our information. Accelerated that are more mature than South Africa skills as a core competency within their exponentially by the advent of the Inter- in protecting personal information. This organisations. These changes will, as the net and cellular technologies, the very is important as it can be confidently pre- authors have emphasised, require ongo- rapidly developing jurisprudence facili- dicted that the Information Regulator ing training. tating the protection of the fundamental will take into account the constitutional This book is a must read for all law- human right of privacy has been the cor- imperative to consider and, where ap- yers. Our professional duty to protect nerstone in shaping law relating to novel propriate, apply laws developed in other the confidentiality of client information applications of technology in the 21st jurisdictions. In many instances lawyers is identical in principle to the protection century. In South Africa, the recogni- will be well advised to consider the de- of personal information. Unfortunately, tion of privacy as a fundamental human tailed guidelines and approaches taken the safeguards developed for paper right was enshrined in our Constitution in other jurisdictions to the processing and text have little or no application in in 1996. Regrettably, the mechanisms of personal information. electronic communications and records. for the protection of this constitutional Due to the dynamic nature of the Commentaries on the subject make the right would only become a reality 20 protection of personal information, the point that the protection of the privacy years thereafter, with the likely com- rapid rate at which technologies disrupt of information is impossible without in- mencement of the Protection of Personal current concepts of processing of infor- formation security. Information Act 4 of 2013 (POPI) in 2016. mation and the development of a novel It is also a book that should be recom- Consistent with the lamentable reti- legal concepts (such as ‘Do not track’, mended by lawyers to their clients. While cence to embrace technology as part of ‘The right to be forgotten’ and the right lawyers can assist clients in identifying their daily lives and therefore our law, not to be subject to geolocational sur- and addressing their compliance obliga- South African lawyers have generally veillance) as well as the rulings that can tions, it is the processors of personal taken the enactment of POPI extreme- be expected from the regulator. It will be information themselves that have to de- ly lightly. With very few exceptions, necessary for the authors to revise the velop the appropriate safeguards for the South African lawyers are not properly publication regularly, if it is to remain protection of information. equipped to deal with the enormous im- relevant. In doing so the authors are en- From an educational perspective the pact that the Act will have on their own couraged to address the importance of book provides material not only for busi- practices, let alone advice that they may information security in the protection of nesses but also those universities who be required to provide to clients. It is privacy of information. Information se- are seeking to introduce informations against this background that the publi- curity has developed as a direct response and communications technology law in cation of the first book on POPI is to be to data protection legislation in those general, and in particular the protection welcomed. countries that took the initial steps in of personal information, into their cur- The authors are to be congratulated this direction some 30 years ago. It is a riculae, in preparing our future lawyers on providing a concise and easy to read discipline, which is not confined to tech- for the realities of the 21st century. explanation of POPI, which addresses nu- nologists, and the development of the merous key points and frequently asked discipline has been a collaborative effort Mark Heyink BA LLB (Wits) HDip questions relating to the processing of between technologists, lawyers and oth- personal information. Their explana- er subject experts. Therefore, while the Company Law (Wits) is an attorney at tions of the law are also supplemented authors indicate the importance of col- Mark Heyink Information Attorney by ‘rules of thumb’ that are helpful in es- laboration with technologists in a useful in Johannesburg. q tablishing some of the essential actions annexure to their commentary entitled
DE REBUS – OCTOBER 2015 - 60 - Legal Loose-leaf I LexisMobile Free updates for 12 months
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