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Incorrect Legal Standard Applied? Zuma and the Zondo Commission

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Incorrect Legal Standard Applied? Zuma and the Zondo Commission THE SA ATTORNEYS’ JOURNAL APRIL 2021 INCORRECT LEGAL STANDARD APPLIED? ZUMA AND THE ZONDO COMMISSION Should an unrepresented accused The rescission of divorce orders enter into plea and sentence for purposes of claiming agreements? spousal maintenance A turning of the tide: Exploring the impact of pollution in the shipping industry Lifestyle audits: Bringing legal and ethical Navigating the legal regulatory issues considerations under scrutiny with self-driving cars in South Africa Remove, withdraw or postpone? Keep your brand – appoint a registered The principle of double jeopardy in and credible auditor competition law THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL CONTENTS April 2021 Issue 616 THE SA ATTORNEYS’ JOURNAL ISSN 0250-0329 APRIL2021 INCORRECT LEGAL STANDARD APPLIED? 10 ZUMA AND THE ZONDO COMMISSION Should an unrepresented accused The rescission of divorce orders enter into plea and sentence for purposes of claiming 12 agreements? spousal maintenance 16 A turning of the tide: Exploring the impact of pollution in the 14 shipping industry Regular columns Editorial 3 Lifestyle audits: Bringing legal and ethical Navigating the legal regulatory issues considerations under scrutiny 22 18 with self-driving cars in South Africa Letters to the Editor 4 Remove, withdraw or postpone? Keep your brand – appoint a registered The principle of double jeopardy in 5 and credible auditor competition law 24 Practice management Keep your brand – appoint a registered and credible auditor 5 10 Incorrect legal standard applied? Zuma and the Zondo Commission Practice notes n 28 January 2021, the Constitutional Court Mozambique, Cabo Delgado insurgency – what does handed down its judgment in the Judicial this mean for foreign investors and international OCommission of Inquiry into Allegations of lenders who have vested interests? 7 State Capture, Corruption and Fraud in the Public Section 40 of the Children’s Act: Parenthood by Sector including Organs of State, to compel former syringe or intention? 8 President Jacob Zuma to appear and give testimo- ny before it. Legal practitioner, Andile Mcineka, warns that a constitutional crisis manifested itself The law reports 27 in the manner in which the court dealt with direct access. New legislation 31 Case notes Should an unrepresented accused 12 A purposive interpretative approach to the calculation enter into plea and sentence of mineral royalties 33 agreements? ection 105A of the Criminal Procedure Act 51 Employment law update of 1977 permits an accused person who has Suspension without pay 35 Slegal representation to enter into a plea and Polygraph test and circumstantial evidence 36 sentence agreement. However, s 105A(1) prohib- its an unrepresented accused from entering into a Recent articles and research 37 plea and sentence agreement with the prosecuting authority. Legal practitioner, Nomonde Msimanga, explores the constitutional impediments contained Opinion in s 105A with reference to self-representation of WhatsApp Saga – a reminder of the importance of an accused person. POPIA in South Africa 40 DE REBUS – APRIL 2021 - 1 - EDITOR: FEATURES Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) A turning of the tide: Exploring the impact of 14 PRODUCTION EDITOR: pollution in the shipping industry Kathleen Kriel BTech (Journ) (TUT) hen the MV Wakashio hit a coral reef off the coast of SUB-EDITOR: SUB-EDITOR: Mauritius on 25 July 2020 resulting in almost 1 000 Kevin O’ Reilly Isabel Joubert Wtonnes of oil being discharged into the ocean, it high- MA (NMU) BIS Publishing (Hons) (UP) lighted the impact of maritime pollution on marine life and the NEWS REPORTER: EDITORIAL SECRETARY: ecosystem. Legal practitioner, Sharon Phumzile Msiza, discuss- Kgomotso Ramotsho Shireen Mahomed Cert Journ (Boston) es the three main pollutants in the maritime/shipping industry, Cert Photography (Vega) namely, air pollution, ballast water and oil spills. EDITORIAL COMMITTEE: The rescission of divorce orders for Giusi Harper (Chairperson), Peter Horn, 16 Maboku Mangena, Mohamed Randera purposes of claiming spousal maintenance EDITORIAL OFFICE: 304 Brooks Street, Menlo Park, he common law reciprocal duty of support between Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. spouses ends on the termination of the marriage, either Tel (012) 366 8800 Fax (012) 362 0969. E-mail: [email protected] by divorce or by death. However, this duty of support T DE REBUS ONLINE: www.derebus.org.za can be extended post-divorce by a court in terms of s 7 of the Divorce Act 70 of 1979. Parties can waive their right to claim CONTENTS: Acceptance of material for publication is not a guar- spousal maintenance on divorce, but cannot do so when the antee that it will in fact be included in a particular issue since this depends on the space available. Views and opinions of this journal marriage is concluded. Regional magistrate, James Dumisani are, unless otherwise stated, those of the authors. Editorial opin- Lekhuleni, writes that the problem, however, arises when a di- ion or comment is, unless otherwise stated, that of the editor and vorce order is granted in default of a party who seeks to claim publication thereof does not indicate the agreement of the Law Society, unless so stated. Con tributions may be edited for clarity, spousal maintenance. space and/or language. The appearance of an advertisement­­ in this publication does not necessarily indicate approval by the Law 18 Navigating the legal regulatory issues with Society for the product or service ad ver tised. self-driving cars in South Africa For fact checking, the De Rebus editorial staff use online products from: ccording to former Minister of Transport, Blade • LexisNexis online product: MyLexisNexis. Go to: www.lexis- nexis.co.za; and Nzimande, even though there are no self-driving cars • Juta. Go to: www.jutalaw.co.za. A(SDC) currently on the roads of South Africa (SA), there are plans for their introduction. Candidate legal practitioner, PRINTER: Ince (Pty) Ltd, PO Box 38200, Booysens 2016. Charissa Chengalroyen, explains that the proposed introduc- AUDIO VERSION: The audio version of this journal is available tion of SDCs viewed against the backdrop of SA’s high rate of free of charge to all blind and print-handicapped members of car accidents, will probably require legal regulation in various Tape Aids for the Blind. forms. ADVERTISEMENTS: Main magazine: Ince Custom Publishing Lifestyle audits: Bringing legal and ethical Contact: Dean Cumberlege • Tel (011) 305 7334 22 Cell: 082 805 1257 • E-mail: [email protected] considerations under scrutiny Classifieds supplement: Contact: Isabel Joubert Tel (012) 366 8800 • Fax (012) 362 0969 he reported request by the Gauteng Provincial Premier for PO Box 36626, Menlo Park 0102 • E-mail: [email protected] the State Security Agency to conduct lifestyle audits on Members of the Executive Council warrants some prob- ACCOUNT INQUIRIES: David Madonsela T Tel (012) 366 8800 E-mail: [email protected] ing as to its alignment with institutional legal mandates within the context of public administration governance. Directing the CIRCULATION: De Rebus, the South African Attorneys’ Journal, is request to the particular institution, infers that it has a legal published monthly, 11 times a year, by the Law Society of South Africa, 304 Brooks Street, Menlo Park, Pretoria. De Rebus is circu- obligation that assigns it either a direct or shared accountabil- lated digitally to all practising legal practitioners and candidate ity role in the matter. Diplomat, Dr Lincoln Cave, writes that legal practitioners free of charge and is also available on general this request brings both legal and ethical considerations under subscription. scrutiny. NEW SUBSCRIPTIONS AND ORDERS: David Madonsela Tel: (012) 366 8800 • E-mail: [email protected] Remove, withdraw or postpone? The 24 SUBSCRIPTIONS: principle of double jeopardy in competition Postage within South Africa: R 1 990 (including VAT). law Postage outside South Africa: R 2 100. egal practitioner, Tshepo Mashile, discusses the case of the Competition Commission of South Africa v Beefcor (Pty) Ltd and Another [2020] 2 CPLR 507 (CAC), where the Com- De Rebus subscribes to the Code © Copyright 2021: L of Ethics and Conduct for South petition Appeal Court considered the question whether the Law Society of South Africa 021-21-NPO African Print and Online Media that Tel: (012) 366 8800 prescribes news that is truthful, accurate, fair and balanced. If we do withdrawal of a complaint by the Competition Tribunal initi- not live up to the Code, contact the Public Advocate at (011) 484 3612 ated in terms of s 49B(1) of the Competition Act 89 of 1998 or fax: (011) 484 3619. You can also contact our Case Officer on serves to put an end to the proceedings before the Competition Member of Member of [email protected] or The Audit Bureau of The Interactive lodge a complaint on the Press Circulations of Southern Africa Advertising Bureau Council website: Tribunal, on the basis that the complaint cannot be reinstated. www.presscouncil.org.za DE REBUS – APRIL 2021 - 2 - EDITORIAL Court digitisation – the future is here t the beginning of 2020, the spend hours searching for court files to Gauteng Division and Gaut- have matters set down, and in some in- eng Local Division of the stances where court files could not be High Court, Pretoria and Jo- obtained, had to search for files on five hannesburg implemented a separate days and once the search failed, Adigital/electronic case management and were only then entitled to apply for dupli- litigation system, named CaseLines. The cate files to be opened. aim of the case management system is to These challenges became a thing of the enable litigants to file and upload plead- past, as all parties including the judici- ings and other documents electronically ary have electronic access to the court and to present their case and argument file.
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