THE SA ATTORNEYS’ JOURNAL SEPTEMBER 2016 I HEARD IT THROUGH THE GRAPEVINE: THE DIFFERENCE BETWEEN LEGAL PROFESSIONAL PRIVILEGE AND CONFIDENTIALITY When is it appropriate for the sentencing court to interfere with parole? Dying declaration – should the dead have a say in a matter? Evictions – a sad reality in South Africa On the relativity of property rights in the Constitution NADEL NEC resolutions discussed at press conference BLA strengthens relations with the NBA Newly appointed judges acknowledged Brieng Pattern Task Team drafting brieng protocol for the profession GLOBAL chambers AND PARTNERS 2016 top tier firm top tier firm 6 top tier firm INDIA BUSINESS team of the year Managing Intellectual LAW JOURNAL TM 2016 SA firm of the year Property TOP FOREIGN top tier firm LAW FIRMS top foreign law firm elite law firm recommended firm recommended firm ENSafrica | Africa’s largest law firm ENSafrica.com ENSafricaAd210x297Mar2016_award_strip.indd 1 2016-07-12 12:56:24 PM THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL CONTENTS SEPTEMBER 2016 Issue 567 ISSN 0250-0329 Regular columns Editorial 3 News NADEL NEC resolutions discussed at press conference 4 Black Lawyers Association strengthens relations with the National Bar Association 5 4 Newly appointed judges acknowledged 7 Pathway to progress: One small act can make an impact 8 2016 annual general meetings 8 Cape Town Candidate Attorneys’ Association update 10 LSSA News Briefing Pattern Task Team drafting briefing protocol for the profession 12 LSSA fields election observer team 12 People and practices 14 7 7 Practice management Applying for a Fidelity Fund Certificate 15 Trust account risk and risk to the practice’s business 17 Practice note The validity of a verbal antenuptial contract 18 Retirement funding – obligations on the employer 19 The Special Voluntary Disclosure Programme: Recent developments 20 Book for lawyers 21 10 The law reports 35 Case notes Lockout of members of trade unions not party to a bargaining council 41 Employer liable for damages caused to ex-employee due to non-compliance with debarment process 42 New legislation 44 Employment law update 45 28 30 Recent articles and research 47 DE REBUS – SEPTEMBER 2016 - 1 - EDITOR: FEATURES Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) I heard it through the grapevine: The 22 PRODUCTION EDITOR: Kathleen Kriel – difference between legal professional BTech (Journ) (TUT) privilege and confidentiality SUBEDITOR: SUBEDITOR: n the context of legal professional ethics, the terms ‘con- Kevin O’ Reilly – Isabel Joubert – fidentiality’ and ‘privilege’ are often used interchangea- MA (NMMU) BIS Publishing (Hons) (UP) bly. While these two terms may overlap in some respects, I EDITORIAL SECRETARY: they remain two distinct concepts says Kristin Wagner and Shireen Mahomed Claire Brett. The distinction between confidentiality and legal EDITORIAL COMMITTEE: professional privilege is absolutely essential insofar as their Mohamed Randera (Chairperson), Denise Lenyai, differences ensure the proper functioning of the South African Giusi Harper, Peter Horn, Lutendo Sigogo legal system, which is dependent on freedom of communica- EDITORIAL OFFICE: 304 Brooks Street, Menlo Park, tion between legal practitioners and their clients. Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. Tel (012) 366 8800 Fax (012) 362 0969. E-mail: [email protected] When is it appropriate for the 26 DE REBUS ONLINE: www.derebus.org.za sentencing court to interfere with parole? CONTENTS: Acceptance of material for publication is not a guarantee that it will in fact be included in a particular issue since this depends on n practice there are judicial officers who impose a sentence the space available. Views and opinions of this journal are, unless otherwise stated, those of the authors. Editorial opinion or comment is, unless other- that the accused will undergo a certain period of imprison- wise stated, that of the editor and publication thereof does not indicate the ment and will not be eligible for parole. Nicholas Mgedeza agreement of the Law Society, unless so stated. Con tributions may be edited I for clarity, space and/or language. The appearance of an advertisement in and Dumisani Masuku discuss whether the magistrates’ courts this publication does not neces sarily indicate approval by the Law Society are vested with the powers to impose a sentence where parole for the product or service ad ver tised. is denied? De Rebus editorial sta use online products from: • LexisNexis online product: MyLexisNexis. Go to: www.lexisnexis.co.za; and 28 Dying declaration – should the dead have a • Juta. Go to: www.jutalaw.co.za. say in a matter? PRINTER: Ince (Pty) Ltd, PO Box 38200, Booysens 2016. he dying declaration is based on the Latin maxim ‘nemo AUDIO VERSION: The audio version of this journal is available free of charge to all blind and print-handicapped members of moriturus praesumitur mentiri’. Literally translated it Tape Aids for the Blind. means ‘a man will not meet his maker with a lie in his T ADVERTISEMENTS: mouth’. This article written by Sherika Maharaj, discusses the Main magazine: Ince Custom Publishing history of the dying declaration and the legal principles prac- Contact: Dean Cumberlege • Tel (011) 305 7334 Cell: 082 805 1257 • E-mail: [email protected] tised in South Africa. Classieds supplement: Contact: Isabel Joubert Tel (012) 366 8800 • Fax (012) 362 0969 PO Box 36626, Menlo Park 0102 • E-mail: [email protected] Evictions – a sad reality in South Africa 30 ACCOUNT INQUIRIES: David Madonsela Tel (012) 366 8800 E-mail: [email protected] adeleine Truter writes that South Africa’s history is CIRCULATION: De Rebus, the South African Attorneys’ Journal, is one where the majority of people have been deprived published monthly, 11 times a year, by the Law Society of South of land, and have experienced a lack of access to hous- Africa, 304 Brooks Street, Menlo Park, Pretoria. It circulates free of M charge to all practising attorneys and candidate attorneys and is ing and despite the progress made by the legislature and ju- also available on general subscription. diciary to ensure that no South African is left homeless, land ATTORNEYS’ MAILING LIST INQUIRIES: Gail Mason evictions are still rampant, and officials on the ground are Tel (012) 441 4629 E-mail: [email protected] finding ways to circumvent the overarching test of ‘justice and All inquiries and notications by practising attorneys and candi- date attorneys should be addressed to the relevant law society equity’, introduced by the PIE Act. which, in turn, will notify the Law Society of SA. SUBSCRIPTIONS: General, and non-practising attorneys: R 920 p/a On the relativity of property rights in the Retired attorneys and full-time law students: R 710 p/a 32 Cover price: R 95 each Constitution Subscribers from African Postal Union countries (surface mail): R 1 465 (VAT excl) he very first founding provision of the Constitution de- Overseas subscribers (surface mail): R 1 790 (VAT excl) clares that the Republic is a state founded on values. NEW SUBSCRIPTIONS AND ORDERS: David Madonsela TOur social order is in the first place a value based soci- Tel: (012) 366 8800 • E-mail: [email protected] ety, and not rule based. This article, written by Johan van der Merwe, aims to consider briefly, and in very broad strokes, how the concept of property rights in a democratic constitu- © Copyright 2016: tion differs from the pre-constitutional dispensation, what the Law Society of South Africa 021-21-NPO values are that underlie the rules of constitutional property Tel: (012) 366 8800 rights, particularly vis-à-vis use rights, the impact on social and environmental justice, and how the Constitutional Court Member of The Audit Bureau of is giving effect to these changes. Circulations of Southern Africa DE REBUS – SEPTEMBER 2016 - 2 - EDITOR’S NOTE Free and fair elections? n the heels of the the aftermath of the elections local government state that the African National elections held on 3 Congress (ANC) is consider- August, the Law So- ing changing the Electoral Act, ciety of South Afri- which it blames for benefiting Oca (LSSA) issued a press release, opposition parties at its ex- which states that ‘the elections pense. The ANC were to discuss were on the whole free and fair’. the electoral system and the Mapula Thebe – Editor The LSSA fielded a team of over calculation of allocated seats at 300 admitted attorney election its upcoming national executive observers during the local gov- committee meeting. The elec- ernment elections. tion results show that the ANC Would you like to write The press release goes on fur- received the most votes across for De Rebus? ther to state that there were the country; amongst others, it De Rebus welcomes article contri- some irregularities that were had to seek coalitions in three butions in all 11 official languages, especially from legal practitioners. observed during the elections. important metros in Gauteng Practitioners and others who wish The LSSA will investigate the after losing Nelson Mandela to submit feature articles, practice irregularities further; all the Bay, in the Eastern Cape to the notes, case notes, opinion pieces details regarding these will be Democratic Alliance. The sup- and letters can e-mail their contribu- tions to [email protected]. noted fully in the final report, port of the ANC has fallen from The decision on whether to pub- which will be published during 62% of the national vote in 2011 lish a particular submission is that August. to 54% in the 2016 local govern- of the De Rebus Editorial Com- mittee, whose decision is final. In It goes without saying that ment elections. general, contributions should be free and fair elections are part Whether there are legitimate useful or of interest to practising and parcel of any thriving de- grounds to change the Electoral attorneys and must be original and not published elsewhere.