THE SA ATTORNEYS’ JOURNAL

OCTOBER 2014 Courtroom of the future – virtual courts, e-courtrooms, videoconferencing and online dispute resolution

Calculating legal costs: Changing the way we charge The link between the Legal Practice Bill and access to justice

THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL CONTENTS

OCTOBER 2014 Issue 546 ISSN 0250-0329

Regular columns

Editorial 3 Where on the profession’s agenda – if at all – are the strategies to deal with challenges faced by female lawyers?

Letters to the editor 4 News 8 10 SADC stakeholders form coalition to lobby for restoration of a SADC Tribunal 5 Women and the judiciary 6 ICT and the profession 10 Shaun Barns wins SALRC 10th anniversary essay competition 13 SADC lawyers urged to monitor accountability, transparency and implementation 14 SADC LA AGM 20 LSSA news LSSA raises grave concern about scurrilous attacks on Public Protector and Judge Masipa 22 11 12 LSSA calls for representation for attorneys and advocates on new Legal Aid South Africa Board 22 Tshepo Shabangu to represent LSSA at IBA 23 LEAD launches course for women lawyers in leadership 23 LEAD launches pilot workshop on writing for the media and law journals 23

People and practices 24

Practice note The meaning of debt for actions against organs of state 25 19 Electronic delivery of communications to taxpayers: Is SARS toeing the line? 26

Books for lawyers 42

The law reports 43

New legislation 50

Employment law update 51

Recent articles and research 56

Opinion Failing the objectives of the MPRDA 58 20 Is theft a competent verdict on a charge of fraud? 59

DE REBUS – OCTOBER 2014 - 1 - EDITOR: FEATURES Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) PRODUCTION EDITOR: N ews EDITOR: Kathleen Kriel – BTech Nomfundo Manyathi-Jele (Journ) (TUT) NDip Journ (DUT) BTech (Journ)(TUT)

sUB-EDITOR: Kevin O’ Reilly – MA (NMMU) Editorial secretary: Shireen Mahomed Editorial Committee: Danie Olivier (Chairperson), Peter Horn, Courtroom of the future – virtual courts, Mohamed Randera, Lutendo Sigogo 28 ISSUE EDITOR: e-courtrooms, videoconferencing and online Barbara Whittle dispute resolution Editorial Office: 304 Brooks Street, Menlo Park, Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. Tel (012) 366 8800 Fax (012) 362 0969. he future of the courts is greatly dependent on tech- E-mail: [email protected]

nology and how technology can improve their func- DE REBUS ONLINE: www.derebus.org.za Ttioning. In this ariticle, Dr Izette Knoetze discusses Contents: Acceptance of material for publication is not a guarantee the various technologies which can be used in the court- that it will in fact be included in a particular issue since this depends on the space available. Views and opinions of this journal are, unless otherwise room of the future. 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 agreement of the Law Society, unless so stated. Con­tributions may be edited Reform, reintegrate, rehabilitate – for clarity, space and/or language. The appearance of an advertisemen­­ t in 33 this publication does not neces­sarily indicate approval by the Law Society Balancing restorative justice and juvenile of- for the product or service ad­­vertised.­­­­ De Rebus editorial staff use the LexisNexis online product: MyLexisNexis. fender rehabilitation Go to www.lexisnexis.co.za for more information. P Incerinter (Pty): Ltd, PO Box 38200, Booysens 2016. he introduction of the Child Justice Act 75 of 2008 set Audio version: The audio version of this journal is available free of charge to all blind and print-handicapped members of new standards for the protection of the child offender Tape Aids for the Blind. Tby establishing the Child Justice Court. Flowing from Advertisements: the juvenile justice reforms is the principle of restorative Main magazine: Ince Custom Publishing Contact: Ian Wright • Tel (011) 305 7340 • Fax (011) 241 3040 Cell: justice entrenched by the Act in the criminal justice system 082 574 6979 • E-mail: [email protected] with respect to children who are in conflict with the law. Classifieds supplement: Contact: Kathleen Kriel Tafadzwa Mukwende Tel (012) 366 8800 • Fax (012) 362 0969 discusses the appropriate sentenc- PO Box 36626, Menlo Park 0102 • E-mail: [email protected] ing options for juvenile offenders. Account inquiries: David Madonsela Tel (012) 366 8800 E-mail: [email protected] Circulation: De Rebus, the South African ­Attorneys’ Journal, is The link between the Legal Practice Bill and published monthly, 11 times a year, by the Law Society of South 37 Africa, 304 Brooks Street, Menlo Park, Pretoria. It circulates free of access to justice charge to all practising attorneys and candidate attorneys and is also available on general subscription. Attorneys’ mailing list Inquiries: Gail Mason ince the advent of our democracy the executive, the leg- Tel (012) 441 4629 E-mail: [email protected] islature and the judiciary have combined their efforts by All inquiries and notifications by practising attorneys and candi- date attorneys should be addressed to the relevant law society Sputting measures in place with the objective of broad- which, in turn, will notify the Law Society of SA. ening access to justice. The Legal Practice Bill is a product of Subscriptions: the continued collaboration between the three branches of General, and non-practising attorneys: R 762 p/a Retired attorneys and full-time law students: R 586 p/a State and ultimately a progressive measure taken to amplify Cover price: R 80 each access to justice by the ordinary citizen. Jacques Halbert Subscribers from African Postal Union­ countries (surface mail): R 1211 (VAT excl) discusses some of the aspects of the Bill aimed at promot- Overseas subscribers (surface mail): R 1 344.20 (VAT excl) ing access to justice. New subscriptions and orders: David Madonsela Tel: (012) 366 8800 • E-mail: [email protected] 40 Calculating legal costs: Changing the way we charge

© Copyright 2014: lause 35 of the Legal Practice Bill will lead to the close Law Society of South Africa 021-21-NPO Tel: (012) 366 8800 scrutiny of the charging of legal fees by attorneys and Cadvocates, as well as the criteria used for calculating them. Gerhard Buchner discusses alternate fee arrange- Member of The Audit Bureau of ments and value billing as an alternative method to hourly Circulations of Southern Africa rates.

DE REBUS – OCTOBER 2014 - 2 - EDITOR’S NOTE Where on the profession’s agenda – if at all – are the strategies to deal with challenges faced by female lawyers?

ociety in general and the legal Dunstan Mlambo noted this at the IAWJ ctober and November tradi- profession in particular, are not conference when he said: ‘Very compe- tionally sees the attorneys’ lacking in strong female role tent and able women practitioners are profession taking stock of models. forced to take up legal positions away Odevelopments that have im- Recently, however, serious from practice and in government due to pacted on it throughout the year. Five Sconcern has been raised by the Law So- the dictates of their personal environ- of the six LSSA constituent members – ciety of South Africa (LSSA) and other ments.’ the four statutory provincial law socie- organisations at the unwarranted and The Commission on Gender Equal- ties and the Black Lawyers Association scurrilous attacks that have been lev- ity (CGE) is conducting research on the – will be holding annual general meet- elled against Public Protector, advocate lack of gender transformation in the ju- ings during these two months, while Thuli Madonsela, particularly after the diciary, taking into account systemic is- the sixth, the National Association of release of her report ‘Secure in Com- sues in the profession, as the pool from Democratic Lawyers will hold its AGM fort’, and Pretoria High Court Judge which judges are drawn. The CGE indi- early next year. Thokozile Masipa following her judg- cates that the lack of transformation is Attorneys and candidate attorneys ment in the Oscar Pistorius matter (see not only applicable to permanent judi- are urged to attend these meetings as 22 of this issue). One wonders whether cial posts only, but it is also reflected not only is it an opportunity to touch the same level of criticism and insen- in the appointment of acting judges base with colleagues, it is also your sitive personal comment would have which, on the face of it, also seem to platform to raise concerns and ask your been generated had the incumbents favour men more than women. It has Council members for information and been male? noted that that gender transformation feedback. The profession is in the pro- In various news items in this issue, in the profession is not receiving prior- cess of systemic change with the Legal the challenges faced by female lawyers ity and reflects the slow pace of women Practice Bill looming, and ancillary mat- are raised repeatedly at a number of dif- representation and participation. ters that will arise from it, such as the ferent forums. Granted, there are those With the Judicial Service Commission change in the way attorneys charge fees that are of the view that female attor- interviews of candidates for the Bench (see also 40 of this issue), community neys and candidate attorneys do not re- this month, the dearth of suitable fe- service (see 37) and the uniform rules, quire ‘special’ treatment. But there is no male candidates will again be a talk- that will require serious attention. evidence that special treatment is what ing point in the media. In the past four These are also ideal forums to brain- female practitioners expect. However, years, the JSC has appointed 155 candi- storm implementable strategies that in the past few months the same con- dates as judges; 40 have been women will level the playing fields for women cerns have been echoed across various (see 10 of this issue). to participate fully in the profession platforms – at a session on the challeng- Of course, suitably qualified and ex- that they have chosen, but that sadly, es faced by female lawyers at the SADC perienced female candidates must be many are forced to abandon. Lawyers Association conference (see 18 available and willing to be interviewed of this issue), at the South African chap- by the JSC. But even before that stage, ter of the International Association of women must be available for acting ap- AGM venues Women Judges’ (IAWJ) conference (see pointments, and here the role of Judges and dates 6 of this issue), in a survey conducted President – with the assistance of prac- by the LSSA Gender Committee, as well titioners – is crucial in identifying and • 17 October 2014 as in a report published in September by nurturing appropriate candidates. KwaZulu-Natal Law Society the Foundation for Human Rights and But what is the profession itself do- Coastlands Hotel, Durban the Centre for Applied Legal Studies at ing? Is there a lack of vision or a lack the University of the Witwatersrand. of will to tackle the challenges head on? • 17 – 18 October 2014 The challenges faced by female law- The challenges faced by female law- Black Lawyers Association yers are startlingly the same throughout yers appear stuck in a catch 22 situa- Lagoon Beach Hotel, Cape Town the region and in small and large firms: tion – every August, around Womens’ The patriarchal nature of the profes- Day, the issues are canvassed and ven- • 30 – 31 October 2014 sion, sexual harassment; the pressures tilated at various forums and then ev- Law Society of the Free State created by the multifaceted care roles erything abates again until the confer- Lapenetta, Welkom that women are obliged to take – car- ences the following August. In addition, ing for children, parents and extended when they are discussed, it is at ‘wom- • 31 October – 1 November 2014 families – which need to be recognised en lawyers’ conferences’ and separate, Cape Law Society and properly acknowledged by their smaller, dedicated sessions attended Boardwalk Convention Centre, firms and workplaces; gender stereo- by female delegates. It is seldom in the Port Elizabeth typing in practice areas, as well as the plenary sessions at general meetings challenges in reaching leadership and where all practitioners – male and fe- • 8 November 2014 decision-making roles within law firms male alike – participate in charting the Law Society of the Northern and in the structures of the organised way forward. Provinces legal profession. We know what the problems are; what Sun City Gauteng High Court Judge President are the solutions?

DE REBUS – OCTOBER 2014 - 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.

The Legal Practice Bill: No said that it was not for the government be prepared to release my file and per- to act in accordance with the Constitu- mit the attorney to continue the matter consultation on clause 35 tion, but rather to test the parameters of on payment of my taxed attorney-and- the Constitution. client bill of costs. Your editor’s note in the July 2014 issue I trust that the organised legal profes- I undoubtedly recognise that the client of De Rebus (2014 (July) DR 3) has refer- sion will challenge clause 35 of the Legal has the inalienable right to be represent- ence. Practise Bill on the basis of a lack of con- ed by an attorney of his own choice and I have interacted with Portfolio Com- sultation and that it may contravene s 22 in whom he has confidence. However, by mittees (primarily that of Safety and Se- of the Constitution. the time my bill – which has to be pre- curity and subsequently the Police) on an pared – is taxed and I am paid, there will ongoing basis since 1997. Martin J Hood, attorney, be precious little time for the new attor- It appears to be a typical tactic of gov- Woodmead ney to acquaint himself with the matter, ernment to introduce amendments to brief counsel and handle the matter ap- proposed legislation at short notice and Ethical position when propriately. It occurs to me that clearly without consultation, particularly where it is not in the client’s bests interests at such amendments are going to be con- client terminates mandate this late stage for a new attorney to enter tentious and strongly opposed. I act for a client who was seriously in- the litigation. It seems to me that there Coupled with this, is a tendency of jured in a motor vehicle accident, in would be an ethical duty on both my- government, to publish draft legislation respect of his claim against the Road self and the new attorney to apprise the of a contentious nature over the Decem- Accident Fund (RAF). The trial has been client of the pitfalls he faces should he ber holiday period when less attention is set down for hearing in the High Court, change attorneys at this advanced stage given to legislation, until the period for Gauteng Division, Pretoria on 12 October and that it is not in his best interests consultation and discussion has passed. 2014. I am fully prepared for this trial to do so. If, on being apprised of these The manner in which clause 35 of the and have briefed counsel and experts. consequences, the client is insistent on Legal Practice Bill was introduced ap- Notices and reports have been timeously changing attorneys then he must suffer pears to be typical of this approach by filed and as matters presently stand, at the consequences of his choice. government. the time of writing, counsel and I are ac- I would be most interested to hear the Our current government appears to tively involved in trial preparation. viewpoint of colleagues on this issue. see the Constitution as an impediment Most unexpectedly and without prior and not as a vehicle for creating and en- Leslie Kobrin, attorney, warning, I have just received a letter hancing democracy. Johannesburg from another firm of attorneys intimat- I am reminded of the content of a ing that my client has terminated my • Readers wishing to respond to Leslie radio show I shared with an extremely mandate to act and has instructed that Kobrin can e-mail their responses to senior police official debating the then firm to continue the matter. My file of [email protected] Firearms Control Bill. That policeman papers has been requested. I would only

DE REBUS – OCTOBER 2014 - 4 - NEWS SADC stakeholders form coalition to lobby for restoration of a SADC Tribunal

takeholders have urged heads of state and government of Southern African Development Community (SADC) member states to reconsider their de- cision to suspend the SADC STribunal. They have also urged them to reconsider their decision to adopt a new protocol. This came during a roundtable discus- sion of stakeholders at the Centre for Hu- man Rights at the University of Pretoria. The discussion took place on 28 and 29 August 2014 where stakeholders called for the restoration of the SADC Tribunal. The objective of the round table was to discuss the implications of the adoption of a new protocol by the SADC Summit. Justices Makhambra Mkandawire, SADC Tribunal Registrar; The discussion was attended by dif- Ariranga Pillay, former President of the SADC Tribunal; and ferent stakeholders including former Isaac Mtambo, judge at the SADC Tribunal, at a SADC stakeholders judges and officials of the SADC Tribu- roundtable discussion on the implications of the adoption of nal; the East African Court of Justice, the a new protocol on the SADC Tribunal. Economic Community of Western Afri- can States (ECOWAS) Court of Justice; Of the 19 cases, 11 were against Zimba- were binding on member states. In May lawyers from private and academic prac- bwe. Eight of these cases were concern- 2011 the SADC Heads of State and Gov- tice and officials from the Department ing the expropriation of agricultural land ernment unanimously agreed to extend of Justice; the SADC Lawyers Associa- in Zimbabwe. the suspension of the Tribunal for one tion; the Law Society of South Africa; re- ‘The most prominent case was Mike more year, pending yet another report of searchers; and members of civil society. Campbell (Pvt) LTD and Others v Repub- the Attorneys General of the SADC mem- Background lic of Zimbabwe SADC (T) (unreported ber states. case no 2/2007, 28-11-2008) in which Mr ‘Further, the SADC Summit determined According to a statement by the round- Campbell and others successfully chal- that the Tribunal will not hear any more table participants SADC was established lenged Zimbabwe’s land policy and laws cases, whether new or existing and judg- in 1992 with economic growth and de- before the SADC Tribunal after meeting es whose terms were due to expire were velopment at the top of its agenda. Un- the exceptions to the exhaustion of lo- not reappointed. On 18 August 2012 the der articles 4 and 6 of the SADC Treaty, cal remedies rule. A majority of the Zim- Summit of Heads of State and Govern- the SADC objectives are to be achieved babwe’s white farmers were deprived of ment, the SADC’s supreme policy-mak- by adhering to equality, democracy, their right to compensation and access ing organ, suspended the work of the good governance, rule of law and – no- to justice after the expropriation of their Tribunal indefinitely and resolved that a tably – human rights. In pursuit of these agricultural land. The SADC Tribunal new protocol on the Tribunal should be objectives, SADC member states adopted found such acts by the Zimbabwean gov- negotiated and that its mandate should a protocol that established the SADC Tri- ernment to be discriminatory and con- be confined to inter-state disputes,’ the bunal which was inaugurated in Novem- trary to the SADC Treaty,’ the statement stakeholders stated. ber 2005. said. According to the statement, the SADC The Tribunal had jurisdiction over dis- According to the statement, the judg- Summit adopted the new protocol on 18 putes between states as well as between ments against Zimbabwe resulted in ef- August 2014. However, the protocol was natural or legal persons and states, sub- forts to cast suspicion over and do away not yet in force as only eight of the 15 ject to the requirement of the exhaustion with the Tribunal. These efforts culmi- member states had signed it. The new of local remedies and with the decisions nated in a decision by the SADC Summit protocol will only enter into force after of the Tribunal being binding on mem- to remove the right of individual access two-thirds of member states (ten states) ber states. to the Tribunal and in August 2010, the have ratified it. The SADC Summit also SADC Summit adopted a resolution to mandated the SADC Ministries of Justice Cases by the Tribunal suspend the Tribunal pending a review to propose a mechanism for the resolu- The statement notes that between 2007 of its role, functions and terms of refer- tion of pending cases and to report on and 2010 the Tribunal ruled on 19 cases ence by an independent consultant. this issue to the SADC Summit by August that included disputes between citizens The independent consultant reviewed 2015. and their governments, as well as cases the Tribunal and concluded it had been The stakeholders concluded that the between companies and governments. properly constituted and its decisions suspension of the Tribunal lacks legality,

DE REBUS – OCTOBER 2014 - 5 - NEWS inter alia, because the SADC Treaty does democratise SADC institutions, includ- coalition for the restoration of the Tri- not allow for suspension. ‘Moreover, the ing the SADC Secretariat; establish a bunal, comprising stakeholders in all SADC Summit did not act in accordance regional parliament with law-making SADC countries, to campaign against the with the Treaty’s own amendment proce- powers; and create a sub-regional court ratification of the new protocol and to dures. Therefore, the legality of the pur- with adequate jurisdiction accessible to explore and coordinate alternative strat- ported suspension of the Tribunal can be individuals; egies to restore individual access to the challenged,’ they said. • called on the relevant SADC organs and Tribunal and to strengthen democracy institutions to ensure that the process of and improve the rule of law within SADC. Resolutions establishing a mechanism for cases that • See also page 14. The round-table stakeholders – had been pending before the Tribunal is • urged SADC citizens to reject and pro- transparent and participatory; and test against the decisions of the Summit • called for the restoration of individual adopted from August 2010 to August access so that an authentic sub-regional 2014 regarding the Tribunal; court – the SADC Tribunal – would be • called on the SADC Heads of State and able to dispense justice to the people of Government and all institutions of SADC the region. immediately to embark on the revision The stakeholders resolved to collabo- Nomfundo Manyathi-Jele, of the SADC Treaty to strengthen and rate and support the establishment of a [email protected] Women and the judiciary

he South African chapter High Court, Dunstan Mlambo; former everyone that the key values of the Con- of the International Asso- Constitutional Court Justice, Yvonne stitution are ‘human dignity, the achieve- ciation of Women Judges Mokgoro; and former Justice Minister, ment of equality and the advancement of (SAC-IAWJ) held its national Bridgette Mabandla. human rights and freedoms’. conference from 8 to 10 Judge Mlambo said that what is topical August 2014 at the Univer- Mlambo: Some today is the slow pace of gender trans- Tsity of Pretoria. The SAC-IAWJ was also formation in the judiciary. He said: ‘I practitioners regard acting celebrating its ten-year anniversary. The surmise that the basis advanced for the theme of the conference was ‘reshaping appointments as ‘an act of call to fast track gender transformation women’s participation for gender equal- insolvency’ in the judiciary is that, 20 years into our ity in the South African judiciary.’ democracy, we have only one woman The people present at the event includ- Delivering the welcome address Judge head of court and generally the appoint- ed recently appointed Minister of Justice Mlambo spoke on behalf of the Gauteng ment of women judges has lagged mark- and Correctional Services, Michael Masu- Division of the High Court. He said that edly behind. This is so despite the fact tha; Minister in the Presidency responsi- he was going to be ‘brutally frank’ in the that women in general, and those who ble for Women, Susan Shabangu; Judge hope of enriching the gender transfor- enter legal practice, are more in number President of the Gauteng Division of the mation debate. Judge Mlambo reminded than their male counterparts. This is ac- cording to the latest statistics from the Law Society of South Africa (LSSA) in par- ticular.’ Judge Mlambo asked why gender transformation has lagged so far behind in the judiciary especially because the overarching injunction in the Constitu- tion is broad representativeness reflect- ing South Africa’s demographics. Judge Mlambo said that there were more than enough women legal profes- sionals practising at various levels either in private or public practice in the coun- try. Despite this depth of available ca- pacity, he added, the judiciary remained behind. Judge Mlambo noted: ‘Having been a head of court for close on four years this year, I am not persuaded that there is a “sinister reason” for this slow pace of gender transformation in the ju- The former and recently appointed presidents of the South African diciary. I consciously use the word sinis- chapter of the International Association of Women Judges, Judge of the ter to illustrate the fact that I have not Free State High Court, Connie Mocumie and Judge Mmaleshane Kgoele come across any scenario where it can from the North West High Court respectively. be stated that that there was a conscious stratagem to keep women out of the ju-

DE REBUS – OCTOBER 2014 - 6 - NEWS diciary. I hasten to concede that there for permanent appointment especially legal practice continues unabated. ‘It is may be isolated incidents pointed out to in the Gauteng Division due to the sheer a sore point to me to field these reports me, but those who are eloquent say one volumes of work the court deals with. from judges in my division and the re- swallow does not make a summer.’ Judge Mlambo went on to say that he sistance to adapting, I am told, is always Judge Mlambo said that it is a fact that is aware that there are women who have fierce.’ He added: ‘The strange phenom- not all suitable women candidates are never acted as judges whom others feel enon in these trends is that invariably available to take up either acting or per- are ready and are prepared to take up the state is one of the parties. In one in- manent positions due to commissions of acting appointments. However, he add- stance one of the white male silks lead- inquiry such as the Marikana and Arms ed: ‘Litigants want judges who will deal ing one team lodged a complaint to my Deal Commissions which ‘swallow up’ a with their matters expeditiously and office when one of my judges questioned sizeable number of women practition- without delay. For this reason it would the all-white male lineup of both legal ers who are suitable to take up acting be counterproductive to appoint women teams appearing before him. I mention appointments. He added that he finds it based on that criterion only especially this because this has a direct influence frustrating when women candidates do persons who have never engaged with on the women practitioners who are left not put their names on his list to take High Court litigation whether in argu- out of such litigation.’ up acting appointments. ‘It becomes a ment or as instructing attorneys. That According to Judge Mlambo, there lot more stressful when I have to chase engagement with High Court work is needs to be sensitivity to circumstances and cajole them to avail themselves. If I crucial as it prepares one for the task confronting women practitioners in pri- were to go only on the persons who avail of sitting as a judge and deciding these vate practice. He said that in most in- themselves, then I will be left with an all- matters.’ stances very competent and able women white lineup which is male dominated,’ Judge Mlambo pointed out that he had practitioners are forced to take up legal he said. encouraged judges in his division to take positions away from practice and in Judge Mlambo said that another rea- practitioners for mentoring stints in or- government due to the dictates of their son why there is a shortage of women der for them to get exposed to a judge’s personal environments. ‘I am aware of a judges on the Bench is because certain environment firsthand. He added that number of very competent women prac- practitioners regard accepting acting ap- this exposure would alleviate the lack titioners who deal on a daily basis with pointments as ‘an act of insolvency’ be- of engagement with High Court work. high level High Court litigation in their cause there are practitioners who make Also, the exposure had proven pivotal positions in government departments a lot of money in their practices and do in a number of instances in enabling in particular. However due to some pe- not readily agree to give that up. The those who had gone through the process culiar view that working in government consequence is that they are available to deal with the responsibility once ap- renders these practitioners executive for very short periods of rarely more pointed permanently. minded and therefore disqualified to be than two weeks per year in certain in- Judge Mlambo also spoke on what he appointed as judges, we are unable to stances. Judge Mlambo added that this regards as anti-transformation trends. appoint them. I disagree,’ he said. period is too short to prepare anyone He said that white male domination of Judge Mlambo went on to say that the

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DE REBUS – OCTOBER 2014 - 7 - NEWS sooner this issue is addressed, the better ernment’s commitment to a unified judi- it will be for the country’s jurisprudence ciary that subscribes to uniform norms as he knows of a number of practition- and standards that are aimed at guar- ers who have engaged with serious High anteeing judicial independence and the Court litigation locally and abroad, but rule of law. He added that this calls for whom the Judicial Services Commission the Magistrates Commission to be more is not at liberty to appoint due to the vigilant in its recruitment process as it existing constraint. ‘It is our loss as we lays a foundation for future judicial of- are unable to appoint practitioners espe- ficers. cially women, who have a rounded world Minister Masutha concluded by ac- view and who can enrich our jurispru- knowledging ‘the indelible contribution’ dence immensely’, he said. that the judiciary continues to make in Judge Mlambo noted that although the dispensing justice to citizens ‘under very judiciary had been transformed com- trying circumstances’. pared to the apartheid era, the gender He said: ‘Today there are no laws that front needed work. He added that heads exclude women from any career pursuit of court are always on the lookout for or life opportunities in the legal pro- ways to promote transformation. Justice Minister, Michael Masutha fession or elsewhere. My appeal to all He concluded by reminding the judges gave the keynote address at the women in the legal sorority is that, do that society’s expectations are that those South African chapter of the not drop the ball when appointed to the who head the judiciary should provide International Association of Women bench but strive to excel so as to quell effective leadership to ensure transfor- Judges conference in August. the perception that at times, as a coun- mation of the judiciary in all respects. try, we promote mediocrity thus com- promising quality of service to our peo- Minister: Gender parliament. With regard to the judiciary, ple. This criticism must not find a place transformation in the our statistics currently show that in our in our noble profession.’ 20 years of democracy 311 new judges judicial system were appointed. Of these, only 76 are A reflection of the past Minister Masutha said that judicial offic- women. The situation is more acute at 20 years ers needed the courage and resilience of the Supreme Court of Appeal where out the women of the calibre of Lillian Ngoyi, of 25 judges only seven are women while In her speech, Minister Susan Shabangu Helen Joseph, Rahima Moosa and Sophie the Constitutional Court has two women reflected on 20 years of democracy and Williams, among others, in order to fight judges in its 11-member panel,’ he said. the social context of South Africa’s jus- a different struggle, that of reversing ‘The limited number of women who tice system. She said that one way to the legacy of inequality and deprivation, advance to the Bench is attributed to the sum up the achievements of the last overcoming poverty and landlessness, low number of female legal practition- 20 years is to say that, with democracy, and uprooting crime and corruption. ers in comparison to their male coun- South African society has become ‘safe’ According to Minister Masutha, the ju- terparts. As at the end of 2013, women for the rule of law since neither apart- diciary’s gender transformation champi- made 1 841 of the total number of 5 708 heid nor colonial South Africa was ever a oned by the Constitution is amplified by practising advocates on the roll of advo- safe place for the rule of law to be prop- international and regional instruments cates. During the same time there were erly understood. and conventions that have been ratified less than 6 000 practising female attor- According to Minister Shabangu, in the by South Africa. He was of the view that neys out of a total of 22 500,’ he noted. absence of a just society and legitimate he believes that the Convention on the Minister Masutha noted that special laws, judges become part of the problem. Elimination of all Forms of Discrimina- attention was required to create oppor- She said that South Africa was also cel- tion against Women is the most signifi- tunities for aspirant judges and lawyers ebrating 60 years of the Women’s Char- cant. to pursue a career in the legal sector. He ter of 1954. The charter called for – Minister Masutha stated that the trans- added that the Legal Practice Bill as well • the empowerment of men and women formation of the judicial system entails as the State Attorney Amendment Bill 52 of all races, the right to vote and be elect- a broader concept of reform, which in- of 2013, which are currently being con- ed to all state bodies; cludes the – sidered by the President, are intended to • the right to full opportunities for em- • reorganisation and rationalisation of level the playing field. ‘The Legal Practice ployment with equal pay and possibili- the courts to align them with the Con- Bill in particular, aims to remove barri- ties of promotion in all spheres of work; stitution; ers to the practice of law for previously • equal pay for equal work; • transformation of the legal profession; disadvantaged individuals and thus • equal rights in relation to property, and widen the pool of lawyers both in the land rights, marriage and children; and • reform of the state legal services and Bar and side bar. On the other hand the • the removal of all laws and customs initiatives to improve the criminal and State Attorneys Amendment Bill will in- that denied women such equality, among the civil areas of the justice system. stitutionalise the preferential allocation others. He added that the judicial system will of state legal work to female and other ‘It further demanded paid maternity be impoverished if judges, practitioners previously disadvantaged practitioners. leave for women, childcare for working and women in general do not make their We are optimistic that the 75% target we mothers and free and compulsory educa- voices heard in the transformation dis- have set for ourselves for the briefing of tion for all South African children. The course. previously disadvantaged practitioners demands in the Women’s Charter were The Minister said that following the will widen the pool from which judges ultimately incorporated into the “Free- recent elections, parliament boasts a may be appointed,’ he explained. dom Charter” and used by the Women’s 45% representation of women, which Minister Masutha said that it was en- Coalition to lobby for their inclusion in is an increase from 42% in 2009. ‘This couraging that judges were increasingly the Interim Constitution of 1993,’ she ranks South Africa third in the world being appointed from the ranks of mag- said. in terms of representation of women in istrates. He said that this affirmed gov- The Minister added: ‘Accordingly, for

DE REBUS – OCTOBER 2014 - 8 - NEWS the law and its institutions to play a In addition, there are tomes and tomes meaningful role in the fulfilment of the of new legislation which have come from constitutional vision, there needs to be Parliament …’. He added that it is be- certain fundamental shifts. In my view, cause of these factors that continuing the key fundamental changes that need education is needed. to happen within law relate to systema- Judge Bosielo noted that providing ju- tising equality in all aspects of the law dicial training for lawyers would ensure and closing the gap between law and that all judges receive the same training justice.’ She added that a closer look at and are exposed to the same curricula. the two reveals their interconnectedness ‘Hopefully, this will result in our judges and symbiotic relationship. ‘If we accept sharing the same constitutional values equality as real as opposed to theoreti- and legal philosophy which will help cal enjoyment of all rights and freedoms, us to avoid producing conflicting judg- then justice is an element of equality. ments. The result will be judgments Furthermore, true or substantive justice which are clear and consistent with our is unimaginable without according equal Deputy Chief Justice constitutional values. To my mind, this consideration to all. The prerequisite for Dikgang Moseneke at the gala will help to engender and maintain the true or substantive justice is substantive dinner of the South African chapter confidence of the public in the judicial equality,’ she said. of the International Association system – something without which the Minister Shabangu said the legisla- of Women Judges which justice system will not be able to func- tive review process undertaken over the preceded its conference. tion efficiently and effectively. Needless past 20 years to address discrimination to state that the loss of confidence and against women has resulted in an un- trust by the public in the judicial system precedented body of laws on aspects who have to prove the existence of the is a serious threat to the rule of law and a marriage for many reasons, including including employment, property rights, recipe for lawlessness and anarchy – the getting their inheritance or share of the family law and the eradication of vio- nemesis of a constitutional democracy,’ estate’. lence against women. However, she said, he said. Minister Shabangu also highlighted the achievements are not without chal- According to Judge Bosielo, the deliv- unequal access to land as one of the lenges. ery of effective and efficient justice in a main key forms of economic inequality, She said that although there are laws country relies primarily on the abilities, which has dire consequences for women. aimed at curbing domestic violence, competence and knowledge of its judges, To conclude, Minister Shabangu said women continue to be subjected to vio- and for judges to be efficient, they have that, although unjust legislation against lence. ‘For example, many of the prob- to know the law. ‘However the reality is women generally had virtually disap- lems that the Domestic Violence Act 116 that the law, like human beings, is never peared, ‘the whole world remains patri- of 1998 sought to address persist. This static. It is dynamic. It grows, changes archal, with men dominating all aspects includes recidivism. In many instances and adapts to new circumstances as the of life – from the family to politics, busi- victims continue to endure abuse de- people change their lifestyles. It is only ness and the workplace, including the spite having secured protection orders. through a process of continuing judicial judiciary and the legal profession – that In some of these cases the abuse pro- education that we can keep pace and re- is why always before the Judicial Service gresses to murder or “intimate femi- main abreast of all developments in the Commission interviews, you will hear de- cide”.’ law and in society,’ he said. bates about women’s lack of experience In an attempt to address the incidence Judge Bosielo said that judges owe to be appointed as judges,’ she said. and prevalence of rape and sexual of- it to the people to keep themselves in- fences, the Criminal Law (Sexual Of- Continuing judicial formed and knowledgeable. He added fences and Related Matters) Amendment that this will enable judges to deal effec- Act 6 of 2012 was passed to improve education tively with the new challenges brought prosecution and conviction. ‘However, Supreme Court of Appeal Judge Ron- about by rapid cultural, sociological and the time it takes for rape and sexual of- nie Bosielo spoke on continuing judicial technological changes in people’s lives. fences cases to go to trial defeats the education and mentorship. He said that ‘This will enable us as judges to appreci- purpose.’ continuing education was imperative be- ate the society in which we operate; a ju- Minister Shabangu also noted that the cause, according to him, it had become diciary which will appreciate the impact Maintenance Act 99 of 1998 provides for impossible to keep pace with critical le- which its judgments have on the people; garnishee orders, attachment of emolu- gal developments. The only sure way for a judiciary which is not perceived to be ments and orders by default but that judges to keep pace with the develop- living in ivory towers, far removed from these provisions are, however, underu- ment of the law domestically and inter- the daily realities of the people it is sup- tilised. nationally was through continuing legal posed to serve; and a judiciary which She pointed out that the Recognition education. sees and uses the law as a potent tool for of Customary Marriages Act 120 of 1998 Judge Bosielo said: ‘In its bold and social transformation,’ he said. (RCMA) had been promulgated to recog- laudable efforts to translate the pious Judge Bosielo said that to be good nise and regulate customary marriages, words in our Constitution into reality judges, judges have to remain students but that the implementation of this Act for our people, our courts, in particular, of the law throughout their judicial ca- had a number of hurdles arising from the Constitutional Court has developed a reers. ‘After all, this is one of the essen- interpretation difficulties and a lack of veritable body of case law suffused with tial attributes of a good judge,’ he added. knowledge of the RCMA by public offi- constitutional values, adding to our new cials and the general public. constitutional jurisprudence. Our courts Equal representation of ‘Despite the absence of explicit sanc- have created a new and impressive juris- women tions for non-registration in the RCMA, prudence on inter alios, fair trial rights, there are many indirect sanctions for the death penalty, the rights of children; Tabeth Masengu, a researcher at the those who have not registered their the right to dignity, equality, education, Democratic Governance and Rights Unit customary marriages, especially women environment, housing, health etcetera. at the University of Cape Town, spoke on

DE REBUS – OCTOBER 2014 - 9 - NEWS equal representation of women at all lev- are women. She asked what happens to els in the judiciary. women attorney graduates (see 2014 Ms Masengu looked at the potential (Sept) DR 20). avenues for women after law school. She Speaking on advocates, Ms Masengu listed these as – said that pupillage was expensive and • prosecution; generally for the privileged few. She not- • articles of clerkship; ed that of the 2 571 advocates registered • pupillage; with the General Council of the Bar, 645 • academia; or 25% are women of which 35% are • legal advisers/researchers; or black. Ms Masengu said that as of April • magistracy. 2014, there were 451 senior counsel of Ms Masengu also looked at the poten- which 27 are women and nine are black. tial pools for judges. She said that these According to Ms Masengu, there are are – 1 711 magistrates in the country, 673 of • advocates, from which the most suc- them are women of which 64% are black. cessful candidates have emerged; Ms Masengu said that in the last four • the attorneys’ profession, from which Former Justice Minister, Bridgette years, 262 candidates were interviewed there has been a fair amount of appoint- Mabandla (right) and retired Con- by the JSC for 134 positions. Of these, ments; stitutional Court Justice, Yvonne 82 candidates or 31% were women. Ms • the magistracy, from which there has Mokgoro, were guests at the South Masengu pointed out that 155 candi- also been a fair number of appoint- African chapter of the International dates were successful; 40 of these were ments; and Association of Women Judges con- women. • academia, which has not been tapped ference held in Pretoria in August. into for the last ten years. Ms Masengu went on to give a few sta- tistics. Speaking on the attorneys’ pro- are 22 473 attorneys and that 8 301 or fession, Ms Masengu said that this was a 36% of them are women. Ms Masengu popular route for graduates as clerkship said that what is interesting about this Nomfundo Manyathi-Jele, is paid. She said that nationally, there fact is that 56% of candidate attorneys [email protected]

ICT and the profession

he Law Society of South Mr Boqwana gave the welcome ad- give them what they need?’ he asked. Africa (LSSA) held an in- dress. He said that the legal profession Mr Heyink stressed that information formation communication was changing rapidly and that it was in- security was imperative as confidential- technology (ICT) session on fluenced by advances in technology. He ity is a professional responsibility. He 15 August. The aim of the added that the use of social media must said that electronic signatures are criti- strategic session was to de- not compromise security. cal to attorneys as they are a ‘stamp’ Tvelop a holistic approach to ICT in the le- Mr Boqwana said that South Africa that states that the documents are what gal profession by looking at the interests must start thinking about e-filing and they are. Mr Heyink explained that ad- of the profession. serving documents electronically, as this vanced electronic signatures lock the The conference focused on the impact is where the country should be going. He documents. He concluded by saying that of ICT on the attorneys’ profession go- suggested that maybe the South African privacy was impossible without security. ing into the future, as well as the actions justice system should start with a pilot needed to be taken by the profession in project at the labour courts. Overview of legislation the next five years. Discussion topics included informa- Information security Mr Hughes gave an overview of legisla- tion security, privacy and confidential- tion, rules and codes affecting the use ity; social media and the profession; Speaking on information security Mr of ICT in legal services. He said that the legislation, rules and codes affecting the Heyink said that attorneys are custodi- pervasive reach of technology has an im- use of ICT within the attorney’s practice; ans of constitutional rights. He said that pact on legal practice and institutional as well as paperless practice and e-sig- the internet has changed everything, in- functioning. natures. cluding what we do on a daily basis; it He noted that judicial recognition of Speakers included co-chairperson of changes how we communicate, how busi- the impact of technology on law and the LSSA, Max Boqwana; attorney and nesses’ target markets, as well as the law society had already been given by South member of the LSSA’s e-law committee, due to new legislation being developed, African courts. For example, he said, in Brendan Hughes; attorney and chairper- such as laws dealing with cybercrime. CMC Woodworking Machinery (Pty) Ltd v son of the LSSA’s e-law committee, Gavin Mr Heyink added that the market was Pieter Odendaal Kitchens 2012 (5) SA 604 McLachlan; attorney and information se- changing and questioned whether South (KZD) KwaZulu-Natal High Court Judge curity consultant, Mark Heyink, and at- Africa’s legal profession was ready to Esther Steyn made history when she torney and media law consultant, Emma change with the times. ‘Do we under- approved service of court documents Sadleir. stand our market and are we ready to via Facebook. In her judgment, Steyn J

DE REBUS – OCTOBER 2014 - 10 - NEWS stated that ‘Changes in the technology has to be signed, the type of electronic of communication have increased expo- signature required; nentially and it is therefore not unrea- (c) the manner and format in which sonable to expect the law to recognise such electronic signature must be at- such changes’. (See also 2012 (Nov) DR tached to, incorporated in or otherwise 30 and 2012 (Oct) DR 47). associated with the data message; Mr Hughes said that lawyers needed to (d) the identity of or criteria that must adapt to technology because once cus- be met by any authentication service tomers have experienced a new and bet- provider used by the person filing the ter way of doing things, they no longer data message or that such authentica- tolerate any other way. tion service provider must be a preferred He quoted the example of the South authentication service provider; African Post Office being forced to adapt (e) the appropriate control processes to its own customers and introduce se- and procedures to ensure adequate in- cure electronic communications services tegrity, security and confidentiality of (including the provision of registered e- data messages or payments; and mail in the near future as provided for (f) any other requirements for data in s 19(4) of the Electronic Communica- messages or payments.’ Law Society of South Africa tions and Transactions Act 25 of 2002 Mr Hughes gave an overview of the Co-chairperson, Max Boqwana, (ECT Act)). court’s responses to technological giving a welcome address at the He said that public bodies had insti- changes. He said that following amend- LSSA information communication tutional power to introduce change as ments to the rules promulgated in 2012, technology strategic session at OR stated in ss 27 and 28 of the ECT Act r 19(3)(c) now provides that the defend- Tambo Airport on 15 August. which provides as follows – ant may request the consent of the plain- ‘27. Acceptance of electronic filing tiff to consent to the exchange or service and issuing of documents – Any public of documents and notices by e-mail. livery of a document, he said. body that, pursuant to any law ‘Rule 19(3)(d) now also provides that if According to Mr Hughes, there is a (a) accepts the filing of documents, or the plaintiff fails to provide its consent, need for the legal profession to adapt to requires that documents be created or the court may, on written application by technology. He said that the value of liti- retained; the defendant, grant such consent and gation compared to the net possible re- (b) issues any permit, licence or ap- on such terms as to costs as may be just sult against the time, risks and monetary proval; or and appropriate in the circumstances. costs involved were not on par. (c) provides for a manner of payment, Rule 4A(3) of the High Court Rules ex- Mr Hughes looked at the risks of not may, notwithstanding anything to the pressly provides that Chapter 3 Part 2 of adapting. He said: ‘Currently under contrary in such law – the ECT Act is applicable to service by e- South African law, the admissibility and/ (i) accept the filing of such documents, mail. However r 4A(5) also says that the or evidential weight of any document or the creation or retention of such doc- filing of originals with the registrar may that was generated, sent, received or uments in the form of data messages; not be done by e-mail,’ he said. stored by electronic means that is pro- (ii) issue such permit, licence or ap- Mr Hughes said that the Magistrate’s duced at court in paper format may be proval in the form of a data message; or Court Rules essentially mirror the provi- challenged on the basis that – (iii) make or receive payment in elec- sions of the High Court Rules. He added • the “original” was not produced in tronic form or by electronic means. that the only court rules that expressly terms of s 14 of the ECT Act; 28. Requirements may be specified – permit the filing of documents electroni- • the “best evidence” was not produced (1) In any case where a public body per- cally are the rules of the Supreme Court in terms of s 15(1)(b) of the ECT Act; and forms any of the functions referred to of Appeal, where r 4(1)(b) provides that • the “integrity” of the information was in section 27, such body may specify by documents may be submitted to the reg- not capable of passing assessment in notice in the Gazette – istrar electronically provided the ‘origi- terms of s 15(3) of the ECT Act.’ (a) the manner and format in which nal’ document is filed within ten days. He added that this significant risk the data messages must be filed, cre- This means that even in this case, e-filing arises for virtually every party to litiga- ated, retained or issued; simply interrupts running of time peri- tion because – (b) in cases where the data message ods and does not constitute formal de- • s 15(2) of the ECT Act provides that the

DE REBUS – OCTOBER 2014 - 11 - NEWS rules of evidence must not be applied advances in technology that genuinely so as to deny the admissibility of a data relate to competent performance of the message ‘if it is the best evidence that lawyer’s duties to a client; the person producing it could reason- • ensure that service providers and the ably be expected to obtain’; technology they use support the law- • s 15(3) of the ECT Act expressly pro- yer’s professional obligations; vides that the evidential weight of a data • conclude an agreement with the pro- message must be assessed by having re- vider/operator of the services, where the gard to, inter alia, the reliability of the information to be processed is personal manner in which the document was gen- information, to ensure that appropriate erated, stored or communicated and the security for the protection of personal reliability of the manner in which the in- information is established and main- tegrity of the document was maintained; tained; and and • implement and provide appropriate • s 14(2) of the ECT Act provides further information security for the information that the integrity of a data message must and communications processed by the be assessed by considering, inter alia, attorney. whether the information presented has remained complete and unaltered since E-signatures it was created. Cape Town attorney and member ‘Quite simply, neither of these assess- of the Law Society of South Africa’s Speaking on a paperless practice and ments can be conducted against paper e-law committee, Brendan Hughes e-signatures, Mr McLachlan said that print outs of electronic documents such speaking on legislation, rules paper-based signatures or traditional as e-mails,’ he said. and codes affecting the use of ICT signatures are readily understood in Mr Hughes indicated that the admis- in legal services at the LSSA commerce and law. He added that pa- sibility and evidential weight of data information communication per is an effective means of transmitting messages (including ordinary e-mails, at- technology strategic session information and that this methodology tached electronic files and electronically held recently. will remain in use for the foreseeable stored records) depends on an integrity future. assessment, which can be properly as- jectives and goals by providing required ‘That being said, in today’s tightly sessed only from an electronic copy of functionality, reduced expenditure and regulated legal and financial services the document containing file metadata, increased mobility and convenience. market, paper-based document retrieval, such as, information contained in the He added that the general consen- management and storage is time con- electronic copy that typically evidences sus internationally was that the use of suming and costly. Another obvious when, and by whom, an electronic docu- cloud computing architectures in legal negative is the ease with which a paper ment was originally created, whether it practice do not violate any ethical duty signature can be forged and it can, at was revised or edited, to whom it may (and in many instances may go some times, be difficult to conclusively prove have been sent and when it was received. way towards upholding them) provided a signature in a legal process,’ he said. ‘Internationally, discovery rules have that reasonable care is taken effectively Mr McLachlan said that there are two been amended to address these issues to minimise any risks to the confidenti- types of electronic signatures in South by catering for the proper discovery and ality and security of client information African law – the electronic signature production of electronic documents be- and client files. In other words, he said, and the advanced electronic signature. fore trial,’ he said. lawyers must take reasonable steps • Electronic signature: This is electronic Mr Hughes recommended that r 35(1) or reasonable protective measures to data that the sender intends to serve (a)(b) of the the uniform rules of court minimise any risks to the confidential- as a signature. As with the traditional dealing with the discovery, inspection ity and security of client information. He method of signature, this can be done in and production of documents, should added that lawyers should exercise due any number of ways – typing your name read: diligence before utilising a third-party at the end of an e-mail, for example, will ‘(a) such documents and tape record- service provider for purposes of storing serve as an electronic signature. ings in his possession or that of his or processing confidential information • Advanced electronic signature: This is agent other than the documents and offsite. an electronic signature, the provider of tape recordings mentioned in paragraph which has been accredited by the accred- (b) and the electronic format, if any, in Duties of attorneys itation authority in terms of the provi- which any such documents and tape re- According to Mr Hughes, the general eth- sions of the ECT Act. In its accreditation cordings exist.’ ical duties of an attorney relating to the the provider must meet globally accept- And 35(6) should read: use of ICT and cloud computing include ed security in security encryption and ‘(6) Any party may at any time by no- to – authentication standards and is subject tice as near as may be in accordance with • understand and guard against the to an annual audit to ensure that these Form 13 of the First Schedule require any risks inherent in the cloud by remaining standards are maintained. party who has made discovery to make aware of how and where data is stored Mr McLachlan said that there were available for inspection any documents and what the service agreement says, only two accredited providers of ad- or tape recordings disclosed in terms of namely, the duty of competence; vanced electronic signatures at the time subrules (2) and (3) and the electronic • keep abreast of changes in the law and of the strategic session – the South Afri- format, if any, in which such documents its practice, including the benefits and can Post Office and Lawtrust (Pty) Lim- or tape recordings are to be made avail- risks associated with relevant technol- ited. able. Such notice shall… .’ ogy; • have a reasonable understanding of Social media Cloud computing technology and using it, or seek assis- Ms Sadleir spoke on social media and According to Mr Hughes cloud comput- tance from others who have the neces- risks for the profession. She highlight- ing offers flexible, affordable technology sary proficiency; ed recent case law involving employees that directly addresses a business’s ob- • keep abreast of, and understand, any being fired or getting into trouble with

DE REBUS – OCTOBER 2014 - 12 - NEWS Shaun Barns wins SALRC 10th anniversary essay competition

haun Barns has come up tops in the 2013 Ismail Mahomed Law Emma Sadleir speaking on social Reform Essay Competition. This media and its risks for the legal was announced at the awards cer- profession at the LSSA information S emony held by the South African Law Re- communication technology session form Commission (SALRC) in Centurion on 15 August. on 5 September 2014. The ceremony also their employers for their posts on social commemorated the ten-year existence of media platforms such as Facebook. the competition. Ms Sadleir urged judges to sign up on Speakers at the ceremony included The winner and runners up of the social media websites. ‘How can judges Justice Minister Michael Masutha; Judge Ismail Mahomed Law Reform Essay decide on matters dealing with Face- of the Supreme Court of Appeal and Competition Steven Stuart-Steer, book, for example, if they are not aware SALRC chairperson, Mandisa Maya; and Shaun Barns (winner), Colette of what goes on on Facebook or how to South Gauteng High Court Judge and Ashton and David Houze. Nathan use it?’ she asked. vice chairperson of the SALRC, Jodi Kol- Sarkas was absent. Ms Sadleir noted that there are no lapen. guidelines on tweeting in court, except Shaun Barns (24) who studied law at when. He added that he would also like in S v Kotze and Others (GNP) (unreport- the University of Cape Town told De to study further and would like to work ed case (C119/12, 15-7-2013) (Bam AJ) Rebus that he entered the competition on the paper that he submitted for the – the Modimolle case – where tweeting because it is a prestigious one. He said competition. ‘A lot of my essay was on was banned. She noted that these days he felt humbled by winning. He noted: ‘I Canadian jurisprudence. I would like to all you need to know is which journalists think that it is amazing that something go to the US as they have a unique take are in court covering a certain case, and that I wrote was given recognition and on damages as compared to the rest of the hashtag they are using, to be able to that it matched the spirit of the late the world,’ he said. follow court proceedings as if you were Chief Justice Mahomed.’ Mr Barns would like to do a masters in court yourself. His essay titled ‘Constitutional dam- in law focusing on constitutional law and Ms Sadleir warned delegates to avoid ages: a call for the development of a jurisprudence. tweeting when angry, drunk or emotion- framework in South Africa’ explored The runners up in the 2013 competi- al. ‘Once you tweet, that is it; it is out whether the doctrine of vicarious liabil- tion were Colette Ashton from the Uni- there. Even if you delete it, people usual- ity adequately fulfills the positive duties versity of Pretoria; David Houze from the ly retweet so quickly, someone is bound placed on the state by the Constitution. University of Witwatersrand; as well as to read your tweet,’ she said, adding that More specifically, whether vicarious lia- Nathan Sarkas and Steven Stuart-Steer the disclaimer which reads ‘I tweet in my bility in delict sufficiently protects the from the University of Cape Town. personal capacity’ is not a magic wand rights of citizens where institutional According to the SALRC, the competi- that gets one out of trouble for ‘wrong’ failures in the South African Police Ser- tion is named in honour of the late Chief tweets. vice have resulted in physical injury to Justice Mahomed and it aims to encour- Ms Sadleir highlighted the fact that as private persons. ‘My intention when writ- age and incentivise critical legal writing long as your profile indicates where you ing the paper was to identify some chal- by students, while generating new and work, you cannot distance yourself from lenges legal reform faces in this com- innovative ideas for law reform. your employer in your tweets. plex space where the public and private The initiative also seeks to encourage She concluded by making a few recom- spheres overlap, and further to provide legal scholarship and dialogue on the mendations for the legal profession: a viable alternative to vicarious liability link between law reform, human rights • Guidelines on social media for legal centred squarely within constitution- and the rule of law. Essays could be on practitioners. * al law, namely constitutional damages. Lastly, I used Canadian jurisprudence any topic relating to the modernisation, • A social media policy.* as a comparator to demonstrate how a improvement, development or reform of A policy or rules on social media as • framework for constitutional damages any aspect, area or branch of South Af- evidence. has been developed in foreign jurisdic- rican law. • Guidelines on tweeting from court. tions,’ he said. The winner won a R20 000 voucher. • Social media training for judges. After completing his studies, Mr Barns The four runners up each won R10 000 did his articles at a law firm in Cape vouchers and their supervising lecturers *The LSSA’s guideline and draft social Town for five months but resigned for won R2 500. media policy for law firms can be ac- personal family reason. ‘To keep myself A book – published by sponsors, Juta cessed on the LSSA website at www.LSSA. busy I started two companies. The one Law – containing all winning essays since org.za under ‘Resources for attorneys’. helps vendors make furniture out of re- inception of the competition in 1999 cycled goods, and the other one is close- until 2013 was launched at the awards • See also 2013 (April) DR 7; 2013 (Jan/ ly related, it formalises informal traders ceremony and presented to all the com- Feb) DR 17 and see page 28 of this issue. in the city of Cape Town,’ he said. petition alumni. When asked whether he would con- Nomfundo Manyathi-Jele, Nomfundo Manyathi-Jele, [email protected] sider going into practice, Mr Barns said that he would like to but he is not sure [email protected]

DE REBUS – OCTOBER 2014 - 13 - NEWS SADC lawyers urged to monitor accountability, transparency and implementation Chissano: Africa not short of ideas; but a serious problem with implementation

pening the 15th confer- ence of the SADC Lawyers Association (SADC LA) at Victoria Falls, Zimbabwe in August, the outgoing President of the SADC LA, OZambian lawyer Kondwa Sakala-Chibiya said the conference theme of ‘Strength- ening the Rule of Law and Good Gov- ernance in the SADC Region: A Call for Transparent and Accountable Leader- ship’ was relevant at a time when many Southern African Development Commu- nity (SADC) countries were making ef- forts to create laws and institutions that promote transparency and accountabil- ity, while at the same time, making ef- forts to connect citizens with their gov- ernments. ‘There can be no transparent and accountable leadership without the people of our respective countries hold- ing our leaders to account. It is incum- bent on all of us to participate in the gov- ernance of our countries to ensure that Former Mozambican President Joaquim Chissano delivered the opening we get the leaders we deserve,’ she said. address at the SADC LA conference and annual general meeting at Victoria Ms Sakala-Chibiya stressed that al- Falls in August. He said: ‘I challenge the SADC Lawyers Association to make though positive strides were being made its contribution in the campaign to ensure the drafting of model laws and at national level, lawyers in the region normative aspects for transparent and accountable leadership. Constructive remained concerned about the lack of criticisms work better with constructive dialogue and guidelines.’ To the right transparency and accountability and the is session chairperson Max Boqwana, who is a member of the Executive of the failure by SADC governments, the SADC SADC LA and Co-chairperson of the Law Society of South Africa. Summit, the SADC Council of Ministers and other SADC organs to engage and involve the citizens of the region in key Ms Sakala-Chibiya added that the ‘I want to say to you Minister, the issue decision-making processes. ‘The sus- SADC LA lawyers were saddened by de- of protection of the rule of law and up- pension of the SADC Tribunal and sub- velopments in Swaziland, where their holding of human rights, is a matter dear sequent decision-making processes on colleague and human rights defender, and close to the hearts of lawyers. … The the issue are a case in point. As we have Thulani Maseko and journalist Bheki absence of the rule of law makes lawyers said at every SADCLA conference since Makhubu had been sentenced to two and the courts useless. Our intentions the suspension of the Tribunal in 2010, years’ imprisonment for alleged con- have in the past been misconstrued be- as the legal profession in the region we tempt of court in July, after spending cause of this. The LSZ has in the past remain concerned that the Tribunal was four months in pre-trial detention (see been labelled a political party because suspended in the manner that it was, de- 2014 (Sept) DR 15; 2014 (Aug) DR 16 and of this. Some of my predecessors had to spite the clear negative implications of (May) DR 15). ‘There can be no transpar- sacrifice body and limb to preserve the that decision on issues of access to jus- ent and accountable leadership where LSZ’s integrity and independence. Allow tice, independence of the judiciary and impunity reigns,’ she noted. me to dispel the misconception.’ respect for the rule of law.’ She added: Listing the names of ‘lawyers of our ‘The SADC LA has, with great sadness Calls for abolition of death liberation’, Mr Mhishi noted: ‘Those law- and disappointment, learnt of the sign- yers fought tenaciously against injus- ing of a new protocol to the Tribunal penalty in Zimbabwe tice and the trampling of human rights. which limits the jurisdiction of the Tri- Law Society of Zimbabwe (LSZ) President Just as those lawyers sought to remind bunal to settling disputes between state Lloyd Mhishi welcomed delegates to Zim- the regime then to restore our people’s parties under the SADC Treaty. It is re- babwe and then went on to address his rights, we expect you not to frown when grettable that this Protocol was signed opening remarks to Zimbabwean Minis- we, who came after you, remind you to without the involvement of the people of ter of Justice, Legal and Parliamentary stick to the good ideals that you brought the region.’ (See page 5 of this issue.) Affairs, Emmerson Mnangagwa. He said: through the barrel of the gun. After all

DE REBUS – OCTOBER 2014 - 14 - NEWS

continue to campaign for the abolition politics is essential because the institu- of the death penalty because I do not tions that govern our lives should be rep- ‘Even before the ink gets dry. believe in it,’ he stated. Referring to the resentative of the population as a whole. I can see that you [lawyers] current inmates who had been sentenced Adequate representation of women is are on the confrontational to death, the Minister said he would not necessary to legitimise our political sys- be signing the warrants for their execu- tem and make it more likely that issues path. Good leaders take the tion. of particular importance to women will nation where the nation In referring to the conference theme in be addressed.’ his prepared address, the Minister noted wants to go, but great that the SADC region had made com- Chissano: Constructive leaders take the nation where mendable progress in prioritising good criticisms work better with it ought to go. In SADC we governance. Under this priority area, the region hoped to achieve – constructive dialogue and have great leaders.’ • improved justice delivery and the rule guidelines of law; Former President of Mozambique and • enhanced accountability in the man- recipient of the 2007 Ibrahim Prize for agement of public resources and service Achievement in African Leadership, what is wrong with what we say? We are delivery; Joaquim Chissano, prefaced his keynote indeed on the same side because we say, enhanced participation in democratic address to the 15th conference of the dear leaders, create laws for the country, • governance; and SADC LA by emphasising the point that but then go on to respect them!’ Africa’s political landscape was chang- He stressed that the LSZ urged the • strengthened mechanisms for peace ing for the better. ‘We as Africans should Minister to ensure that the death penalty building and for the prevention, manage- claim the credit and be proud of these is struck from the statute books of Zim- ment and resolution of conflict. momentous achievements. We have babwe. The Minister said crucial strides to- moved from one-party democracy to He went on to call for the Minister’s wards this goal had been made recent- multi-party democracy; from life presi- assistance for the following: ly in Zimbabwe with the adoption of a new Constitution which had ushered dency to tenure presidency; from un- • Lawyers must not be arrested merely in a number of progressive provisions. constitutional changes of government to for doing their work. A recent judgment The Constitution now goes beyond civil democratic changes of government; and of the Zimbabwean Supreme Court ex- and political rights and provides for an from mediocrity to meritocracy.’ plained why lawyers must fight tena- expanded Bill of Rights incorporating He added that the economic landscape ciously for the rights of their clients. socio-economic, cultural and environ- had also changed drastically. ‘Africa is They must not be arrested for doing so. mental rights as well as the protection considered to have some of the fastest • Everyone must be equal before the law. of vulnerable groups of society. ‘As law- growing economies in the world. With • Court orders must be obeyed. yers, we have a sacred duty to participate changing political and economic land- • Judicial independence must be respect­ actively towards the actualisation of the scapes new legal requirements to pro- ed. This includes attending to the wel- pledges of democracy that are enshrined mote democracy and good governance fare and remuneration of judges so that in our Constitutions, but let me also has- are being re-enforced and sustained.’ this does not interfere with this inde- ten to add that in this endeavour, we are In his keynote address, President pendence. required to conduct our work with the Chissano pointed out that Africa had • Zimbabwe has a new Constitution that dignity, discipline and decorum that is been through a period of protracted has an expanded Bill of Rights. There befitting of our profession.’ intra-state conflicts during which it was must be adherence to the Constitution He added that the SADC LA could recognised that the rule of law was an and a speedy alignment of the laws to be instrumental in facilitating the par- important tool for promoting peace, se- the new supreme law. ‘I need to confirm ticipation of citizens in democratic pro- curity and stability and for building a that you have opened your door wide for cesses and in the way public and local democratic society. The struggle against cooperation by Zimbabwean lawyers in authorities are run to ensure account- colonialism and white minority regimes this regard. We will, in the next few days, ability and more effective and efficient was a struggle against the violation of be seeking your audience to present to service delivery. He noted: ‘Some of our human and peoples’ rights. you the first model bill that our mem- public institutions in the sub-region are He noted: ‘One could, therefore, argue bers have come up with in an effort to performing poorly and the scourge of that the wars of liberation were just wars assist with the process,’ he noted. corruption is rife. This can be partly at- against colonialism and the denial of ba- Deviating from his written opening ad- tributed to weak monitoring and evalua- sic human rights including the right to dress, Mr Mnangagwa referred briefly to tion systems, and points to the need for freedom of association as well as free- the SADC Tribunal and to the issue of results-based management and account- dom of speech. There is no doubt that the death penalty. able service delivery in the public sector under colonialism there was no recogni- On the SADC Tribunal Protocol which management systems.’ tion of the fact that human beings are had been signed days before, the Minis- The Minister highlighted the issue inviolable. Equally, there was no recogni- ter noted: ‘Even before the ink gets dry. of the representation of women in key tion of the fact that every human being is I can see that you [lawyers] are on the decision-making positions. ‘Women are entitled to respect for his or her life and confrontational path. Good leaders take still greatly under-represented as elect- integrity of his or her person. As lawyers the nation where the nation wants to go, ed officials and in the vast majority of you all know that no one may be arbitrar- but great leaders take the nation where political institutions. Even though there ily deprived of this right. But, colonial- it ought to go. In SADC we have great has been some progress in the participa- ism deprived most of the African people leaders.’ tion of women in national governance in of most of their basic human rights.’ As regards the death penalty, he the sub-region, it remains below that re- He added that the leadership in African pointed out that at independence Zim- quired by SADC. Women still suffer from countries after independence recognised babwe had nine offences that attracted legally or culturally embedded discrimi- the centrality of promoting human and the death penalty. Now, under the new nation at the social, political and eco- peoples’ rights and respect for the rule Constitution, there was only one. ‘I will nomic levels. Women’s involvement in of law.

DE REBUS – OCTOBER 2014 - 15 - NEWS

President Chissano noted that the Af- demonstrate visionary capacity to antici- rican continent had come a long way in pate problems and solve them with the embracing democracy and democratic ‘Through democratic values least impact on the people.’ values as a way of building good govern- and principles it was possible • Peace and stability are the building ance and ensuring respect for the rule of to promote the notion that blocks of sustainable development. law. He said: ‘Multiparty democracy pro- there was life after presidency ‘There cannot be peace without econom- vided the opportunity for rotation and ic development and, in turn, peace with- change in leadership. Through democrat- and that life-presidency out economic development is unsustain- ic values and principles it was possible violated the basic rights of able. We need stable governments led to promote the notion that there was life a people to choose their own by a transparent and accountable lead- after presidency and that life-presidency ership, based on democratic political violated the basic rights of a people to leaders through elections.’ succession with fixed presidential term choose their own leaders through elec- limits, within the framework of competi- tions. Since then elections have become tive party and electoral politics and the so far adopted on governance and lead- common as Africa goes through a series periodic holding of free fair and credible ership and make the current leadership of elections on the continent every year. elections, managed by independent elec- a mockery of the future. We have made We can say that democracy has taken toral bodies recognized under the Con- some significant progress in promoting root on the continent and good govern- stitution.’ good governance and accountable as ance is evolving within the context of He challenged the SADC LA to contrib- well as transparent leadership, but we democratic values and principles.’ ute to the campaign to ensure the draft- need to do more. There is no doubt that Having provided the background to ing of model laws and normative aspects some countries have moved faster than Africa’s efforts in promoting the rule of for transparent and accountable leader- others essentially because they had in law, democracy and good governance, ship. ‘Constructive criticisms works bet- place the enabling political environment and outlining a number of declarations ter with constructive dialogue and guide- and well-articulated legal frameworks adopted by African leaders to promote lines,’ he concluded. these, the former President went on to and established norms.’ share his views on how best to strength- President Chissano noted some as- From human rights to law pects essential for the enhancement of en the rule of law and good governance firm management in the SADC region on the basis of trans- transparent and accountable leadership: parent and accountable leadership. ‘Af- • There was a necessity to uphold the The official communiqué issued by the rica is not short of ideas, but there is a commitments that are made. ‘It does SADC LA after the conference outlined serious problem in implementing some not make sense to adopt declarations discussions and resolutions taken dur- of the decisions either because of a lack that we do not have the necessary will to ing the two-day conference: of funding or simply political will.’ implement. This is why I would propose Generally, conference delegates – At continental level, President Chis­ the establishment of a follow-up, moni- • acknowledged the progress made in sano said he was encouraged by the toring and implementation mechanism the region in promoting accountable and fact that the African Union Summit in to ensure the enhancement of transpar- transparent leadership, but highlighted Malabo, Equatorial Guinea in June this ent and accountable leadership. It is not gaps that still exist in electoral systems year, had adopted amendments to the enough to adopt the declaration with- and processes, as well as in combating protocol establishing the Pan African out such an enforcement mechanism corruption and corrupt practices; Parliament (PAP), gradually moving the in place to ensure its implementation. I • recognised that constructive dialogue PAP from advisory to legislative func- challenge the SADC LA to establish the and engagements between lawyers, the tions. ‘This strategic shift may allow necessary measures to raise awareness judiciary, the legislature and govern- for the drafting of model laws and the about the need for greater transparency ments at national and regional level is strengthening capacity of the PAP to ad- and accountability in leadership.’ critical in creating good relations for the dress normative issues effectively. I am • The first responsibility of a transparent benefit of the citizens of the SADC re- convinced that the PAP will require the and accountable leadership is to protect gion; support of the SADC LA to support the its citizens’ rights and to avoid a relapse • recognised the role of the legal profes- development of model laws and the har- into authoritarian rule. ‘We need, there- sion in promoting regional integration monisation of laws within the SADC and fore, to redefine citizenship informed by through citizen engagement and ensur- in Africa,’ he said. commitment to a theory of citizenship ing that the citizens of SADC – and in- ‘The only alternative to transparent that guarantees individual rights, and to deed the rest of the African continent and accountable leadership is transpar- restructure and accommodate fractured – know each other in order to promote ent and accountable leadership. There is citizenship rights asserted by exclusion inter-regional and inter-African trade, no other option,’ he stressed. and marginalisation of minority groups cooperation and relationships; He noted that the objective of the Af- and communities. We also need to incul- • emphasised the need by SADC govern- rican Charter on Democracy, Elections cate a culture of tolerance and respect ments to move away from authoritar- and Governance was clearly to provide for divergent views.’ ian rule and to tolerate divergent views latitude for the strengthening of the rule • The Constitution must be respected as while consulting citizens on key regional of law and good governance, and if these a legal framework that serves as a guide integration issues; are well implemented, they would no to undertake a number of actions to en- • noted that the centering of regional doubt bring about the required transpar- sure the rights of individuals as citizens. conversations on cooperation and devel- ent and accountable leadership. Howev- ‘The people are the barometer for meas- opment as opposed to analysis of con- er, President Chissano stressed, institu- uring good governance and for award- flicts was an indication of a region that is tions such as the SADC LA were needed ing transparent and accountable leader- more at peace with itself and a political to support the efforts aimed at enhanc- ship. Leadership is about being able to landscape that is changing for the bet- ing transparency and accountability. ‘If address the concerns of the people and ter; and there are no checks and balances, we are to anticipate corrective measures in the • noted further that Africa is not short of likely to divert from established norms event things go wrong. This is why trans- ideas but lacks the effective implemen- provided in all the declarations we have parent and accountable leaders must tation of ideas; hence the need for the

DE REBUS – OCTOBER 2014 - 16 - NEWS creation of regional strategies for imple- Media: A need to balance Delegates also noted that, where cor- mentation of laws and policies as well as ruption is prevalent within the judiciary, the monitoring and evaluation of such state regulation and self- strategies are required to address this implementation. regulation corruption. Following the three plenary and five As regards the independence of the In the session focusing on the role of the parallel sessions that were held, the judiciary in the SADC region, delegates media in strengthening rule of law, good SADC LA summarised the outcomes of noted that weak or corrupt judiciaries governance and accountability, lawyers each session as follows: are a hindrance to social and economic highlighted the need for mechanisms development. Strengthening the judici- to increase public access to information The promotion of human ary is a pre-requisite to upholding the held by the state and state-owned enter- rule of law and maintaining the balance rights – engage on the prises. while promoting the separation of pow- It was noted that – SADC Tribunal ers as enshrined in national constitu- lawyers must work closely with media On the promotion of human rights, and • tions. practitioners to ensure that citizens en- taking into account that the conference Besides the importance of an inde- joy the rights enshrined in national con- took place in Zimbabwe, delegates noted pendent judiciary, it was emphasised stitutions; and that the legal profession in Zimbabwe – that the independence of the Judicial and the SADC region – must work with • there is need to balance the issue of Service Commission is critical in main- the Minister of Justice of Zimbabwe and state regulation of and self-regulation taining that independence – and politi- the Government of Zimbabwe in ensur- by the media, at the same time ensuring cal will is important in maintaining the ing that the death penalty is totally re- that media practitioners carry out their independence of both. In addition, the moved from the statute books follow- work professionally and ethically. remuneration and conditions of service ing progress that has been made in the As regards the new Constitution of of judges must be such that they are not country in limiting the application of the Zimbabwe, it was commended for pro- subject to manipulation or used to un- death penalty. tecting journalists and media practi- dermine the independence of the judici- It was also noted that the 2013 Con- tioners in the country, but Zimbabwean ary. stitution of Zimbabwe should be used to lawyers stressed the need for media laws better the rights of Zimbabwean citizens. to be aligned with the new Constitution, Law firm management: Generally in the region, the SADC LA noting that the right to freedom of ex- African law firms must and its constituent members must facili- pression is not primarily for the benefit tate public participation in democratic of the journalist but for the benefit of prepare to be self- processes and in local governance with a members of the public. sufficient in the future focus on effective service delivery at the Fighting corruption and The session on law firm management local and municipal level. The inclusion covered presentations on the African le- of women in decision-making processes promoting accountability gal market, the need to upskill African and key leadership positions is critical firms so as to create a critical mass of for the advancement and development It was noted that if all the money that substantial African business law firms; of the SADC region. is lost through corruption and illicit fi- the need to meet client demands as Af- The legal profession in the SADC re- nancial flows were channelled towards rican economies grow and diversify; as gion must continue to engage on the development, Africa would not need any well building deeper knowledge and al- SADC Tribunal issue to ensure the crea- foreign aid. As such it is necessary to – liances. tion of an institution that meets the ex- • fully implement the SADC anti-corrup- Delegates concluded that there was pectations of SADC citizens. tion protocol and other international a need to leverage the relationships be- anti-corruption instruments, including tween African law firms and the big in- Transparent and account- the establishment of institutions to fight ternational law firms in order to grow able leadership: Create a corruption; and the work of African lawyers and law • establish fully functional, fully funded, firms. model law for monitoring independent and effective anti-corrup- It was agreed that citizen engagement tion commissions at national level. was necessary in order to hold leaders These must be complemented by accountable and promote transparency strong and independent judiciaries, legal ‘... to develop a substantial in governance. Lawyers must participate frameworks and other institutions, all of mass of African business in knowledge-sharing programmes with which must be coordinated to ensure ef- the rest of the citizenry on the laws that fective implementation. law firms ... for this to citizens can utilise for their protection It was noted that research has shown happen, African law firms and institutions that citizens can use to that lawyers are involved in corruption, must evolve so that they can increase public participation in decision with 95 jurisdictions in the world citing making. corruption within the legal profession as compete on the global Lawyers must – an issue of concern. Lawyers are exposed platform. This evolution • work with Pan-African institutions to corruption when they act as interme- must be undertaken with such as the PAP to create a model law on diaries in international commercial and transparency and accountability for the investment transactions. In that regard the realisation that African continent; and law societies must provide training, change is uncomfortable • help in putting in place monitoring and strategies and standards in anti-corrup- and they must, therefore, evaluation mechanisms to ensure the tion, and law firms must have anti-cor- be prepared for implementation of transparency and ac- ruption strategies and policies as well as countability laws, programmes and com- focusing on due diligence when dealing such change.’ mitments. with international clients.

DE REBUS – OCTOBER 2014 - 17 - NEWS

The law firm panel:

A plenary session at the SADC LA con- ference looked at how law firms and lawyers in the SADC region can ade- quately meet the increasingly demand- ing needs of clients, both local and in- ternational, as African economies grow and diversify. The session was sponsored by the International Bar Association (IBA) Law Firm Management Committee. Speakers included, IBA Human Rights Institute chairperson, Zimbabwean From left, IBA Human Rights Institute chairperson, Zimbabwean lawyer lawyer Sternford Moyo, who chaired Sternford Moyo; Webber Wentzel partner Owen Tobias; London-based law the session; Webber Wentzel partner firm consultant Rob Millard; Pretoria chartered accountant and trainer Owen Tobias, who dealt with different Vincent Faris; and Zambian lawyer Charles Mkokweza. strategies adopted by South African law firms to service new clients in Af- rican jurisdictions; London-based law not pictured, were Tito Byenkya, CEO Mr Millard noted: ‘In order for Africa firm consultant Rob Millard analysed of the East African Law Society, who to progress from its political freedom the African legal market; Pretoria char- also looked at meeting increasing client to its economic freedom, a critical tered accountant and trainer Vincent needs amidst growth and diversifica- mass of substantial African business Faris outlined how a successful law tion from an East African perspective, law firms is required, that can deliv- firm manages client needs and expec- and German lawyer, Herman Knott – Co- er teams of African lawyers who can tations; and Zambian lawyer Charles chairperson of the IBA Law Firm Manage- competently advise large national and Mkokweza looked at meeting client ment Committee – focused on building international clients on solving their demands as African economies grow deeper knowledge and alliances with most important, difficult legal chal- and diversify. Also on the panel, but specialised attorneys. lenges in Africa.’

Also, there was a need: that young lawyers stay in the profes- to international law firms, as African law • to develop African capital markets and sion and contribute effectively towards firms have and can have the required ex- to develop a substantial mass of African its development; pertise. There was a need to develop the business law firms. In order for this to • to revise legal and policy regulating expertise in order to be self-sufficient in happen, African law firms must evolve frameworks for the legal profession to the future. so that they can compete on the global allow for innovation and competition platform. This evolution must be under- by balancing the regulatory frameworks Women in the legal taken with the realisation that change is with the realities of the modern world, profession: A luta continua uncomfortable and they must, therefore, where information has become readily be prepared for such change. available. Liberalisation of trade and pro- It was noted that women found it in- creasingly difficult to reach the upper • to put in place measures to ensure fessional services must be balanced with that regional trade in professional ser- the growth of skills for African lawyers vices is taken seriously and that lawyers to allow for effective competition, while play their role in promoting trade in the allowing lawyers to specialise in specific SADC region. Lawyers have a role, as areas; part of professional services, in facilitat- • to support and strengthen Bar associa- ing trade and investment, a role that law- tions and law societies at national and yers in the East African Community have regional level, while at the same time taken seriously. There must be partner- increasing lawyers’ participation in pro ships between lawyers and governments, bono work so as to fight the perception as opposed to them being adversaries, as that lawyers are merely profit-oriented; this leads to governments not relying on • to grow capacity in the area of law firm local legal expertise but rather consult- management as law firms need govern- ing foreign lawyers due to lack of trust; ance structures and strategies to invest • to address the weak skills base among in talent management, adopt value- local lawyers in relation to the changes based approaches to business and ac- that are taking place, for example in the knowledge the importance of business areas of oil and gas. In this regard, law development; and societies must address these skills gaps • for collaborative alliances by law firms Lomcebo Dlamini, coordinator of through continuing legal education for as they provide both independence and the Swaziland Coalition of Con- practitioners; presence in various jurisdictions. cerned Civic Organisations, was a • for senior lawyers to manage the ex- Generally there was an acknowledg- speaker in the session on women pectations of young lawyers; Bar asso- ment that African lawyers must realise in the legal profession. ciations and law societies should ensure that there is no need to defer constantly

DE REBUS – OCTOBER 2014 - 18 - NEWS echelons of the profession due to the patriarchal nature of the profession on the one hand and their care roles on the other, which inhibit their professional development. There is, therefore, a need for such gender and care roles to be rec- ognised and properly acknowledged by the organisations that female lawyers work in. It has become increasingly difficult for young lawyers to get their first jobs after law schools, leading to the sexual har- assment of young female lawyers. There was a need for senior female lawyers to protect young female lawyers and stand Women lawyers panel: The panel that discussed the challenges faced by up against such abuse. Mentorship by women lawyers in the legal profession and in advancing human rights protec- senior lawyers was one way of protect- tion included, from left, Connie Nawaigo-Zhuwarara from Zimbabwe Lawyers ing younger lawyers. for Human Rights, Malawian lawyer Maureen Kondowe and Irene Petras from Female lawyers lacked networks to Zimbabwe Lawyers for Human Rights. grow their businesses, as compared to their male colleagues. There was, there- fore, a need for women to establish their associations at national and regional development of any country and the suc- own networks such as women lawyers’ levels. Delegates acknowledged that the cess of projects. majority of male lawyer were concerned Whereas there have been recent criti- that female lawyers should succeed and cisms of model mining agreements due as such, female lawyers must work with to the inequality of bargaining power and their male colleagues to grow both pro- experience; corruption, lack of transpar- fessionally and socially. ency as well as inequality of economic Female lawyers must participate in benefits, it would still be important for law society governance structures at lawyers to familiarise themselves with both national and regional levels in or- them in line with regional and interna- der to develop the requisite skills and tional best practices in the sector and as also so that their skills and expertise are a means of articulating a role for region- recognised. However, leadership in the al economic communities such as SADC. legal profession for women can be an Lawyers needed to familiarise them- isolating and lonely experience. It was, selves with the stabilisation clauses therefore necessary for female lawyers regime to advise adequately on how to in leadership positions to foster the nec- overcome risks to the projects as well as essary support structures. the potential imbalance of beneficiation Human-rights lawyering must be tak- between the state and the investor. en seriously by female lawyers – and all Lawyers must play a role in ensuring Pietermaritzburg High Court Judge lawyers generally – to dispel the notion that communities affected by mining Thoba Poyo-Dlwati was the keynote that human rights work is not rewarding. provide prior informed consent to min- speaker at the session which looked The judiciary must appreciate the in- ing activities and appreciate the nature at challenges faced by female ternational human rights frameworks of mining developments before the min- lawyers. She looked at the and instruments for the promotion and ing development commences, while at pressures faced by women as protection of women’s rights and make the same time ensuring that communi- professionals meeting fee targets a difference by giving progressive deci- ties benefit from business relationships and as care-givers looking after sions on issue of women’s rights at vari- with the mining companies. different generations of dependants ous levels. In negotiating contracts, lawyers must by asking whether law firms are Law societies and Bar associations ensure that trust is developed between generally keen to ‘keep the must find ways of rewarding law firms and among the various interested parties keepers’. She noted that women that develop and effectively implement by clearly articulating the key roles and should not measure their success by gender policies. responsibilities of all the major actors, comparing themselves to their male including the state, the private sector counterparts, but rather urged the Mining agreements: Tools and communities. profession to change to embrace for building trust between the multifaceted role which women must play. She summed up that stakeholders multifaceted role as follows: ‘I am Owing to new natural resource discover- Thoba. I am mother to Elihle and ies on the continent (and in the region), Lwandle. I am wife to Hlubi. And I lawyers in developing countries need to am a judge.’ Judge Poyo-Dlwati is become better versed in complex con- a former President of the SADC tract negotiations and drafting skills to Lawyers Association, Co-chairper- realise the full financial and social ben- son of the Law Society of South efits to local contracting partners and Africa and President of the communities. KwaZulu-Natal Law Society. Model mining agreements are impor- Barbara Whittle [email protected] tant in the promotion of the economic

DE REBUS – OCTOBER 2014 - 19 - NEWS SADC LA AGM

t its annual general meeting following the conference in Zimbabe, the SADC Lawyers Association (SADC LA) adopted draft SADC Minimum Standard Guidelines Afor the Treatment and Management of Detainees. These have been made available to member law societies and Bar associations. The guidelines aim to apply to the management of detainees in pre-trial detention, awaiting sentence and to those serving sentences following a legally recognised trial through a nation- al court system of a SADC country. Places of detention where such detainees are held include police cells and correctional facilities housing either remand detainees or those serving prison terms. The guidelines do not apply to the management of detainees held in terms of military disciplinary or court mar- tial proceedings or any proceedings outside of the nationally recognised criminal justice delivery system. The SADC LA Executive elected at the conference in August The LSSA’s representatives on the SADC Lawyers is as follows: Association council are Max Boqwana (left) and • Gilberto Caldeira Correia, President (Mozambique); Noxolo Maduba (right). With them are outgoing • James Banda, Vice-President (Zambia); SADC LA President Kondwa Sakala-Chibiya from Zambia and the newly elected SADC LA President • Max Boqwana, Treasurer (South Africa); Gilberto Correia from Mozambique. • Binta Hazel Tobedza, Committee Member (Botswana); and • Nkoya Thabane, Committee Member (Lesotho). • Copies of documents and presentations made at the SADC LA conference and AGM – where these have been made available by the presenters – can be accessed on the SADC LA website at www.sadcla.org or requested from Chantelle de Sousa at Barbara Whittle [email protected] [email protected]

Errata

• In 2014 (Sept) DR 34, the author of torney at the Cape Town office of Cliffe have read: ‘Data comprises of the out- ‘Business Rescue: The position of se- Dekker Hofmeyr. put of analogue devices or data in dig- cured creditors’, Dominique Wesso, The confustion that this may have ital format. It is manipulated, stored was said to be a candidate attorney caused is regretted. or communicated by any man-made at Cliffe Dekker Hofmeyr in Johan- • In the article ‘Rise of the machines – un- device, computer or computer system

nesburg. derstanding electronic evidence’ in 2014 or transmitted over a communication Ms Wesso is, in fact, a candidate at- (Aug) DR 34 the definition of data should system.’ q

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DE REBUS – OCTOBER 2014 - 20 - Ever considered doing your LLM or LLD @ Faculty of Law, Potchefstroom Campus of the North-West University?

We offer quality legal education and focused research while remaining involved in our community.

The following LLMs are offered by means of coursework: • Comparative Child Law • Environmental Law and Governance (also MPhil for non-lawyers) • Estate Law • Import and Export Law • Labour Law The research LLM and LLD are offered in all fields

Prerequisite for LLM: LLB or equivalent four year law degree. Prerequisite for LLD: LLM Apply or book your place at our Postgraduate Open Day in Potchefstroom on 24 September 2014 at [email protected] or [email protected].

More information on the LLMs and LLD available at http://www.nwu.ac.za/content/application-master-doctorate-studies. Postdoctoral research fellowship(s) are available annually Visit http://www.nwu.ac.za/post-doctoral-fellowship or e-mail [email protected]. Closing date for applications: 30 November 2014

DID YOU KNOW? Approximately 1800 hours are required to complete a masters degree, the course work and dissertation can be completed over 2 years. Seminars are offered for full-time as well as part-time LLM students in Potchefstroom in block sessions and over weekends on Fridays and Saturdays.

It all starts here TM LSSA NEWS

Compiled by Barbara Whittle, communication manager, Law Society of South Africa, [email protected]

LSSA raises grave concern about scurrilous attacks on Public Protector and Judge Masipa

n September, the Law Society of executive, the legislature and the judi- in the glare of the local and international South Africa (LSSA) raised its se- ciary – to assist and protect the Public media, and people are free to disagree rious concern about the unwar- Protector. with the judgment. Judgments by our ranted, scurrilous and personal ‘Persons or organisations that have courts are not above scrutiny; but judg- attacks on the Public protector, problems or disagree with her reports ments of the court must be respected advocate Thuli Madonsela, par- should follow the proper legal route to and scrutiny must be informed, con- Iticularly as regards her Nkandla report challenge the reports and call for them structive and based on sound legal prin- ‘Secure in Comfort’, and against Pretoria to be reviewed. Only a court of law can ciples. For that reason we have an appeal High Court Judge Thokozile Masipa fol- review her reports. However, such organ- procedure in our courts which allows lowing the latter’s judgment in the Oscar isations and persons must guard against parties – who are of the view that a dif- Pistorius matter. involving the Office of the Public Protec- ferent judge or court may come to a dif- As regards the Public Protector, LSSA tor in unnecessary litigation as this will ferent conclusion – to apply for leave to Co-chairpersons Max Boqwana and Et- add to the financial and human resource appeal. However, personal attacks on the tienne Barnard noted in a press release: burdens of her Office, which is already judicial officer and the legal practition- ‘It is unacceptable that the Public Protec- inundated with investigations on behalf ers are not acceptable or appropriate in tor, advocate Thuli Madonsela, should be of the public,’ they said. a country where the rule of law and the the target of undeserved attacks – even Aligning itself with the serious con- independence of the judiciary and of the of a personal nature – and that her in- cern raised by a number of legal organi- legal profession are paramount.’ tegrity and that of her Office and staff sations including the Legal Resources They added that ‘judicial officers – is questioned at every turn. The Office Centre, Section27, the Centre for Child judges and magistrates – and legal prac- of the Public Protector is carrying out its Law and the Black Lawyers Association titioners must be allowed to perform mandate in terms of the Constitution. regarding the threats and personal at- their duties without fear of attacks on Her Office is a Chapter Nine institution tacks made against Judge Masipa, par- their persons, safety or work environ- which is independent and subject only to ticularly comments made regarding the ment.’ the Constitution and the law.’ judge’s race and gender, the Co-chair- They added that the Constitution en- persons said: ‘The Pistorius matter was joins all organs of state – including the a high-profile case that played itself out

LSSA calls for representation for attorneys and advocates on new Legal Aid South Africa Board

arlier this year, the Law So- bodies and no provision had been made didate attorneys, the law societies had ciety of South Africa (LSSA) in the Legal Practice Bill (LPB) for the a vested right in the functioning of the made comments on the Legal regulation of paralegals. Therefore, the Board. Aid Bill and the Attorneys LSSA suggested the clause be amended In terms of the LPB, the Legal Practice Amendment Bill. Both Bills as follows: ‘Legal Aid South Africa may Council (LPC) would in future regulate at- were debated by the Portfolio employ paralegals to provide legal ser- torneys, candidate attorneys, advocates ECommittee for Justice in Parliament late vices and advice, provided that the pa- and pupils. The LPB provides for sepa- in August and in September. ralegal is subject to the supervision of a rate representation by Legal Aid South As regards the Legal Aid Bill, the LSSA legal practitioner.’ Africa on the LPC, due to the nature of pointed out that clause 4(1) allowed the As regards the composition of the the legal services rendered and due to Board to do all that was necessary to Board, the LSSA noted its concern that the contribution by Legal Aid South Af- achieve the objects of Legal Aid South no provision had been made for the rep- rica to access to justice. The LSSA point- Africa, including among other actions, resentation of the legal profession on ed out that it is an objective of the LPC employing paralegals. The LSSA noted the Board. The LSSA stated: ‘The core to ensure access to justice and as such, that, although it had no objection to pa- function of Legal Aid South Africa is to the Legal Aid Bill should provide for ralegals being used as researchers, inter- deliver legal services. The statutory law reciprocity for attorneys and advocates viewers and the like (provided that they societies and General Council of the Bar as far as representation on the Board of are under proper supervision and over- are the main regulators of practising Legal Aid SA is concerned. sight by a legal practitioner), they should attorneys and advocates and as such As regards clause 22(3) of the Legal not be allowed to sign pleadings and ap- should be represented on the Board.’ Aid Bill, the LSSA stated that it appears pear in court. In addition, the LSSA stressed that that a court may not mero motu refer a The LSSA added that currently parale- since Legal Aid South Africa employs in person to Legal Aid South Africa for legal gals did not fall under the disciplinary excess of 2 000 legal practitioners and representation at state expense, but can jurisdiction of any regulatory statutory as such is the largest employer of can- only do so after the person has already

DE REBUS – OCTOBER 2014 - 22 - applied to Legal Aid South Africa, which made only very brief submissions of peals the laws of the former territories request has been refused and he or she a technical nature on the Attorneys in so far as they are still applicable to at- has exhausted all internal remedies. The Amendment Bill, stressing that the Bill torneys and candidate attorneys in these LSSA noted: ‘This section might have un- was urgent and that the amendments territories. intended consequences, such as depriv- should in no way delay its passage, which ing people of their rights in terms of s 35 was in the interest of the profession and • The full comments by the LSSA can be of the Constitution and lead to unneces- of the public. The Bill is aimed, among accessed on the LSSA website at www. sary delays in the conduct of trials.’ other aspects, at addressing disparities LSSA.org.za under ‘Legal practitioners – LSSA comments’. Attorneys Amendment Bill in relation to attorneys and candidate attorneys in the territories comprising urgent the former Republics of Transkei, Bo- The Law Society of South Africa (LSSA) phuthatswana, Venda and Ciskei. It re-

Tshepo Shabangu to represent LEAD launches course for LSSA at IBA women lawyers retoria attorney Tshepo Sha- in leadership bangu will represent the Law Society of South Africa (LSSA) he Law Society of South on the council of the Interna- Africa (LSSA) strongly sup- tional Bar Association (IBA). ports the view that more PMs Shabangu is a partner at Spoor & women should take up Fisher in Centurion. She has the BProc, leadership positions in the LLB and LLM degrees and has practised ‘Tlegal profession,’ says LSSA Chief Execu- in the intellectual property (IP) field for tive Officer, Nic Swart. more than 18 years. She specialises in The LSSA’s Legal Education and Devel- local and foreign prosecution of trade opment division (LEAD), in association marks, general advice on copyright with the Nelson Mandela Metropolitan matters, conducting due diligence in- University, has launched a pilot project vestigations of (IP), trade mark audits, aimed at empowering women attorneys management of IP portfolios and has by focussing on key concepts relating to experience in drafting of IP-related leadership. agreements. Ms Shabangu is a past These include – President of the South African Institute Tshepo Shabangu is the • ‘branding’ and how to develop a per- of Intellectual Property Law (SAIIPL). Law Society of South Africa’s new sonal brand; The IBA will be holding its annual representative on the council of • leadership styles and how to apply your conference in Tokyo from 19 to 24 Oc- the International Bar Association. own style; tober 2014. • the requirements of powerful thinking; • the dynamics of organisational politics and how to manage this reality; LEAD launches pilot workshop on writing • thinking and acting strategically; • emotional intelligence and interacting for the media and law journals effectively at different levels; and • facing the challenges/obstacles for women leaders and how to overcome here is a growing need for attor- • planning the layout (conveying the these. neys to make valuable input to and crux of the message in plain, practical The programme will be intensive and address current issues in practice, language); T interactive, running over two sessions – and to contribute information to the • choosing a title; of three days in November 2014 and two public through the print media, thus • choosing the correct medium for pub- days in February 2015 – with facilitators promoting access to the law and justice. lication; that are dynamic tutors in their areas of In recognition of the above, the Law So- • publication requirements for De Rebus, specialisation. ciety of South Africa’s Legal Education mainstream media and journals; and The first pilot course will be offered and Development (LEAD) division has • plagiarism, copyright, referencing and in Johannesburg (after which LEAD will launched a pilot writing course that will fact-checking. consider expanding this course to other enable attorneys to publish articles, let- The course will be practically orientated centres). ters, case notes and other pieces in the and will allow participants to apply what Applications from women lawyers print media (in De Rebus, other law jour- they have learnt, with feedback from the with at least eight years’ practical experi- nals and in newspapers). The course will facilitators. The first pilot courses will be ence, who are interested in growing their be facilitated by tutors who specialise in offered in Johannesburg and Pretoria at leadership skills, will be considered. media and law journal publication, and the end of October 2014. For more information on the women will be aimed at providing practitioners • For more information, e-mail jeanne- lawyers in leadership course, e-mail with the practical skills needed to get [email protected] to express your inter- [email protected] and indicate their names in print. est in attending the course or access the

your potential to be a significant leader

The course will focus on – registration form on www.LSSALEAD. in your chosen field. q • choosing a topic; org.za

DE REBUS – OCTOBER 2014 - 23 - PEOPLE & PRACTICES People and practices

Compiled by Shireen Mahomed

Fasken Martineau in Johannesburg has two new appointments.

Shepstone & Wylie in Um- hlanga has appointed David Coleman as a partner in the Simon Pratt has been ap- Bianca da Costa has been Sefalafala Attorneys in corporate and commercial pointed as a partner in appointed as an associate. Hyde Park has appointed law department. He spe- the litigation and dispute She specialises in commer- Bukhosi Sibanda as an cialises in banking finance resolution department. He cial litigation, commercial associate in its litigation transactions, acquisition fi- specialises in litigation, and construction law. department. nance, property finance and dispute resolution and preference share finance. commercial law.

Please note: Preference will be given to group photographs where there are a number of featured people from one firm in order to try and accommodate everyone. q

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DE REBUS – OCTOBER 2014 - 24 - PRACTICE NOTE The meaning of debt for actions against organs of state

By Vhelaphi Peter Muthevhuli

n terms of s 1(1) of the clear that a debt is any liabil- 12 in the Zulu matter with plication to enforce payment Institution of Legal Pro- ity whatsoever. It is, however, approval in Vhembe District or issue summons, without ceedings Against Cer- followed by para (b) and the Municipality v Stewarts & wasting time and costs by tain Organs of State Act question which arises is how Lloyds Trading (Booysens) complying with the Act, as 40 of 2002 (the Act) a the two paragraphs relate to (Pty) Ltd (SCA) (unreported such compliance would be le- ‘debt’ means ‘any debt each other. They can be read case no 397/13, 26-6-2014) gally unnessessary. Iarising from any cause of ac- either disjunctively or con- (Van Zyl AJA). This means See also Nicor IT Consulting tion – junctively. The paragraphs that all the claims arising out (Pty) Ltd v North West Housing (a) which arises from delict- are linked by “and” and not of a contract with an organ of Corporation 2010 (3) SA 90 ual, contractual or any other “or”. Ordinarily, paragraphs state, as long as they are for (NWM) and Director-General, liability, including a cause or phrases linked by “and” specific performance and not Department of Public Works of action which relates to or are read conjunctively and damages, are not covered by v Kovacs Investment 289 (Pty) arises from any – those by “or” disjunctively. the word ‘debt’ under s 1(1) Ltd 2010 (6) SA 646 (GNP) for i. act preformed under or in Accordingly, although the of the Act. Consequently, this more. terms of any law; or courts have read “and” to means that the Act would not ii. omission to do anything mean “or” and vice versa in be applicable and creditors which should have been done appropriate circumstances, need not comply with its pro- Vhelaphi Peter Muthevhu- under or in terms of any law; there must be compelling visions. li LLB (University of Ven- and reasons to change the words I submit that, as soon as da) is an attorney at Kern (b) for which an organ of state used by legislature’. a claim for specific perfor- & Dekker Inc in Louis is liable for payment of dam- The court in para 12 held mance or non-damages is Trichardt/Makhado. ages, whether such debt be- that: ‘Using the ordinary due, the creditor may imme- came due before or after the meaning of the words in the diately proceed with an ap- q fixed date’. definition, therefore, the two Subsections 3(1) and (2) re- paragraphs must be read con- quire that a notice of intend- junctively. When that is done, ed legal proceedings must be para (b) qualifies or limits the given to the concerned organ generality of para (a) in two of state by the creditor within ways. First, it restricts debts six months from the date on to those which constitute a which the debt became due. liability to pay damages and, This is a peremptory step be- secondly, it restricts debts to fore legal proceedings can be those where an organ of state instituted. is the debtor. On an ordinary Before compliance with the reading of the definition it requirement of s 3(1) is need- boils down to this. A debt is ed, it must be ascertained the liability of an organ of whether the claim at hand state to pay damages, arising constitutes a debt in terms from any cause of action’. of s 1(1). This presupposes In the Zulu matter, what that there are claims against was claimed against the or- organs of state which are not gan of state was arrear rental debts as envisaged in s 1(1) of in terms of a lease agreement. the Act. The court held that s 3(1) of In Thabani Zulu & Co (Pty) the Act was not applicable as Ltd v Minister of Water Affairs arrear rental was non-dam- and Another 2012 (4) SA 91 ages debt, but the claim for (KZD) at para 11, the court arrear rental was one for spe- held that: ‘Paragraph (a) of cific performance. the definition [of the Act] is The Supreme Court of Ap- widely worded and makes it peal quoted paras 11 and

DE REBUS – OCTOBER 2014 - 25 - PRACTICE NOTE

Electronic delivery of communications to taxpayers: Is SARS toeing the line?

By Alan Lewis

any taxpayers would have to which email messages are delivered’ by posting them on that taxpayer’s e- received an sms informing (en.wikipedia.org/wiki/Email_address, filing page. them that the South Afri- accessed 2-9-2014). SARS may apparently only deliver can Revenue Service (SARS) In the light of these definitions, I sub- those notices and communications in has issued an assessment mit that SARS’ e-filing system is not an this manner which follow the process of Mon them, or that it has issued some no- electronic address, but simply a server objection and appeal, after the taxpayer tice to them, and that they can find these on which certain documents can be filed. has delivered the notice of objection. documents on the e-filing system. In my opinion, this conclusion is sup- Both ss 251 and 252 of the Act place Unfortunately, some taxpayers be- ported by the terms of the new tax court a legal duty on SARS to prove that it has came aware of such documents, which rules, which are discussed below. delivered documents, notices and com- have been filed on their e-filing profiles, munications in the prescribed manner only when SARS informed them of that, The new tax court rules and in the absence of proof of such de- and as a result of their failure to re- These rules, which prescribe the proce- livery, SARS would be hard pressed to spond, SARS intends to take legal action dures which are to be followed in lodg- demand that a taxpayer must comply against them. ing an objection and appeal against an with any such notices or communica- Is SARS obliged to deliver documents assessment, were promulgated in terms tions. to a taxpayer by electronic means in a of the Act on 11 July 2014, and are ef- For example, if SARS fails to deliver an particular manner? fective from that date. They define ‘de- assessment, as prescribed by the Act, it liver’ by SARS, in terms of the rules, as may be unable to enforce the assessment The law follows: and claim payment of any assessed tax- Section 252 of the Tax Administration ‘“deliver” means to issue, give, send or es. In handing down its decision in the Act 28 of 2011 (the Act) contains the fol- serve a document to the address speci- matter of Singh v Commissioner, South lowing provisions: fied for this purpose under these rules, African Revenue Service 2003 (4) SA 520 ‘If a tax Act requires or authorises in the following manner: (SCA), the Supreme Court of Appeal con- SARS to issue, give, send or serve a no- (a) by SARS ... in the manner referred firmed that, in the absence of the tax- tice, document or other communica- to in section 251 or 252 of the Act, ex- payer receiving notice of an assessment, tion to a company, SARS is regarded as cept the use of ordinary post; SARS cannot institute legal proceedings having issued, given, sent or served the (b) by SARS, if the taxpayer or appel- to recover the assessed taxes (para 14 – communication to the company if – lant uses a SARS electronic filing service 19). ... sent to the company or its public of- to dispute an assessment, by posting it on In the light of this judgment, I submit ficer’s last known electronic address, the electronic filing page of the taxpayer that a taxpayer can lawfully receive no- which includes the – or appellant ...’ (my emphasis) (GN550 tice of an assessment only if it is deliv- • last known e-mail address; or GG37819/11-7-2014). ered electronically by SARS as prescribed • last known telefax number.’ by ss 251 and 252 of the Act. Similar provisions, in s 251 of the Act, Summary In my opinion, neither the provisions regulate the electronic delivery of docu- It appears that ss 251 and 252 of the Act of the Act nor the new tax court rules, ments, notices and other communica- are clear: As far as electronic communi- authorise SARS to deliver an assessment tions to taxpayers who are not compa- cations are concerned, with the excep- to a taxpayer by posting it on a taxpay- nies. tion of those particular communications er’s e-filing page on SARS’ electronic fil- The Act does not define the term ‘elec- which are referred to in the rules, SARS ing service. tronic address’. The website Dictionary. must send the particular notice or docu- com defines this term as ‘the electronic ment to the taxpayer’s last known e-mail mail designation for a recipient who address or last known telefax number. Alan Lewis BProc (UFS) LLB (UFS) uses that mail software’ (dictionary.ref- However, if a taxpayer elects to dis- LLM (Tax)(UP) is an advocate and erence.com/browse/electronic+address, pute an assessment by using SARS’ e-fil- a tax law consultant in Johannes- accessed 2-9-2014), while Wikipedia de- ing service, then only may SARS deliver burg. fines an ‘email address’ as ‘an email box documents and notices to that taxpayer q

DE REBUS – OCTOBER 2014 - 26 - LEGAL RESOURCES from Juta Law

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Ut tincidunt tortor. Donec nonummy, enim in lacinia pulvinar, velit Ut tincidunt tortor. Donec nonummy, enim in lacinia pulvinar, velit tellus scelerisque augue, ac posuere libero urna eget neque. Dismissal (2nd edition) tellus scelerisque augue, ac posuere libero urna eget neque. Workplace Law (11th edition) Cras ipsum. Vestibulum pretium, lectus nec venenatis volutpat, purus lectus ultrices Cras ipsum. Vestibulum pretium, lectus nec venenatis volutpat, purus lectus ultrices risus, a condimentum risus mi et quam. Pellentesque auctor fringilla neque. Duis eu risus, a condimentum risus mi et quam. Pellentesque auctor fringilla neque. Duis eu massa ut lorem iaculis vestibulum. Maecenas facilisis elit sed justo. Quisque volutpat massa ut lorem iaculis vestibulum. Maecenas facilisis elit sed justo. Quisque volutpat malesuada velit. malesuada velit. Integer ut purus ac augue commodo commodo. Nunc nec mi eu justo tempor Integer ut purus ac augue commodo commodo. Nunc nec mi eu justo tempor consectetuer. Etiam vitae nisl. In dignissim lacus ut ante. Cras elit lectus, bibendum J Grogan consectetuer. Etiam vitae nisl. In dignissim lacus ut ante. Cras elit lectus, bibendum J Grogan a, adipiscing vitae, commodo et, dui. a, adipiscing vitae, commodo et, dui. JOHN GROGAN JOHN GROGAN Dismissal comprehensively deals with all the This well-established book is a practical guide circumstances in which dismissals arise and are through areas such as discipline and dismissal, challenged, with examples drawn from recent case unfair labour practices, employment equity, collective law. The procedural requirements governing dismissal bargaining and industrial action. The 11th edition has and the remedies available to unfairly dismissed been revised with the latest case law and covers the employees are also described in detail. The latest significant 2014 amendments to the LRA, EEA and legislative amendments are taken into account. BCEA.

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A PRACTICAL GUIDE FOR THE WORKPLACE Employment LAW OF BUILDING AND LAW OF Employment and the Law ENGINEERING CONTRACTS ZAR AND ARBITRATION ZAR

A PRACTICAL GUIDE FOR THE WORKPLACE BUILDING SEVENTH EDITION • PA RAMSDEN M c KENZIE’S Employment and the Law: A Practical Guide for the Workplace is a comprehensive yet practical guide to the McKenzie’s Law of Building and Engineering Contracts and Arbitration application of labour law in the workplace. The third edition provides a unique reference guide comprising has, since it was first published in 1966, been an essential reference for legal relevant statutes, case summaries, principles established through cases and awards, recommended processes, professionals and arbitrators involved in building and engineering disputes. blueprints and pro forma documentation, and guidelines, including practice and procedure. AND Built environment professionals such as engineers, architects, quantity LAW OF Employment and the Law allows for quick and easy access to the information required to manage the employment THIRD EDITION surveyors and project managers who are tasked with managing these

relationship effectively. The book will prove useful in both preventing and resolving labour disputes. Soft cover 580 pages 978-1-4851- R535 contracts, on behalf of either the employer or the contractor will find this ENGINEERING CONTRACTS AND Soft cover 468 pages 978-1-4851- R595 The publication is intended for use by human resource managers, line managers, trade union representatives book of great value. The book is also suitable as a prescribed textbook for BUILDING and senior executives. Students studying in the areas of human resource management, labour relations or graduate and post-graduate courses on building and engineering contract and the labour law will also find it useful. 0173-4 law. AND 0614-2 The commentary refers to the JBCC Principal Building Contract (6 th edition) Helga Landis holds a Master’s degree in Labour Law and Human Resources Management of March 2014 and the General Conditions of Contract for Construction and a Higher Diploma in Labour Law. She studied mass communication and journalism in Works (2nd edition) of 2010. The JBCC agreement and the GCC have been the USA, and is currently completing her doctoral degree in Holistic Life Coaching. She is an ENGINEERING Employment extensively cross-referenced in the text and are reproduced as annexures internationally accredited executive and business coach. and the

Law to the book for reference purposes. The book also cross-references the Helga is the CEO of Saraswati Executive Coaching International and the CEO of Gravity Consulting. She was previously the Group CEO of the Landis Group of Companies, including relevant clauses of the FIDIC Contract Agreement 1999. The Arbitration Act CONTRACTS Landis & Associates. 42 of 1965 and the Rules for the Conduct of Arbitration are also reproduced Helga has consulted to many premier organisations in all areas of labour law and human as annexures. resources management, and has directed numerous consulting assignments, including AND organisational restructuring, business process re-engineering, organisational redesign and strategy design. Her business is currently retained by key global corporates for executive and Law th The author of this 7 edition, Peter Ramsden Pr Eng, holds the degrees business coaching services. A PRACTICAL GUIDE FOR THE WORKPLACE of BSc (Engineering), BCom, MBL, an LLB and is a member of the South

African Institution of Civil Engineers and advocate of the High Court of South ARBITRATION ARBITRATION Lesley Grossett holds a BA degree in Industrial Sociology (University of the Witwatersrand), Employment and the Law: A Africa. Peter Ramsden is an independent counsel and consultant in civil McKenzie’s Law of Building and an Honours, BA degree majoring in Sociology (UNISA), a Certi cate in Industrial Relations

Lesley Grossett Helga Landis engineering, law and project financing and is a listed arbitrator with the (Wits Business School) and a Higher Diploma in Labour Law (University of Johannesburg). Helga Landis She has consulted extensively to organisations in the areas of employment relations and labour Institution of Civil Engineers. He has also authored The Law of Arbitration law, and has compiled and published various guides, policies, commentaries and analyses for and Lesley Grossett (Juta 2009) and A Guide to Intellectual Property (Juta 2011). both practitioners and students in human resources and related elds. She is currently involved in writing, editing, consulting and conducting research. Practical Guide for the Workplace Engineering Contracts and P A RAMSDEN (3rd edition) SEVENTH EDITION Arbitration (7th edition) H Landis, L Grossett P Ramsden Employment and the Law: A Practical Guide for the The 7th edition of McKenzie’s Law of Building and Workplace is a comprehensive yet practical guide Engineering Contracts and Arbitration is an essential to the application of labour law in the workplace. reference for those in the construction industry. It is the The book allows for quick and easy access to the first commentary on the new JBCC 2014 agreement information required to manage the employment and the SAICE GCC 2010, which are annexed to the relationship effectively. The book will prove useful in book and extensively cross-referenced to assist the both preventing and resolving labour disputes. reader.

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Courtroom of the future – virtual courts, e-courtrooms, videoconferencing and online dispute resolution

he future of the courts is • There are the technologies that legal greatly dependent on technol- representatives use to present evidence ogy and how technology can and arguments. improve their functioning. • The existence of electronic documents According to Jeff Aresty has fundamentally changed the discov- By T(‘State Courts and the Transformation to ery process. Izette Virtual Courts’ Litigation Spring 2013 vol • Lawyers can use new technology out- Knoetze 39(2) 50) there are three general catego- side the courtroom to start their cases, ries of changes in courtroom technology: maintain their cases and get word out

DE REBUS – OCTOBER 2014 - 28 - FEATURE about their cases. E-filing, social media In Canada, videoconferencing technol- and legal research have transformed the ogy has been used to receive witness tes- traditional work of lawyers. timony in civil trials for over a decade ‘A virtual court is a (Amy Salyzyn ‘A New lens: Reframing conceptual idea of a judicial Virtual courts the conversation about the use of vide- forum that has no physical According to Keith Kaplan (‘Will Virtual oconferencing in civil trials in Ontario’ presence but still provides the Courts Create Courthouse Relics?’ The Osgoode Hall Law Journal 2012 vol 50(2) Judges’ Journal 2013 vol 52(2) 32) a vir- 431). The Ontario Rules of Civil Proce- same justice services that are tual court is a conceptual idea of a ju- dure allow for witnesses in civil trials to available in courtrooms.’ dicial forum that has no physical pres- testify remotely using videoconference ence but still provides the same justice technology. Rule 1.08 of the Ontario services that are available in courtrooms. Rules of Civil Procedure provides that Access to virtual courts would, however, a witness’s oral evidence at trial may be and can be defined as any method by be limited to online access, videoconfer- received by videoconference if the par- which parties attempt to resolve dis- encing and teleconferencing. ties consent; and that in the absence putes online. ODR uses technology, par- of consent, evidence may be received ticularly the internet, to augment ADR Expert testimony through by videoconference upon motion or on processes. videoconferencing the court’s own initiative. The receipt The different methods of ADR mainly of evidence through videoconference is negotiation, conciliation, mediation and Videoconference technology allows wit- subject to the discretion of the court. nesses to testify at trial without being arbitration have proven to be an effec- According to Salyzyn (op cit at 433) the tive, speedy and cheaper way to avoid physically present in the courtroom. In court, in exercising its discretion, takes contrast to a traditional, in-person wit- the heavy burden imposed by judicial the following factors into account, name- procedures. ODR has directly developed ness, the videoconference witness is not ly – physically present in the courtroom, as an online extension of ADR (M Albor- • the general principle that evidence and but ‘virtually present’ through the use noz ‘Feasability Analysis of Online Dis- argument should be presented orally in of technology. This enables the witness pute Resolution in Developing countries’ open court; and those in the courtroom to interact University of Miami Inter-American Law • the importance of the evidence to the (F Weber ‘Complying with the confronta- Review Fall 2012 vol 44(1) 43). According determination of the issues in the case; tion clause in the twenty-first century: to Frank Fowlie (‘Online Dispute Resolu- Guidance for courts and legislatures • the effect of the telephone or videocon- tion and Ombudsmanship’ Journal of considering videoconference testimony ference on the court’s ability to make International Ombudsman Association provisions’ Temple Law Review Fall 2013 findings, including determinations about 2011 vol 4(2) 50) ODR may be applicable vol 86(1) at 151). the credibility of witnesses; to disputes that emanate from either on- The use of videoconferencing technol- • the importance in the circumstances of line or real-world activities. For example, ogy in both criminal and civil cases is the case of observing the demeanour of ODR may be used as a vehicle to handle discussed below. a witness*; consumer disputes relating to online In many criminal cases it is necessary • whether a party, witness or legal repre- purchase of goods, or may be used as a to have testimony from fingerprint or sentative for a party is unable to attend resolution system for small claims in di- chemistry experts usually stationed in because of infirmity, illness, or any other rect business-to-consumer transactions. major cities. They are assigned to cases reason; ODR is a vehicle that allows the parties throughout the country and are often • the balance of convenience between to a dispute to resolve the matter, with requested to testify on the same day in the party wishing the telephone or vide- courts that are kilometres apart. Often, a oconference and the party or parties op- trial in a small town may have to be post- posing; and poned because the expert must testify in • any other relevant matter. another town. If, however, closed circuit Judges have, however, exercised cau- TV (CCTV) were used, the expert could tion with regard to this technology and work in the laboratory until needed to it has not become routine in the Ontario appear on the screen in either of the two civil courts. towns. The saving in time for many peo- I submit that presentation of the tes- ple, namely the presiding officer, legal timony of expert witnesses through representative and witness – and the im- closed circuit techniques or videoconfer- provement of the trial calendar are ob- encing would be most helpful in South vious advantages in this situation. With African courts, as it is a cheaper and real-time reporting, expert witnesses more flexible way to receive expert testi- can respond instantaneously across the mony. This technology will also improve country. access to justice. The factors used in On- The availability to experts of their own tario could be considered as guidelines laboratory equipment, which may be for South African courts. immovable or transported only at great cost, may also be most helpful in clarify- Online dispute resolution ing their testimony. A former American Online dispute resolution (ODR) may Presiding Judge, Colin F Campbell, indi- be the way tomorrow’s lawyer resolves cated that ‘widespread use of technology his or her client’s disputes without even during trial enhances the way evidence is leaving the office or home. ODR refers to presented, allowing facts, concepts and a process that may be applied to alterna- ideas to be more readily understood by tive dispute resolution (ADR) techniques jurors, litigants, spectators, lawyers and the Court’ (Kaplan op cit). *See also pages 10 and 51 of this issue.

DE REBUS – OCTOBER 2014 - 29 - 5559 OMW Lawyer Advertorial Generic 2.indd 1 2014/09/12 2:54 PM 5559 OMW Lawyer Advertorial Generic 2.indd 2 2014/09/12 2:54 PM FEATURE

Federal Mediation and Conciliation Ser- vice (FMCS) and the National Mediation Board (NMB) have both taken notice of ‘Not only will new technology ODR. The FMCS pioneered the use of on- allow for greater access to the line tools to negotiate contracts, while courts, but it can also improve the NMB has offered secure online tools the efficiency of the courts in lengthy, complex negotiations among parties spread across the country. Pri- operating in difficult vate firms offer flexible platforms that financial times.’ allow lawyers and other dispute resolv- ers to do traditional face-to-face work online and thus expand their practices to areas unique to the new technology-rich beginning to use it for postponements in environment. criminal matters in order to reduce the It should, however, be emphasised costs of transporting accused from cor- that ODR is not a replacement for court- rectional facilities to courtrooms. rooms, and seems to have the greatest It is foreseeable that more courts will potential in e-commerce and small- begin to use video technology to replace or without the participation of third par- claims disputes. the need for appearances in court. In the ties. future, trials may occur through video­ According to Albornoz (op cit at 47), E-courthouses conferencing with all parties’ securely the main types of ODR are the following: Another development is the implemen- accessing the court from locations of • Assisted negotiation – refers to an on- tation of e-courthouses in the US. Mari- their choosing. Courts, as they are cur- line, computer-assisted negotiation in copa County Superior Court in Phoenix, rently viewed, may become virtual and which technological tools enhance the Arizona, recently moved into a new not require litigants or staff to attend probabilities of reaching an agreement. courthouse that utilises e-courtrooms. court physically. Due to the absence of a human third These courtrooms have microphones Disadvantages of party, technology assists the parties in throughout, flat-screen monitors for the order to provide a solution by asking court and jurors, two-way videoconfer- technology questions, suggesting answers and send- encing to allow for court appearances In order to implement virtual court pro- ing reminders. from locations other than in the court- cedures and case processing, existing • Automated negotiation – is a specific house, evidence display systems with case-management systems will need to type of assisted negotiation. It is also touch screens that allow exhibits to be be modified or replaced to allow for new called ‘blind-bidding’ negotiation. This highlighted and annotated, and full au- technology and remote access. method is, however, limited to monetary dio and visual digital recording facilities It should, however, be noted that re- claims where money is the only variable (Kaplan op cit at 32). porters of digital recording devices are of the dispute. The proceeding is con- I submit that advances in technology sometimes unable to record statements ducted online without any human assis- can improve the courts and the public’s because they are inaudible. tance. Every party makes a confidential access to court services. Not only will bid at each round of the negotiations. If new technology allow for greater access Conclusion the system finds that the offer of the op- to the courts, but it can also improve the Some members of the legal profession posing party is equal to or less than the efficiency of the courts operating in dif- may view these modern communication complainant’s offer for a round, the case ficult financial times. devices as a threat; others may dismiss is automatically settled. Advantages of technology them as mere gadgetry. It should, how- • Online mediation and online arbitra- ever, be viewed as an opportunity for tion – both methods refer to a voluntary Some of the greatest benefits of a virtual imaginative and constructive use in fur- mediation proceeding or an arbitration court are the cost savings and hours of thering our goal of administering justice proceeding that is conducted over the service availability. Traditionally, courts properly and promptly. Digitising of the internet with the assistance of a human are open to the public only on business legal world will not only improve access, third party. In the case of online arbitra- days. This is, however, restrictive in that but also change the way litigators prac- tion the parties must have an express many litigants who need to access the tise law. agreement to arbitrate. courts also work on business days. Vir- It should be noted that the legal rep- In the United States, for example, the tual courts can eliminate this barrier not resentative and the courtroom will con- only by allowing 24-hours-a-day, seven- tinue to play the lead roles; as cases are days-a-week access to electronic filing simply too difficult for computers to and other case processing online, but handle alone. The client needs under- ‘Virtual courts can litigants will also be able to participate standing, responsiveness and advice eliminate this barrier not only in trials by videoconference. No longer that technology simply cannot provide. by allowing 24-hours-a-day, will litigants be forced to leave work to It is evident that with these new tools, attend court as they will access proceed- seven-days-a-week access to lawyers need to work harder than ever ings from their home or office. to stay abreast of changes in the practice electronic filing and other Thus, virtual courts would save on of law. case processing online, but overheads and costs associated with op- erating court facilities, thus improving litigants will also be able to access to justice. participate in trials by I submit that by utilising technology, Dr Izette Knoetze LLD (UFS) is an at- videoconference.’ courts have already reduced the need for torney and legal researcher at Legal people to access the courts physically. Aid South Africa in Johannesburg. As video technology improves, courts are q

DE REBUS – OCTOBER 2014 - 32 - Picture source: Gallo Images/Thinkstock Gallo source: Picture

Reform, reintegrate,

By Tafadzwa rehabilitate Mukwende Balancing restorative justice and juvenile offender rehabilitation

he introduction of the Child aging re-socialisation and re-education Law v Minister of Justice and Constitu- Justice Act 75 of 2008 (the programmes for juvenile offenders as tional Development and Others 2009 (6) Act) set new standards for held by the court in S v FM (Centre for SA 632 (CC) at para 35. Judicial officers the protection of the child Child Law as Amicus Curiae) 2013 (1) must structure the punishment in such a offender by establishing the SACR 57 (GNP) at para 28. Key interna- way as to promote the rehabilitation and Child Justice Court. Flow- tional instruments – such as Article 17.3 reintegration of the child concerned into Ting from the juvenile justice reforms is of the African Charter on the Rights and his or her family or community wherever the principle of restorative justice en- Welfare of the Child – provide that the possible according to S v Nkosi 2002 (1) trenched by the Act in the criminal jus- essential aim of treatment of every child SA 494 (W) at 505I. tice system with respect to children who offender shall be his or her reformation, It is shocking to note that juvenile of- are in conflict with the law. One of the reintegration into his or her family and fenders are being subjected to strikingly primary objects of the Act articulated in social rehabilitation. similar lengthy custodial sentences as s 2(c), is to provide special treatment of Generally, child offenders are uniquely those imposed on adult offenders for the children in the justice system. It is de- capable of rehabilitation possibilities as same offences, considering that most of signed to break the cycle of crime and compared to adult offenders, as illus- these juvenile offenders are first offend- promote safe communities by encour- trated by the court in Centre for Child ers without a criminal history or previ-

DE REBUS – OCTOBER 2014 - 33 - FEATURE ous convictions. The Supreme Court of 12-year-old girl convicted of murdering Appeal in Fredericks v S 2012 (1) SACR her grandmother in Director of Public 298 (SCA) held at para 15 that ‘the trial Prosecutions KwaZulu-Natal v P 2006 ‘It is shocking to note that court and the High Court misdirected (3) SA 515 (SCA) at para 9, stated that juvenile offenders are being themselves by imposing a lengthy sen- it is not inconceivable that some of the subjected to strikingly similar tence of imprisonment ignoring that the courts may be confronted with cases lengthy custodial sentences appellant was a child at the time of the that require detention. The court then commission of the offences’. The Con- referred to the case in the United King- as those imposed on adult stitutional Court in Mandla Trust Mpofu dom of R v Secretary of State for the offenders for the same v Minister of Justice and Constitutional Home Department, Ex Parte Venables; R offences, considering that Development 2013 (2) SACR 407 (CC) v Secretary of State for the Home Depart- at para 58 stated that the Constitution ment, Ex Parte Thompson [1997] 3 All ER most of these juvenile draws a sharp distinction between chil- 97 (HL) in which two ten-year-old boys offenders are first offenders dren and adults in the criminal justice were convicted of the murder of a two- without a criminal history system. year-old boy in appalling circumstances The sentencing court must observe and were sentenced to ten years. or previous convictions.’ that the actions of a juvenile offender should be treated as such or as those of Legal consequences of a child, and not equated to those of an the minimum sentencing (7) BCLR 861 (CC) at paras 22 – 23 em- adult in accordance with the principle regime phasised that South Africa’s child justice of proportionality, which requires the legislation should incorporate accepted sentence to fit the crime as well as the Primarily, the object of the minimum international standards, as well as such criminal (see S v Kwalase 2000 (2) SACR sentencing regime is that it prescribes further rules and limitations as to ensure 135 (C)). Children should be treated dif- the imposition of harsh and heavy sen- effective implementation of the interna- ferently from adults not for sentimental tences on juvenile offenders in relation tional standards. The objectives of sen- reasons, but because of their greater to scheduled crimes as emphasised in S tencing and the factors that should be physical and psychological vulnerability v Dodo 2001 (5) BCLR 423 (CC) at para considered are set out in s 69 of the Act. to pressure from others as held in the 11. The effect of the minimum sentenc- When considering the imposition of Centre for Child Law case at para 26. ing regime leads to disproportionate a sentence involving imprisonment in sentencing, thereby exposing child of- terms of s 77 of the Act, the child justice Comparable foreign fenders to consistently longer and tough court must mainly consider the serious- systems of justice sentences which limit the child’s rights ness of the offence, protection of the enshrined in s 28 of the Constitution, ac- The general considerations mitigating community and severity of the impact cording to Vilakazi v S [2008] 4 All SA the treatment and punishment of child of the offence on the victim. The court 396 (SCA) at para 18. offenders find resonance with compa- is also obliged to consider the circum- Section 51 of the Criminal Law Amend- rable systems of justice as stated in the stances pertaining to a specific child ment Act 105 of 1997 (the CLAA) distin- Centre for Child Law case at para 33. In when considering an appropriate sen- guished between adult offenders and declaring the death penalty unconstitu- tence according to S v M (Centre for Child child offenders. In terms of s 77(2) of the tional for offenders under 18 years of Law as Amicus Curiae) 2008 (3) SA 232 Act, a child justice court is required to age, the Supreme Court of the United (CC) case at para 42. It has become estab- deal with a child convicted of an offence States of America held that, ‘as a catego- lished practice for the court to consider in accordance with the provisions of s 51 ry, children are less culpable’ and thus a probation officer’s report; to enable it of the CLAA if the child is 16 years or ‘more vulnerable or susceptible to nega- to determine the most appropriate form older at the time of commission of the tive influences and outside pressures of punishment in the case of a juvenile offence referred to in sch 2 of the CLAA. including peer pressure’, according to offender as articulated by Botha JA in S v The Constitutional Court in the Centre Roper, Superintendent, Potosi Correction- Jansen and Another 1975 (1) SA 425 (A) for Child Law case at para 78, declared al Center v Simmons 543 US 551 (2005) at 427H – 428A. the provisions of the minimum sentenc- at 567 and 569. Similarly, the Supreme ing regime, which are ss 51(1), 51(2), Court of Canada found that children Special protection under 51(5)(b) and 51(6) of the CLAA uncon- are entitled to a presumption of dimin- stitutional and invalid to the extent to the automatic review ished moral culpability because of their which they apply to persons under the procedure ‘heightened vulnerability, relative lack of age of 18 years at the time of commis- maturity and reduced capacity for moral The Supreme Court of Appeal in Ntaka v S sion of the offence. judgment’ in the case of R v DB 2008 SCC [2008] 3 All SA 170 (SCA) held at para 39 ((2008) 293 DLR (4th) 278) 25 at para 41. Sentencing objectives and that the extension of special protection The court upheld a constitutional chal- arising from automatic review to all ju- lenge based on the Canadian Charter of factors to be considered venile offenders sentenced to detention Rights against the presumptive offences The child justice court must consider will promote the spirit and objects of regime which imposed a reverse onus on the constitutional imperatives of s 28(1) the Bill of Rights in line with the objects a juvenile accused to convince the Youth (g) of the Constitution, read with the identified in s 2(c) of the Act. The Consti- Justice Court not to impose an adult sen- standard international sentencing guide- tutional Court in the S v M case at para tence in R v DB at para 78. lines in art 37 of the United Nations Con- 15 held that a child who is sentenced by On the contrary, s 226 of the United vention on the Rights of a Child, which a regional court to a form of imprison- Kingdom Criminal Justice Act, 2003 prescribes in similar terms that every ment that is not wholly suspended or provides for the detention for public child has the right not to be incarcerated any sentence of compulsory residence in protection or for life in relation to seri- except ‘as a measure of last resort and a child and youth care centre providing ous offences committed by those under for the shortest possible time’ according a programme contemplated in s 191(2) 18 years. The court, when determining to the Fredericks v S case at para 5. The (j) of the Children’s Act 38 of 2005, is an appropriate sentence in respect of a court in S v Williams and Others 1995 also subject to the automatic review pro-

DE REBUS – OCTOBER 2014 - 34 - cedure under the provisions of s 85 of • Restorative justice sentences – s 73(1) tions as opposed to the custodial sen- the Act, as well as ss 302 and 304 of the of the Act provides for restorative jus- tencing approach. In addition, the Con- Criminal Procedure Act 51 of 1977 (the tice sentences where a child justice stitutional Court, in the S v Williams CPA). Section 85(1) of the Act provides court that convicts a child of an offence case at 883, endorsed the development that automatic review applies to crimi- may refer the matter to a family group of alternative sentences of a non-cus- nal proceedings in the lower courts in conference in terms of s 61 of the Act todial nature, after considering current respect of all children convicted in cer- and/or for victim-offender mediation in sentencing options and trends in child tain cases where the child was under the terms of s 62 of the Act. justice and penology. Consequently, this age of 16 years (s 85(1)(a)), or older than • Child and youth care centre – a child distinctive approach to juvenile sentenc- 16 years but under 18 years (s 85(1)(b)), justice court may sentence a child of- ing was adopted in the case of S v Z en at the time of the commission of the al- fender to compulsory residence in a Vier Ander Sake 1999 (1) SACR 427 (E) leged offence. child and youth care centre. The child at 438J – 439B. Subjecting a juvenile of- may remain in a youth care facility only fender to direct imprisonment exposes Appropriate and until the age of 21 years in terms of s the child to many detrimental effects of alternative sentencing 76(2) of the Act. incarceration that would be counter-pro- options • Correctional supervision – in terms of ductive to the prospects of rehabilitation s 75(a) and (b) of the Act, a child justice as held in S v Blaauw 2001 (2) SACR 255 Section 290(1) of the CPA empowers a court that convicts a child of an offence (C) at 262I – 263C. Correction, guidance court sentencing juveniles to consider al- may impose a sentence involving correc- and rehabilitation can best be achieved ternative sentencing options such as su- tional supervision in terms of s 276(1)(h) outside the prison environment in a pervision by a probation officer or other of the CPA for children under 14 years community setting, as stated in the S v person and detention in a reform school. or s 276(1)(i) of the CPA in the case of a Nkosi case at 147F – I. Alternative sentencing options under the child who is 14 years or older. Act include the following: • Diversion programme – Under excep- Conclusion tional circumstances provided for in s 52 of the Act, a matter may be diverted It has been recommended that the child Tafadzwa Mukwende LLB (UP) is a from formal court procedures in a crimi- justice court should be encouraged to candidate attorney at Locketts At- nal matter by means of procedures es- follow the restorative justice-oriented torneys in Nigel. q tablished by chapters 6 and 8 of the Act. and community-based sentencing op-

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DE REBUS – OCTOBER 2014 - 35 -

The link between the Legal Practice Bill and access to justice

By Jacques Halbert

he State has a Constitutional trusted with promoting and fulfilling the Since the advent of our democracy the mandate to take progressive rights contained in the Bill of Rights and executive, the legislature and the judici- measures towards realising affording all citizens the equal protec- ary have combined their efforts by put- the rights contained in the Bill tion and benefit of the law. More perti- ting measures in place, as well as institu- of Rights. The Bill of Rights nent, the State must endeavour to elimi- tions and programmes with the objective Tis a cornerstone of democracy in South nate the obstructions inhibiting access of broadening access to justice. The Le- Africa, which enshrines the right of all to justice and in particular, those diffi- gal Practice Bill (the Bill) is a product of citizens to access courts as stipulated in culties which impede the poor, illiterate the continued collaboration between the s 34 of the Constitution. The State is en- and indigent. three branches of State and ultimately

DE REBUS – OCTOBER 2014 - 37 - FEATURE a progressive measure taken to amplify allowed to take instructions direct from access to justice by the ordinary citizen. the client. In practice it is rare that attor- ‘Clause 34 of the Bill allows neys will appear in the High Court and The Legal Practice Bill an advocate to render legal may prefer rather to brief advocates to The Bill was passed by the National As- services in expectation of a appear on their behalf. sembly on 12 March 2014 and at the time Members of IAASA believe that the of writing this article it was before the fee, commission, gain or existence of a dual profession merely Presidential office for signing. The Bill is reward, on receipt of a perpetuates an unnecessary financial an example of how government, through burden, which is borne by the client and the use of legislation, aims to enhance request direct from a results in the duplication of costs and, access to justice by giving effect to the member of the public for therefore, supported fusion of the legal transformational imperatives envisaged that service, if that advo- profession. They believe that the inclu- by the Constitution. sion of clause 34 protects advocates and In its present form, it creates a frame- cate is in possession of a citizens from undue exploitation. In its work, which allows for the implementa- Fidelity Fund certificate. ’ submissions, IAASA was of the view that tion of various mechanisms to broaden the following instances dictate that an and amplify access to justice. One of the advocate should be briefed direct by the public: All criminal matters, specialised key objectives for the introduction of the titioners with Fidelity Fund certificates areas of legal advice, opinions, drafting Bill is to augment access to affordable and legal practitioners who work on a re- of complicated contracts, drafting of legal services which is a continuation of ferral basis only, ultimately keeping the wills, drafting of memoranda of incorpo- efforts of the legislature to realise the distinction between the two professions ration, matters concerning the Consum- ideal of a legal system which affords all unblurred, although both would be regu- er Protection Act 68 of 2008, arbitration citizens equal opportunities to exercise lated by one body – the LPC. The GCB and mediation, maintenance matters et- their right to access justice. was of the view that advocates had no cetera. IAASA further proposed that all interest in the regulatory affairs and ad- legal practitioners should have compul- Advocates permitted to ministrative affairs of the attorneys’ pro- sory indemnity insurance. accept instruction direct fession and vice versa. Members of GCB from the public appeared to agree that they had chosen Community service to become advocates to avoid the admin- Clause 34 of the Bill allows an advocate istrative burden carried by attorneys, Clause 29 of the Bill provides that the to render legal services in expectation namely, dealing direct with the client, Minister must, after consultation with of a fee, commission, gain or reward, on applying for a Fidelity Fund certificate, the LPC, prescribe the requirements for receipt of a request direct from a mem- operating a trust account and employing community service. Community service ber of the public for that service, if that the services of an accountant or auditor may be a component of practical voca- advocate is in possession of a Fidelity to keep proper accounting records. tional training (articles) or a minimum Fund certificate. This provision seems Members of the GCB appear positive period of recurring service by legal prac- to eradicate the traditional distinction that the relationship between advocates titioners on which continued enrolment between an advocate and attorney, and and attorneys will not feel the impact as a legal practitioner is dependant. members of the public will no longer of the elimination of the distinction, Community service may, among others, be required to use the services of an at- and that attorneys will continue to brief include the provision of legal education torney prior to engaging an advocate as them, as the referral system is a system and training on behalf of the LPC, ser- they will have the choice of approaching that has been effective to this day. It is vice without remuneration, as a judicial either legal professional. Attorneys will in the interests of the public that advo- officer in the case of legal practition- no longer necessarily play the middle- cates and attorneys work together and ers, service at the South African Human man between members of public and not in competition. The GCB is of the Rights Commission and service in the advocates, who are engaged to argue on view that the so-called ‘rebel’ advocates State, approved by the Minister in con- their behalf. who deal directly with the public by side- sultation with the LPC. In the same vein, The Law Society of South Africa (LSSA) lining attorneys could end up costing cli- legal practitioners, as well as candidate initially submitted that if the advocates’ ents more, for instance if the advocate legal practitioners may be exempt from profession is to be kept a referral pro- charges his or her hourly rate to index community service on application and fession, advocates should not accept in- and paginate the court file in prepara- good cause shown. structions (briefs) direct from the public, tion for trial. Clause 27 allows the LPC to create except with the approval of the Legal The Centre for Law and Society was of rules in respect of payment of remunera- Practice Council (LPC). It further sub- the view that advocates and attorneys tion, allowances or stipends to all candi- mitted that such approval should only deliver different services and need dif- date legal practitioners. Future candidate be given in appropriate circumstances ferent qualifications. As a general rule, where it is in the interests of public, in attorneys are regarded as general practi- this way hoping to avoid irregularities, tioners, while advocates are regarded as which had occurred in the past through specialists in particular fields of law. It ‘The Bill, in its present unregulated advocates taking instruc- is for this reason that it is often argued form, creates a framework, tions from the public. that fusion of the legal profession will In 2012 as a result of a meeting be- result in the loss of expertise in special- which allows for the tween the LSSA and the General Council ist fields. implementation of various of the Bar of South Africa (GCB) the two The Independent Association of Ad- mechanisms to broaden branches of the profession agreed that vocates of South Africa (IAASA) – now there should be a unified profession, but called the National Bar Council of South and amplify access not a fusion. Also, the two branches of Africa – believes that since attorneys to justice. ’ the profession should remain separate secured the right to appear in the High and independent, allowing for legal prac- Court, it was only fair that advocates be

DE REBUS – OCTOBER 2014 - 38 - supervision and remuneration of candi- date legal practitioners, similar to the ‘Community service may, compulsory service year in the medical among others, include the profession. The period of one year may provision of legal education seem excessive, but for purposes of con- tinuity it remains reasonable, although and training on behalf of the many matters take longer than a year to LPC, service without reach finalisation. The effectiveness of compulsory com- remuneration, as a judicial munity service will depend heavily on officer in the case of legal how it is implemented and how the re- practitioners, service at the sources to fund the supervision of com- munity service are found. South African Human Rights One of the major debates that has oc- Commission and service in cupied members of the legal profession has been whether, in pursuing communi- the State, approved by the ty service as a strategy for expanding ac- Minister in consultation cess to justice, a voluntary or mandatory with the LPC. ’ system should be adopted. A mixed sys- tem may possibly offer the best solution, similar to a carrot and stick approach. legal practitioners fear that they will not Incentives are used in all industries and be compensated for community service professions to motivate and compel and in that event will be unable to sup- members to participate in activities that port themselves and their families. benefit the less fortunate and uplift the It is interesting to note that advocates community. A mixed system – where a are included in the definition of legal minimum is prescribed and incentives practitioners and accordingly will have are put in place to motivate members of to undertake community service. The the legal fraternity to go beyond what is intentions of the legislature in providing required of them – may potentially yield for the implementation of community fruitful results, more so than a compul- service as a requirement to be admitted sory system. or to continue to practise are laudable in Academics feel that law students that it is directed at providing countless should be subjected to community ser- people, who could otherwise not afford vice in their final year of study. The pro- legal services, with access to justice. gramme at Nelson Mandela Metropolitan It is necessary to consider the ethics University expects final-year law stu- and implications of compulsory com- dents to present a minimum of ten street munity service and how to balance the law lessons to high school pupils over a right to access justice and the need to period of six months and thereafter to ensure quality legal services for those attend the law clinic or Rights Refugee who desperately need it. The question Centre for a period of six months. Both is raised whether it is ethical to require programmes are appropriately super- fresh law graduates, who have not yet vised and law students gain valuable qualified as attorneys and who have lim- knowledge and practical experience. ited practical experience, to give legal After such programmes, law students advice? What mechanisms will be imple- could apply to be exempt from commu- mented to monitor the quality of the le- nity service during their vocational train- gal services delivered, how will the hours ing programme as this may constitute for community service be captured and good cause for exemption. by whom? Seasoned legal practitioners The notion of community service has believe that, given law students’ cur- been welcomed by members of the legal rent legal education which affords them profession but how it will be imposed is limited exposure to the law in practice, uncertain and how it will be regulated is it would be unethical for them to per- worrisome. form community service, because as it Generally, I believe that fusion of the stands, they are ill-equipped to give any legal profession is nonsensical and both form of legal advice. Candidate legal professions working together offer in- practitioners could rather be involved in dependent, valuable and indispensible educational programmes focussing on services to members of the public which citizen’s rights and the exercise of those will result in access to justice becoming rights. a reality. Most law students are of the view that community service will go a long way in developing socially conscious legal grad- uates who understand the law in light of the vision of the Constitution and the goals of transformation. They have sug- Jacques Halbert BCom LLB (NMMU) gested that a one-year community legal is a candidate attorney at Rushmere service programme be implemented and Noach Inc in Port Elizabeth. structured to provide for the placement, q

DE REBUS – OCTOBER 2014 - 39 - Picture source: Gallo Images/Thinkstock Gallo source: Picture

By Gerhard Buchner

lause 35 of the Legal Practice The party-and-party tariffs prescribed petent an attorney may be the bigger the Bill (the Bill) will lead to the by the Minister for litigious matters, bill of costs he or she can possibly pro- close scrutiny of the charg- have always been viewed with great duce. ing of legal fees by attorneys scepticism by most members of the at- The question may therefore be asked: and advocates, as well as the torneys’ profession. Where the tariffs Is there a more practical basis for the cal- Ccriteria used for calculating them by the fall short, the short-fall is simply made culating or costing of legal services? professions and officialdom. up by charging attorney-and-client fees. In my opinion there is. Anxiety was expressed in this regard Everyone will probably agree that tar- Some years ago American clients began by a number of prominent members of iffs have very little to do with the reality to question hourly billing rates charged the advocates’ and attorneys’ profes- of running a legal practice and the actual by their attorneys. This resulted in the sions in the August issue of De Rebus in costs of rendering a legal service to the appearance of the so-called ‘value billing the article ‘The LPB, costs and fees scru- client. or alternative fee arrangements – AFA’s’ tinised at LSNP workshop’ (2014 (Aug) Ironically, it is also true, as is pointed as an alternative method for charging le- DR 6). out in the article, that the more incom- gal fees instead of hourly rates.

DE REBUS – OCTOBER 2014 - 40 - FEATURE

The charging of hourly rates is prob- • Prepare an expense budget for the firm write and collect monthly to pay his or lematic in that a client, more often than covering a 12-month period. It must in- her own way in the firm. not, has no idea what the service will clude all the usual expenses such as of- cost at the taking of instructions. To fice rent, leases on equipment, station- Alternative fee quote CP Fourie in the above-mentioned ery, library, auditors, telephone costs arrangements or article: ‘Would you engage the services etcetera, including all staff salaries plus value billing of someone who cannot tell you what a monthly salary for the partner. Although the break-even hourly rate is a something is going to cost you because • From the total expenses, deduct the hypothetical calculation, it does give the they do not know how long it will take? total of all the salaries that have been firm some basis for the charging of fees You too would be afraid, because you do budgeted for (the expense budget with- instead of doing it on unrealistic govern- not know what it will cost you.’ In my out salaries). ment tariffs or attorney-and-client fee opinion nothing has damaged the image • To this balance, after deduction of all estimates based on totally subjective of the legal profession more than this. salaries including those for the partner, criteria. ‘Value billing’ is an attempt to calcu- add back the salaries of all the staff that When the break-even hourly rate, as late the cost of the service to the client provide services in common to all the fee calculated above, is used to bill, it will in advance and to give the client, at the earners, such as kitchen staff and clean- cover only the break-even costs of the time of the taking of instructions, a fair- ers, the bookkeeper, the receptionist, the practising fee earner, but it does not pro- ly accurate estimate of the costs of the messenger, filing clerks – if there is cen- vide for any profit. service to be rendered subject to certain tral filing – a driver or whoever else. It is easy to add a profit margin to this conditions. • The total of these expenses which have hourly rate by increasing it percentage But how can the costs of the service be been added together must now be di- wise, namely, by adding 50% or 100% or calculated in advance to be able to pre- vided by the number of fee earners, in whatever is decided on. sent a client with a fairly accurate esti- this instance, two. You now have a fig- A different rate could be calculated mate of what the charges will be? ure representing the fee earners’ share for any particular instruction, depend- The first step is to calculate the of the annual expenses, namely, the fee ing on its complexity and the client’s number of possible billable hours earners’ annual budgeted administration willingness and ability to pay, as long as per annum as follows: contribution. the break-even hourly rate is used as the basis for doing the calculation. • From the 365 days in the year, de- The next step is to calculate the fee These calculations must then be used duct the number of days representing earners’ break-even hourly rate as to enter into a fee agreement with the cli- all weekends and public holidays. This follows: ent in respect of the particular service to leaves the number of working days dur- • To the fee earners’ annual administra- be rendered by the attorney. ing the year. tion contribution, as calculated above, For the successful implementation • Thereafter, deduct a further number must now be added the annually budg- of value billing it is very necessary that of working days to provide for annual eted salaries peculiar to that fee earner’s a fairly accurate estimate is made at leave, namely, 15 working days (three department (cost centre). For example, the outset of the number of hours that weeks holiday) or as many days leave as the PA may have two secretaries work- would be needed to complete a matter you wish to take. ing for him or her exclusively and the on behalf of a client. This is not as dif- • Deduct a further five working days to department may have its own filing clerk ficult as it may first appear. provide for absence from work due to that is dedicated to work for that depart- To estimate the average number of possible illness. ment only. The PA’s own annual budg- hours needed to finalise an undefended One should then have approximately eted salary plus those of the dedicated divorce action would be fairly easy if one 240 working days for the year. This is staff are now added to his or her admin- has experience of this type of matter. the figure used for the calculations in istration contribution. The same is done (A fee agreed with counsel beforehand this example. in respect of each other fee earner, in our must always form part of the fee esti- It is estimated that the average num- example, the partner. mate.) The same could apply to the cost- ber of billable hours an attorney can • Each of the fee earner totals, admin- ing of a defended litigation matter. Once achieve during a normal working day istration contribution plus salaries of you have experience of such matters, a is approximately five hours on average. dedicated staff as set out above, is now projected time allocation for the differ- This means of the 240 working days re- divided by 1 200, being the number of ent stages of the trial, should not be all ferred to above, a fee earner will have an estimated annual billable hours calcu- that difficult to estimate. average of 1 200 billable hours per an- lated. Using an appropriate hourly rate that num. • The figure that has thus been calculat- you have decided on you should be able The next step is to calculate an ed is, therefore, an estimate of what the to calculate an estimated fee for the cli- fee earner should earn per hour during ent to agree to for every stage of the liti- administration contribution the course of the year to pay his or her gation. Remember also to get your coun- per fee earner as follows: own salary and to cover the expenses al- sel to agree on an estimate of his or her It is important to remember that in this located to his or her department. This is fees so that provision can be made for context a ‘fee earner’ is also any staff referred to as the fee earner’s break-even this in your estimate to the client. Below member that deals directly with the cli- hourly rate. is an example of an architect’s pre-esti- ents of the firm, and debits his or her A monthly fee target for the fee earner mated bill which was rendered to a client own fees for work done. A litigation pro- based on the value of the number of bill- as part of a fee arrangement at the time fessional assistant (PA) or conveyancing able hours for his or her department dur- of the engagement of his services. paralegal are examples. ing the month can now easily be calcu- ‘We have broken the services down To illustrate how the administration lated. It is done by multiplying the total into the seven architectural stages of contribution per fee earner is calculated, break-even hourly rate for one day (five work. These are as follows: I will use an example of a firm with only hours) by 20 (working days per month) • Stage 1: Measuring up existing. R 7 750 two fee earners, which could be a partner to provide the monthly fee target for the for delivery of as‐built plans. and a litigation PA. The calculation is as fee earner. This represents the minimum • Stage 2: Sketch design. R 9 500 on ap- follows: amount of fees that the fee earner has to proval of concept.

DE REBUS – OCTOBER 2014 - 41 - FEATURE

• Stage 3: Design development. R 10 750 engagement should always be an esti- also be clearly set out in your engage- for detailed design drawings. mate and not a quotation. If you quote a ment letter and must be explained to the • Stage 4: Municipal submission. R 21 fee and the client accepts, you are bound client at the initial consultation. 560 (for submission to council). by it. A fee estimate must always be con- You must also ensure that your cli- • Stage 5: Municipal approval. R 7 190. ditional on the right of revision should ent accepts the terms and conditions set • Stage 6: Supervision of construction. unforeseen complications arise during forth in your initial engagement letter by A base fee R 2 000 per month for one the course of the matter. This could be requesting a written confirmatory reply visit per week. caused by unforeseen complications that to it. Although this method of agreeing fees • Stage 7: Collect the builder’s guaran- will result in much more time having to with your client up front can be criti- tees. Close the contract. be spent on the matter than originally cised, it should be more advantageous Note: Any additional services will be estimated. There is always a possibility than a complete thumb suck based on a charged at R 250 per hour. that something unforeseen can happen number of subjective criteria. Disbursements: Travel charged at R 4,50 during the course of litigation. Your cli- The only possible way of making the per km. Printing is cost + 10%’. ent must not be under any illusion about civil courts more accessible to the gen- Once you have counsel also co-operat- this. You must incorporate a clearly eral public, in my opinion, would be to ing with you by giving a fee estimate for worded ‘escape clause’ in your engage- introduce a contingency fee system akin the various stages of the matter, it would ment letter and your client’s attention to the American system as is propagated be a fairly simple matter to calculate an must be drawn to this during the taking by CP Fourie in the De Rebus article, but upfront fee estimate to present to your of your initial instructions*. subject to certain legislative constraints. client. This fee estimate must be set out • You must debit fees for every stage of clearly in your engagement letter which the case as soon as the stage has been must be presented to your client at or completed. * See 2014 (Sept) DR 24 for more infor- shortly after the initial stage of the tak- Where you have difficulty in obtaining mation on engagement letters. ing of instructions. payment from your client you must ad- There are two aspects regarding this vise your client in writing that no further Gerhard Buchner BA LLB (Stellen- procedure that you should be very atten- work will be undertaken in respect of bosch) is an attorney at Gerhard Bu- tive to: the matter, until such time as you have chner Attorney in Johannesburg. • The fees you mention in your letter of received payment. This condition must q

Book review Taxation of Legal Costs in South Africa

f all the books currently available vide practical tips and helpful hints to By Rochelle Francis-Subbiah on legal costs, this book provides legal practitioners. Cape Town: Juta Oclear and practical guidance on This book, in my view, is of equal ben- the taxation of costs. efit to all legal practitioners – irrespec- (2013) 1st edition The author has gone to great lengths tive of seniority – judicial officers or Price: R 550 (incl VAT) to assist and guide the reader in ap- even members of the public who wish to 442 pages (soft cover) proaching and determining reasonable acquaint themselves with the legal prin- costs in accordance with the existing ciples applied in the taxation of legal rules and tariffs. Although it is com- costs. In recent times there has been an mon knowledge that taxation entails the increasing public interest in the compu- quantification of legal costs, there is still tation of legal costs and how such costs much debate on the underlying applica- are taxed and assessed. In my view, this ble principles in preparing the different book is an invaluable tool for persons to kinds of bills of costs and the taxation acquaint themselves with the legal prin- of these. This is where the book excels ciples of the taxation of legal costs. in explaining the processes of taxation The book contains extracts from ap- on a step-by-step basis so that the user plicable legislation and cases. In doing may arrive at taxed fees and costs that so, the main aim is to assist practition- are reasonable. ers who practise mainly as costs con- The book identifies the main elements sultants. The book succeeds in doing of taxation. The author deals in detail just that. In setting out all the practi- with and explains the practices, rules, cal steps of taxations of bills of costs – tariffs and judgments, as well as the which include taxation in general, attor- discretion of the taxing master and the ney’s costs and alternative methods to The book is without doubt a useful principles relied on in reviewing taxa- taxation, parties at taxation, process of aid for all those concerned with taxation tions. The book contains an analysis of taxation, the role of the taxing master in of legal costs. The author is to be com- the maximum tariffs that legal practi- general and his or her discretion, reviews mended for the meticulous attention tioners may charge and practical alterna- of taxations etcetera – the author high- paid to the table of contents, index, bibli- tives for solutions to specific issues that lights the consequences that flow from ography and schedule of case references, arise in practice. It is commendable that these. Case studies are included and the and the arrangement of these. the author has invested enormous ef- importance of how bills are prepared is Sophia Avvakoumides is an attorney fort in achieving the intended aim, which stressed and that the latter should not at Sophia Avvakoumides Attorney in is to make the law on taxation of legal be taken lightly, even by the more expe- Pretoria. costs easier to understand and to pro- rienced legal costs consultant. q

DE REBUS – OCTOBER 2014 - 42 - LAW REPORTS THE LAW REPORTS

August 2014 (4) The South African Law Reports (pp 319 – 636); [2014] 3 The All South African Law Reports July no 1 (pp 1 – 114); and no 2 (pp 115 – 257); 2014 (5) Butterworths Constitutional Law Re- ports May (pp 511 – 640); 2014 (6) June (pp 641 – 739); and 2014 (8) August (pp 869 – 995)

This column discusses judgments as and when they are published in the South African Law Re- David Matlala BProc (University of ports, the All South African Law Reports and the South African Criminal Law Reports. Readers the North) LLB (Wits) LLM (UCT) should note that some reported judgments may have been overruled or overturned on appeal LLM (Harvard) HDip Tax Law or have an appeal pending against them: Readers should not rely on a judgment discussed here (Wits) is an adjunct professor of without checking on that possibility – Editor. law at the University of Fort Hare.

Abbreviations 626 (SCA) apart from the pro- the appeal, contending that cretion on the court. There- visions of the section, there as the issue of attachment of fore, depending on the facts CC: Constitutional Court were two other grounds on a credit agreement was likely of each case, while the parties GJ: Gauteng Local Division, which the appeal could be dis- to arise frequently, its deter- could have resolved all their Johannesburg missed. The appellant, Absa mination had practical effect differences, a court of appeal GP: Gauteng Division, Preto- Bank, sued the respondents, or result. could still entertain the mer- ria Van Rensburg and another, The appeal, which was not its of the appeal if, for exam- KZD: KwaZulu-Natal Local Di- for moneys owing in terms opposed by the respondents, ple, important questions of vision, Durban of secured loans. The appel- was struck off the roll. The law which were likely to arise KZP: KwaZulu Natal Division, lant attached mortgage loans SCA, per Maya JA (Shongwe, frequently were at issue and Pietermaritzburg and deeds of suretyship to its Saldulker JJA and Mathopo their determination could SCA: Supreme Court of Appeal simple summons against the AJA concurring while Leach benefit others. WCC: Western Cape Division, respondents but not the un- JA filed a separate concurring In the instant case a de- Cape Town derlying credit agreements. judgment), held that the pro- termination as to whether a Holding that it was necessary visions of s 21A(1) set a di- credit agreement had to be Appeal to have attached the underly- rect and positive test, namely, attached to a simple sum- An appeal must have practi- ing credit agreements as well, whether the judgment or or- mons could be made by the cal effect or result: Section the full Bench of the WCC der would have a practical ef- Rules Board for Court of Law, 21A(1) of the Supreme Court (Griesel, Fourie and Saldanha fect or result and not whether established in terms of the Act 59 of 1959 (the Act, which JJ) postponed the application it could be of importance in a Rules Board for Courts of Law has since been repealed by for default judgment so that hypothetical future case. As a Act 107 of 1985, which had the Superior Courts Act 10 the appellant could amend result a court would not make the power to make, amend or of 2013) provided that if the the papers and attach the determination on issues that repeal the Uniform Rules of issues in an appeal were of credit agreements. The ap- were otherwise moot merely Court. Furthermore, the ef- ‘such a nature that the judg- pellant appealed against that because the parties believed fect of an order postponing ment or order sought would order. In the meantime, the that, although the decision or the hearing of an application have no practical effect or re- matters were settled between order would have no practical for default judgment in or- sult, the appeal could be dis- the parties, with the result result between them, a prac- der to give the appellant the missed on that ground alone’. that there was nothing left to tical result could be achieved opportunity to take further In Absa Bank Ltd v Van Rens- appeal against. Nevertheless in other respects. However, steps to augment its case, burg and Another 2014 (4) SA the appellant persisted with the section conferred a dis- was merely a direction from

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DE REBUS – OCTOBER 2014 - 43 - LAW REPORTS the court as to the manner when it had been shown that the plan, but before its imple- fact that adoption of a busi- in which the matter was to the High Court or the SCA did mentation, the plaintiff in- ness rescue plan as such did proceed before the main ac- not provide a proper urgent stituted proceedings against not affect a creditor’s rights tion could be entered into. It procedure which could result the defendants to recover the against the surety. It all de- neither amounted to a refusal in the relief pursued by an ap- part of the debt that could not pends on an application of of default judgment nor had plicant. The question whether be recovered from the compa- the general principles of the a direct bearing on or dispose a particular interim order was ny and applied for summary law of suretyship to the actu- of any of the issues in the appealable was not novel. The judgment. The application al provisions of the business main action and was thus not applicable test was whether for summary judgment was rescue plan. a dismissal of the appellant’s hearing the appeal served the dismissed with costs and the action. interests of justice. In making defendant granted leave to Security for costs: Section 13 that determination the court defend. of the repealed Companies Urgent application for ap- had to weigh all relevant cir- Rogers J held that a deed of Act 61 of 1973 provided that, peal against interim order: In cumstances carefully. In the suretyship could provide that where a company or other South African Informal Trad- instant case it was in the in- the claim against the surety body corporate was the plain- ers Forum and Others v City terests of justice to hear the would survive a compromise tiff in any legal proceedings of Johannesburg and Others appeal on an urgent basis. with the principal debtor. the court could, at any stage, 2014 (4) SA 371 (CC); 2014 If leave to appeal were not The instant case was, how- if it appeared by credible tes- (6) BCLR 726 (CC), the appli- granted the applicants would ever, not one such case as the timony that there was reason cants bringing an urgent ap- suffer severe irreparable sureties’ debts had been dis- to believe that the company plication for leave to appeal harm and yet the balance of charged. If the principal debt or body corporate would be against an interim order were convenience favoured them. was discharged by a compro- unable to pay the costs of the informal traders in the City of The order sought by the ap- mise with or release of the defendant if it was successful Johannesburg, the city, who plicants would not anticipate principal debtor, the surety in its defence, require suffi- were joined by two associa- any part of the main proceed- was released unless the deed cient security to be given for tions representing traders’ in- ings to be determined before of suretyship provided other- those costs and could stay terests. The application to the the High Court in normal mo- wise, which was not the posi- all proceedings until the se- CC was launched after the GJ tion proceedings, nor would tion in the instant case. This curity was given. The Com- per Monama J struck an ur- it prejudice such proceed- general principle also applied panies Act 71 of 2008 does gent application for interim ings. On the contrary, without to a compromise or release not have similar provisions. relief against the city and its such an urgent interim order pursuant to a statute, unless Therefore, the question which functionaries off the roll on from the CC, damage to the such statute provided other- arises is whether a court can the ground that it was not applicants in the interim pe- wise. order that security for costs urgent. That meant that the riod would be so severe that Accordingly, if a business be furnished if the defendant application had to be placed their ability to obtain relief rescue plan provided for the asks for it against a plaintiff on the ordinary motion roll from the High Court would discharge of the principal company that appears not to and would be heard a few substantially be rendered debt by way of a release of be in a position to pay costs months later. The applicants nugatory. The order sought the principal debtor, and the if proceedings against the de- were street vendors who had in the instant case was no claim against the surety was fendant were to founder. permission to ply their trade. more than a ‘status quo or- not preserved by such stipu- In Boost Sports Africa (Pty) However, in October 2013 der’ granted in the interest of lations in the plan as would Ltd v South African Brewer- the mayor of the city issued justice to prevent what could be legally permissible, the ies Ltd 2014 (4) SA 343 (GP) instructions to metro police otherwise be substantial prej- surety was discharged. In the the plaintiff company, Boost to remove the applicants udice to the applicants. instant case the business res- Sports, instituted proceed- from the stalls and confiscate • See also 2014 (Aug) DR 25. cue plan was reasonably to ings against the defendant, their goods. As a result nego- be construed as one by which South African Breweries, for tiations followed, agreement Companies the company, as principal damages for breach of con- was reached and the traders debtor, had been discharged tract and, in the alternative, were required to be verified In the absence of a provision from its liability to the plain- for payment of a licence fee. and reregistered, which was to the contrary business res- tiff. Since the position of That was after the defend- done. This notwithstanding, cue plan discharges liability sureties for the company was ants allegedly used confi- the metro police continued to of a surety: In Tuning Fork not addressed in the plan, the dential information provided prevent the traders from car- (Pty) Ltd t/a Balanced Audio v defendants, as sureties, had by the plaintiff to exploit an rying on their trade. An appli- Greeff and Another 2014 (4) on this construction of the advertising concept known cation for urgent interim re- SA 521 (WCC); [2014] 3 All SA plan been discharged. as ‘Fans’ Challenge Sport’ in lief against the conduct of the 500 (WCC), the defendants, Because the obligation of which fans of a football club respondents was, as already Greeff and another, were di- a surety was accessory, the would vote for a team to take indicated, struck off the roll rectors of a certain company general position was that part in a friendly game and for lack of urgency. Hence the for whose debts they stood extinction of the principal the substitutions to be made. present direct appeal to the surety. After the company obligation extinguished the The defendant pleaded that CC. encountered financial prob- obligation of the surety. there was no such contract The court granted leave to lems it was put under busi- Apart from the obvious case and that the concept did not appeal and upheld the ap- ness rescue and a business of discharge following pay- contain confidential informa- peal itself with costs. Reading rescue plan was adopted. The ment in full by the principal tion as it lay in the public do- a unanimous decision of the plan provided that concur- debtor, the rule found appli- main. court, Moseneke ACJ, held rent creditors – the plaintiff, cation, for example, where Fairly late in the proceed- that as a general rule, an ur- Turning Fork being one of the principal debt was dis- ings, and after the plaintiff gent appeal to the CC against them – would receive 28% of charged by settlement or was had made discovery of the an interim order would be their debt in ‘full and final’ extinguished by prescription. documents it intended us- permitted as a last resort and settlement. After adoption of The court emphasised the ing at the trial, the defendant

DE REBUS – OCTOBER 2014 - 44 - LAW REPORTS established that the plaintiff brought to court to defend a upheld with costs by the SCA. (the NCA) provides, among was in financial difficulty and vexatious or unmeritorious Mthiyane DP (Lewis, Bosielo, others, that when the con- would not be able to pay the claim. A defendant’s right to Petse and Willis JJA concur- sumer is in arrears, the credit costs if a costs order were claim security stemmed from ring) held that in the present provider must give the con- made against it. As a result the court’s inherent jurisdic- matter the first appellant, sumer notice of the default the defendant applied for an tion to regulate its own pro- the district municipality, had and various measures that order directing the plaintiff to cess and prevent abuse by commissioned a firm of con- may be taken to resolve the furnish security for its costs. discouraging vexatious or un- sulting engineers to conduct a default before instituting le- The plaintiff candidly admit- meritorious claims by order- study which would ultimately gal proceedings to enforce ted that it was not in a posi- ing a plaintiff to file security. lead to rehabilitation of the payment. Section 130 pro- tion to pay the defendant’s Where litigants were com- entire reticulation system in vides that if proceedings are costs if it were to lose the pelled to litigate, whether as the affected area. In doing instituted without compliance case, but contended that in plaintiffs or defendants, they so, the municipality was per- with s 129 the court must ad- terms of the Companies Act should as a matter of fairness forming an executive func- journ the proceedings so that of 2008 there was no obliga- and reasonableness be in- tion and the order of the High there may be compliance. tion on it to furnish security. demnified against the costs of Court, which had the effect of In Investec Bank Ltd t/a In- Hassim AJ granted with pursuing or defending unsuc- fast-tracking the process, of- vestec Private Bank v Ramu- costs, an order requiring cessful proceedings. It would fended against the doctrine runzi 2014 (4) SA 394 (SCA); the plaintiff to furnish secu- neither be just nor equitable of separation of powers and [2014] 3 All SA 34 (SCA) the rity for the defendant’s legal for a plaintiff company with the legal framework within appellant, Investec Bank, gave costs, the form, amount and doubtful financial strength to which the municipality was the respondent, Ramurunzi, manner was left to the reg- litigate with impunity. working. The measures taken the required s 129 notice be- istrar of the court to deter- to address the problem of fore instituting legal proceed- mine. The court also ordered Constitutional law water leakages and shortages ings. The respondent con- a stay of proceedings until Separation of power between occurred in the course of the tended that he did not receive such security was provided the executive and judiciary: municipalities’ exercise of its the notice as he had changed within 20 days, failing which In Capricorn District Munici- executive powers. his address. As a result, the the defendant was granted pality and Another v South The High Court also erred proceedings were adjourned leave to apply for the action African National Civic Organ- in respect of the imposition for service of a new s 129 no- to be dismissed. The court isation 2014 (4) SA 335 (SCA), of the flat rates. In terms of tice. By that time, the period held that it had unfettered residents of Lebowakgomo s 74(1) and (2) of the Local of three years for the running discretion to decide applica- Zone A in Limpopo experi- Government: Municipal Sys- of prescription had lapsed. tions for security. Even if the enced water shortages due to tems Act 32 of 2000 (the Act) The issue before the court defendant demonstrated that ageing infrastructure and in- a municipality was obliged to was whether a summons is- the plaintiff company would accurate water statement ac- adopt and implement a tar- sued and served before de- not be able to pay an adverse counts. The water pipes were iff policy on the levying of livery of a s 129 notice was costs order the court had, leaking and water meters not fees for municipal services, valid and thus interrupted in the exercise of its discre- functioning properly. It was including water, taking into prescription. The WCC held, tion, to carry out a balanc- also alleged that far from tak- account, among others, that per Savage AJ, that the sum- ing exercise, weighing on the ing meter readings, employ- consumers paid for services mons was not valid and had one hand the injustice to the ees of the second appellant, in proportion to their use of not interrupted the running plaintiff if it were prevented Lepelle-Nkumbi Municipality, that service and that the tar- of prescription. An appeal from pursuing a proper claim were merely making estima- iff had to reflect the costs against the High Court order by an order for security, and tion of water consumed and reasonably associated with was upheld with costs. on the other hand, the injus- as a result prepared inflated the rendering of service, in- The SCA held per Lewis JA tice to the defendant if no se- water billing accounts. cluding capital, operating (Ponnan, Bosielo, Saldulker curity was ordered. This being the position the maintenance, administration JJA and Mocumie AJA con- Some of the factors that a respondent civic organisation, and replacement costs. It was curring) that service of sum- court would have regard to the South African National therefore clear that the High mons on the respondent when deciding an application Civic Organisation (SANCO), Court order flew in the face interrupted the running of for security for costs included acting on behalf of the resi- of the above provisions of the prescription. Section 130(4) questions going to the merits dents of Zone A, sought a Act. The orders imposing a was unusual as it required a of the claim and the late stage High Court order mandating flat rate for water consump- court to pause (adjourn) the at which the application was the appellants – Capricorn tion were completely out of proceedings so that the ser- made. District Municipality and the kilter with the foundational vice provider could give the The common law did not local municipality, Lepelle- principles of our constitu- consumer the benefit of no- afford defendants the right to Nkumbi – to repair or replace tional order as articulated by tice as to his or her options, demand security from an in- the water pipes and install the courts and with the ap- a notice that should ordinar- cola (resident) plaintiff com- new water meters within a plicable legal framework, and ily have been given before pany. With the repeal of s 13 period of 12 months. During were thus not competent. the summons was issued and of the Companies Act, 1973 that period the residents were served. Thus the proceedings by the Companies Act, 2008 to pay a flat monthly rate of Consumer credit had a life and were not void plaintiff companies were once R 70 per household or busi- despite the absence of a s 129 again immune to a demand ness unit, which amount was agreements notice. The very fact that a for security for costs. The later to reduce to R 50 per Validity of summons issued court had to make an order absence of a statutory right month, irrespective of the and served without compli- as to how proceedings were did not deprive a defendant amount of water consumed. ance with s 129(1)(b) of the to be continued indicated of the right to demand secu- The GP per Legodi J granted National Credit Act of 2005: the validity of the summons rity from an incola company the mandamus sought. An Section 129(1)(b) of the Na- rather than its nullity. The where the defendant was appeal against that order was tional Credit Act 34 of 2005 purpose of s 130(4) was to

DE REBUS – OCTOBER 2014 - 45 - Friday 31 October 2014 The Wanderers Club Johannesburg, South Africa BOOK YOUr TaBLE nOw For table bookings call Anthony Epega on +44 20 7316 9092, email [email protected] or book online at www.africanlegalawards.com

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ALA14_FP_Ad_DeRebus.indd 1 09/09/2014 13:42 Friday 31 October 2014 LAW REPORTS The Wanderers Club Johannesburg, South Africa ensure that even though sum- case was not that the assets Ideas, entered into a contract concurring in a separate judg- mons had been served, the ostensibly owned by the trust with the respondent, Hub- ment while Froneman J, with consumer was still provided were in truth the property of bard, to build her a house at Cameron J, Dambuza AJ and with a s 129 notice so that the plaintiff or that the trust a cost of some R 2,6 million. Van der Westhuizen J con- he or she knew what options was a sham. Had the defend- The problem was, however, curred in a dissenting judg- BOOK YOUr TaBLE nOw were available to resolve the ant pleaded that the assets that the applicant was not ment) held that the purpose matter before the debt could of the trust were in truth her registered as a home builder of the Housing Protection Act For table bookings call Anthony Epega on +44 20 7316 9092, be enforced. husband’s property, then her as required by s 10(1). Never- was to protect housing con- claim that those assets had to theless, the applicant entered sumers. The entire legislative email [email protected] or Divorce be taken into account in de- into a subcontract with V cor- scheme was predicated upon book online at www.africanlegalawards.com Amount of an accrual claim: termining the accrual of her poration, a registered home a building contract between a Section 4(1)(a) of the Matrimo- estate would have been in or- builder, which duly did the registered home builder and a nial Property Act 88 of 1984 der. However, the defendant’s construction of the house and housing consumer being con- (the MPA) provides, among case was that the trust assets payments were made as work cluded. The statute was not others, that ‘the accrual of should be taken into account progressed. capable of being construed the estate of a spouse is the in determining the accrual of In the meantime, the par- as permitting after-the-fact amount by which the net val- the plaintiff’s estate as he had ties entered into an arbitra- registration of a home build- ue of his estate at the dissolu- the power and ability to use tion agreement in terms of er when construction had tion of the marriage exceeds those assets for his sole ben- which any disputes would be already commenced or was HOSTED BY SpOnSOrED BY the net value of his estate at efit. The problem was that the referred to arbitration. After completed and the home the commencement of that amount of an accrual claim practical completion of the builder sought payment from marriage’. The application was determined on a factual work, the respondent refused the housing consumer. The of the section was dealt with and mathematical basis and to make final payment of protection was optimally in MM and Others v JM 2014 not as a matter of discre- R 550 000 citing the quality achieved in requiring registra- In aSSOcIaTIOn wITH (4) SA 384 (KZP) where the tion. What the spouse’s estate of elements of the building tion of home builders upfront plaintiff husband (MM) and consisted of was a factual in- works as her complaint, and and not during the course of the defendant wife (JM) were quiry. There was no warrant claimed payment of R 1,2 mil- or at the end of construction. married to each other out of in the MPA to have regard lion as the cost of remedial Registration should occur pri- community of property with to assets which did not form work. or to and not during or at the the accrual system. When the part of the estate of a spouse She referred the dispute end of construction. plaintiff sought a decree of on the basis that it would be to arbitration in which she The underlying building divorce, the defendant made just to do so. There was no sought payment for contrac- contract remained extant in a claim in reconvention in legal basis for an order that tual damages from the ap- order to render protection to which she claimed for an or- assets which in fact did not plicant. At that stage the ap- the consumer in respect of der directing the plaintiff to form part of the spouse’s es- plicant registered as a home what had already been erect- pay her an amount equal to tate should be deemed to be builder. The arbitrator found ed and to the home builder corporate 50% of the amount by which part thereof for the purposes in favour of the applicant for what had already been prIncIpaL SpOn SOr the accrual of his estate ex- of determining the accrual of and ordered the respon- received. The parties were counsel ceeded that of her estate. that estate. If the defendant dent to pay the outstanding therefore entitled to retain Forum The issue before the court had averred that the trust as- R 550 000. Relying on s 10(1), what had been done or given, africa was whether assets in a fam- sets in truth belonged to the the respondent refused to as the case might be. No res- ily trust should be taken into plaintiff, without challenging comply with the arbitration titution was legally tenable in account in the determination the validity of the trust, such award, contending that as the those circumstances as would Thursday 30 October 2014 of the accrual of the plain- a claim would not have been applicant had not been reg- have been the case with an tiff’s estate. That was so as excipiable. istered as a home builder at invalid agreement. In brief, Balalaika Hotel Sandton both parties were trustees the time of conclusion of the the underlying building con- Johannesburg, South africa and beneficiaries of the fam- Housing contract, it was not entitled tract remained valid and ex- ily trust although, over time, Protection of home consum- to payment. The applicant ap- tant. That was so even though the plaintiff took full control ers against unregistered proached the High Court and the home builder was in law of management of the trust builders: Section 10(1) of the obtained an order making the precluded from seeking con- and allegedly used it as his al- Housing Consumers Protec- arbitration award an order of sideration for the work done The annual meeting place for ter ego to benefit himself. The tion Measures Act 95 of 1998 court so that it could be en- due to its failure to register plaintiff and other trustees of (the Housing Protection Act) forced. The respondent ap- as a home builder prior to the the trust excepted to the de- provides that – pealed to the SCA which held commencement of the build- africa’s leading general counsel fendant’s claim in reconven- ‘no person shall that, while s 10 did not nul- ing works. tion on a number of grounds, (a) carry on the business of lify the contract between the but the main one was that a home builder; or parties, it nevertheless disen- Local government Reserve your place at www.ccf-africa.com, call Anthony Epega on the property belonging to (b) receive consideration in titled an unregistered home Division of powers between tel. +44 20 7316 9092 or email [email protected] the trust could not be taken terms of any agreement with builder from receiving con- provincial and municipal into account in determining a housing consumer in re- sideration. In other words, government: Section 44 of the value of the plaintiff’s ac- spect of the sale or construc- the contract was valid but the Land Use Planning Ordi- crual. tion of a home, unless that payment to the home builder nance 15 of 1985 (LUPO) of The main exception was person is a registered home in terms thereof could not be the Western Cape gives mu- SpOnSOrS SUppOrTIng O rganISaTIOn upheld and the defendant builder’. enforced. nicipalities planning powers granted leave to amend. The The application of the sec- The CC granted the appli- in the form of, among others, other many exceptions having tion was dealt with in Cool cant leave to appeal against making zoning and subdivi- failed, the plaintiff and other Ideas 1186 CC v Hubbard the decision of the SCA but sion of land-use within their trustees were ordered to and Another 2014 (4) SA 474 dismissed the appeal itself area of jurisdiction. However, www.ccf-africa.com pay costs. Ploos Van Amstel (CC); 2014 (8) BCLR 869 (CC), with costs. Reading the main an appeal against a decision J held that the defendant’s where the applicant, Cool judgment Majiedt AJ (Jafta J of the municipality lies with For sponsorship opportunities at The african Legal awards & corporate counsel Forum africa call Thomas pearson on +44 20 7316 9067 or email [email protected] DE REBUS – OCTOBER 2014 - 47 -

ALA14_FP_Ad_DeRebus.indd 1 09/09/2014 13:42 LAW REPORTS the relevant provincial Minis- Reading a unanimous deci- had confused and conflated Unlawful ter and not a person or body sion of the court, Cameron J the concepts in their found- within the municipality. In held that s 44 could not with- ing papers. Maladministra- occupation of land Minister of Local Government, stand constitutional scrutiny tion of an asset validly vested Environmental Affairs and as the provincial appellate ca- in a properly founded trust Direct and substantial inter- Development Planning, West- pability impermissibly usurp­- did not afford a legally cog- est in eviction proceedings: ern Cape v Habitat Council ed the power of local authori- nisable basis to contend that In Zulu and Others v eThek- and Others 2014 (4) SA 437 ties to manage municipal the trust did not exist, or that wini Municipality and Others (CC), 2014 (5) BCLR 591 (CC), planning and intruded on the asset no longer vested in 2014 (4) SA 590 (CC); 2014 the issue was the constitu- the autonomous sphere of the duly appointed trustees. (8) BCLR 971 (CC), the third tionality of s 44. Two cases authority which the Constitu- Thus, for the applicants to respondent, the MEC for Hu- were consolidated and heard tion accorded municipalities. be able to establish that the man Settlement and Public together. It also failed to recognise the property did not vest in the Works in KwaZulu-Natal – be- In the first case a certain distinctiveness of the mu- trust they had to prove that ing the owner of the affected company, Gordonia Proper- nicipal sphere. Municipalities the trust was a sham. Holding property – sought a court or- ties, sought approval from were responsible for zoning that a trust was a sham was der against the first respond- the City of Cape Town (the and subdivision decisions essentially a finding of fact. ent, the eThekwini Munici- city) to develop a residential while provinces were not. All Inherent in any determina- pality (Durban municipality) estate. When the city failed to municipal planning decisions tion that a trust was a sham and the second respondent, respond timeously the devel- that encompassed zoning had to be a finding that the the Minister of Police. The oper appealed to the appli- and subdivision, no matter requirements for the estab- appellants, Zulu and others, cant Minister of Local Govern- how big, lay within the com- lishment of a trust were not were unlawful occupiers of ment, Environmental Affairs petence of municipalities. met, or that the appearance the property and accordingly and Development Planning The constitutional scheme of having met them was in sought leave to intervene in who upheld the appeal and did not envisage the province reality a dissimulation. In the the proceedings. Leave was gave the company permission employing appellate power present case there was no rea- denied by the KZD per Kru- to rezone and subdivide the over municipalities’ exercise son to hold that the trust had ger J after which the MEC was property in terms of LUPO. of their planning functions. not been legitimately founded granted the order which pre- In the second case, a trust, That was so even where the or that the property had not vented invasion of the prop- Gera Investment Trust, zoning, subdivision or land- been validly vested in it. erty and also authorised evic- sought to redevelop a build- use permission had province- Going behind the form, on tion of unlawful occupiers. ing of historical significance wide implications. the other hand, entailed ac- Application for leave to ap- in the city centre of Cape cepting that the trust existed peal against denial of inter- Town. Special consent is re- Trusts but disregarding for given vention was rejected by the quired to redevelop historical Piercing the trust veneer purposes the ordinary con- High Court. So was a petition building, and faced with ob- where a trust is a sham or sequences of its existence. for leave to appeal rejected jections from the respondent, is used as an alter ego: In That could entail holding the by the SCA. However, the CC Habitat Council, a non-profit Van Zyl and Another NNO v trustees personally liable for upheld the appeal with costs organisation, the city refused Kaye NO and Others 2014 (4) an obligation ostensibly un- and granted the appellants the special consent. An ap- SA 452 (WCC), Kaye (K) was a dertaken in their capacity as leave to intervene. The order peal to the Minister was up- trustee of the JGN Trust, and trustees, or holding the trust of Kruger J having been an in- held and the trust given the a sole director of a company bound to transactions osten- terim interdict, the appellants required special consent. As a known as Bella Densel. After sibly undertaken by the trus- were accordingly in a position result the city instituted High sequestration of K’s estate, tees acting outside the limits to be heard on its return day. Court proceedings for an or- the provisional trustees ap- of their authority or legal ca- The argument of the re- der declaring s 44 unconsti- proached the High Court for pacity. Going behind the trust spondents was that, as the tutional and invalid. The or- an order declaring that the form or ‘piercing its veneer’, appellants were already in oc- der was granted by the WCC property of the trust and as the concept is sometimes cupation of the property, they which held that the order did that of the company should described, essentially rep- could not be affected by the not have retrospective effect fall into his insolvent estate. resented the provision by a interdict which was aimed at and was suspended for a pe- That was to be so as it was court of an equitable remedy new land invasion. However, riod of 24 months. The court alleged that K had used the to a third party affected by an that was only a trick as a day also followed the reading-in trust as his alter ego and that unconscionable abuse of the after the hearing of the CC approach, this having the re- the trust was a sham. The ap- trust form. It is a remedy that appeal and before judgment sult that in some instances plication was dismissed with would be afforded in suitable was delivered, the first re- the Minister still retained costs. or appropriate cases. It is an spondent started the eviction appellate power so as to su- Binns-Ward J held that es- equitable remedy in the or- of established unlawful occu- pervise planning activities of tablishing that a trust was a dinary sense, being one that piers in terms of an order that municipalities. ‘sham’ and ‘going behind the lent itself to a flexible ap- she had assured did not apply The order of invalidity, and trust form’ entailed funda- proach to address fairly and to them. its non-retrospectivity, was mentally different undertak- justly the consequences of The majority of the CC held confirmed by the CC. Howev- ings. The expressions ‘alter an unconscionable abuse of per Zondo J (Van der Westhui- er, the court declined to con- ego trust’ and ‘sham trust’ the trust form in given cir- zen J, with whom Froneman J firm the reading-in approach were often used interchange- cumstances. It is a remedy concurred, dissenting) that as doing so would have given ably and with confusing ef- that would generally be given the interim order granted by the Minister appellate powers fect. When a trust was a sham, when the trust form was used the High Court authorised the over decisions of municipali- it did not exist and there was in a dishonest or unconscion- first respondent municipality ties. No order was made as to nothing to ‘go behind’. In the able manner to evade liability and the second respondent costs. instant case the applicants or avoid an obligation. to take all reasonable steps

DE REBUS – OCTOBER 2014 - 48 - LAW REPORTS to prevent any person from, cluded from either returning dealing with appealability of basic education, right to fair among others, occupying the to their homes after a tempo- court order, co-existence of trial, setting aside of admin- property. There was nothing rary absence or they would be civil, criminal and adminis- istrative action, simulated in the order to suggest that removed from their homes to trative liability in financial contract, unconscionability, the occupation of the prop- prevent them from continu- services sector, consumer undue influence or duress erty that was to be prevented ing to occupy the property. credit agreement, customs relating to contract and void- did not include continuing This meant that, to that ex- and excise, legal professional able disposition. occupation that commenced tent, part of the interim order privilege, procedure for pas- prior to the grant of the order. was an eviction order. There- sage of Bill, proceedings by Indeed, the order was wide fore, the appellants had a di- liquidator, prohibition of enough to include the preven- rect and substantial interest use of confession of accused tion of continuation of such in the interim order proceed- against co-accused, proof of occupation. That meant that ings and in its discharge, and customary marriage, referral in terms of that part of the should accordingly have been of dispute of fact to hearing order the appellants could be granted leave to intervene. of oral evidence in motion prevented from continuing to proceedings, registration of occupy the property. Prevent- Other cases credit provider, reviewing ing the appellants from con- Apart from the cases and ma- and setting aside of regula- tinuing to occupy the proper- terial dealt with or referred tions made by the Independ- ty would amount to eviction to above the material under ent Communications Author- because they would be pre- review also contained cases ity of South Africa, right to q

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DE REBUS – OCTOBER 2014 - 49 - NEW LEGISLATION NEW LEGISLATION

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PROMULGATION OF ACTS provisions of the Medicines and Related Substances Act. GenN637 GG37900/11-8-2014 and GN643 GG37938/22-8- Appropriation Act 33 of 2014. Commencement: 14 August 2014. 2014. GN627 GG37913/14-8-2014. Declaring certain medicine undesirable: Phenyl Butazone. Labour Relations Amendment Act 6 of 2014. Commence- GN609 GG37898/7-8-2014. ment: To be proclaimed. GN629 GG37921/18-8-2014. General Regulations relating to bonusing and sampling. GN Local Government: Municipal Property Rates Amendment R642 GG37936/22-8-2014. Act 29 of 2014. Commencement: To be proclaimed. GN630 National Environmental Management: Protected Areas Act GG37922/18-8-2014. 57 of 2003 Proper Administration of Special Nature Reserves, National SELECTED LIST OF DELEGATED Parks and World Heritage Sites Amendment Regulations, 2014. GN R622 GG37904/15-8-2014. LEGISLATION National Road Traffic Act 93 of 1996 Banks Act 94 of 1990 Determination of type of plate to be used in the Province of Designation of an activity not falling within the meaning of ‘The North West. GN659 GG37920/18-8-2014. Business of a Bank’ (a group of persons between the members Road Accident Fund Act 56 of 1996 of which exists a common bond). GN620 GG37903/15-8-2014. Language policy. BN89 GG37889/8-8-2014. Civil Aviation Act 13 of 2009 Small Claims Courts Act 61 of 1984 Civil Aviation Regulations, 2011. GN R641 GG37935/22-8- Establishment of small claims courts for the areas of Southern 2014. Harts and Christiana. GN603 GG37889/8-8-2014. Collective Investment Schemes Control Act 45 of 2002 Establishment of small claims court for the area of Glen Grey. Determination of securities, classes of securities, assets GN604 GG37889/8-8-2014. or classes of assets that may be included in a portfolio of a Establishment of a small claims court for the area of Calitz- collective investment scheme in securities and the manner in dorp. GN605 GG37889/8-8-2014. which and the limits and conditions subject to which securities World Heritage Convention Act 49 of 1999 or assets may be so included. BN90 GG37895/8-8-2014. Procedure for the nomination of world heritage sites in the Capital requirements with which a manager of a collective Republic of South Africa. GN638 GG37903/15-8-2014. investment scheme in securities must comply. BN91 Tax Administration Act 28 of 2011 GG37895/8-8-2014. Rules for electronic communication prescribed under s 255(1) Advertising, marketing and information disclosure of the Act. GN644 GG37940/25-8-2014. requirements for collective investment schemes. BN92 GG37895/8-8-2014. Draft legislation Electronic Communications Act 36 of 2005 Promotion of Diversity and Competition on Digital Terrestrial Draft social inclusion policy framework for public post- Television Regulations.­ GenN682 GG37929/22-8-2014. school education and training institutions in terms of the Health Professions Act 56 of 1974 Further Education Training Colleges Act 16 of 2006. GenN681 List of classified and certified psychological tests. BN93 GG37928/21-8-2014. GG37903/15-8-2014. Draft rules made in terms of s 33(3) of the Petroleum Pipelines Housing Development Agency Act 23 of 2008 Act 60 of 2003. GenN707 GG37931/22-8-2014. Housing Development Agency Regulations. GN R610 Draft national appeal regulations in terms of the Nation- GG37899/12-8-2014. al Environmental Management Act 107 of 1998. GenN709 Medicines and Related Substances Act 101 of 1965 GG37937/22-8-2014. Exclusion of certain medicines from the operation of certain q

DE REBUS – OCTOBER 2014 - 50 - EMPLOYMENT LAW Employment law update

purposes of the Act is awarded for non- patrimonial loss such as injury to human dignity (solatium). Courts are generally more conservative with regard to award- ing compensation for non-patrimonial loss. The Labour Appeal Court found that when awarding both compensation and damages there must be a balance of the two to ensure that the total amount is fair to both the employee and the em- ployer, and that there is no duplication of relief. In this case, the employee had Talita Laubscher BIur LLB (UFS) LLM Monique Jefferson BA (Wits) LLB (Rho- sought relief in the amount of R 100 000. (Emory University USA) is an attorney des) is an attorney at Bowman Gilfillan in However, the Labour Court had awarded at Bowman Gilfillan in Johannesburg. Johannesburg. compensation of over R 1,4 million, which was in addition to the damages awarded for the difference in salary. The Labour Appeal Court held that there was not a sufficient explanation as to why South African Airways (SAA) argued Compensation in unfair this relief was granted. that age was an inherent requirement In the circumstances, the Labour Ap- discrimination cases of the job and that the reduction in sal- peal Court found that the compensation n South African Airways (Pty) Ltd v ary was justified as it was intended to that had been granted by the Labour GJJVV [2014] 8 BLLR 748 (LAC) an limit costs. SAA also argued that the re- Court was grossly excessive because airline pilot, Van Vuuren, reached duced salary did not constitute unfair there was no reasonable relationship to the retirement age of 60 on 5 Au- discrimination as the employees all had the injury suffered. It also exceeded the gust 2005. At the same time a col- the choice whether to retire at the age of amounts awarded in previous similar Ilective agreement with the union was 60 or to continue with employment on cases. It was accordingly found that this being negotiated in terms of which the reduced terms and conditions. was an exceptional matter that required retirement age would be increased to The Labour Court, per Shaik AJ, held the Labour Appeal Court to interfere 63. Agreement on the increased retire- that the exercise of a choice that results with the compensation award and deter- ment age of 63 was in fact reached on in unfair discrimination cannot render mine an appropriate amount afresh as it 19 August 2005, but the collective agree- the discrimination fair. A contractual was in the interests of justice to do so. ment was signed only in November 2005. term that violates the Constitution is It was found that compensation of R 50 While the collective agreement was being by definition contrary to public policy 000 was just and equitable for non-pat- finalised Van Vuuren was asked to re- and therefore unenforceable. The fact rimonial loss and the compensation was main at home on standby. When he re- that the discriminatory provisions were reduced accordingly. It was also pointed sumed his duties in December 2005 he contained in a collective agreement was out that, in unfair discrimination cases, received a reduced salary which was low- therefore no justification. Thus, the La- it is preferable to award an actual Rand er than that of his younger colleagues bour Appeal Court found that the La- amount rather than to link the amount who performed the same work. The col- bour Court had correctly found that Van to a certain number of months’ remu- lective agreement further provided for Vuuren had been unfairly discriminated neration. a reduction in rank and status of pilots against. over the age of 60 who flew internation- As regards the relief granted, the La- Admission of telephonic ally. Van Vuuren approached the Labour bour Court awarded the difference in Court alleging unfair age discrimina- the amount that Van Vuuren earned and evidence tion. At the same time, he also referred the amount that he would have earned In Simmers v Campbell Scientific Africa an unfair labour practice dispute to the had the unfair discrimination not taken (Pty) Ltd and Others [2014] 8 BLLR 815 Commission for Conciliation, Mediation place. In addition, he was awarded com- (LC) the commissioner in an arbitration and Arbitration (CCMA) as his period pensation equal to 12 months’ remuner- allowed a complainant in a sexual har- of absence while he remained at home ation, approximately R 1,4 million (see assment case to give evidence telephoni- on standby, pending the finalisation of 2013 (Dec) DR 45). cally because she was in Australia. The the collective agreement was incorrectly SAA took issue with the relief ordered. applicant instituted review proceedings deducted from his accumulated annual The Labour Appeal Court, per Coppin in respect of the arbitration award al- leave. AJA, noted that the Act empowers the leging that the admission of evidence The Labour Court found that in terms Labour Court to award both damages via telephone was irregular. The Labour of the Employment Equity Act 55 of and compensation, and thus contem- Court considered the fact that the com- 1998 (the Act), unfair discrimination is plates patrimonial and non-patrimonial plainant had time to compose herself prohibited and the only two permissible loss. The award of damages is based on while giving evidence because of delays defences to unfair discrimination are – the actual financial loss suffered and is and broken connections and that the • the taking of affirmative action meas- aimed at restoring the employee to the commissioner was unable to observe her ures consistent with the Act; or position he would have been in had the demeanour. Nevertheless, the Labour • exclusion on the basis of inherent re- unfair discrimination not occurred. On Court found that these were arbitration quirements of the job. the other hand, compensation for the proceedings and it would have been ex-

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tremely expensive to fly the complainant public, may agree to extend his or her Section 5 states that the Act takes to South Africa to give evidence. Steen- working hours by 15 minutes a day but precedence over any agreement con- kamp J was of the view that the com- not more than 60 minutes per week, to cluded before or after the Act came into missioner had dealt with the matter in enable him to continue with such duties effect. an appropriate and expedient manner. after his ordinary hours of work. Therefore the circumstances in which It was found that the complainant could Meal intervals are governed by s 14 individual parties can agree to vary basic be cross-examined and therefore it did which states that an employer is obliged conditions are limited to what the Act not prevent the employee from having to give a meal interval of one continuous provides. Any agreement that is contra- a fair hearing. Thus, the admission of hour to an employee working for five ry to what the Act provides and which telephonic evidence did not constitute a continuous hours. Subsection 5 allows leaves the employee with a less favour- reviewable irregularity. for a written agreement that reduces the able term, would be invalid. • See page 28 of this issue. meal interval to not less than 30 minutes In October last year one of the issues – or dispense with it – if the employee the Labour Court had to decide in Ludick works for fewer than six hours a day. v Rural Maintenance (Pty) Ltd (2014) 35 Section 15 deals with daily and weekly ILJ 1322 (LC), was whether an employee rest periods. In terms of a daily rest pe- is entitled to his leave pay upon resig- riod, an employer must give an employee nation after he had, in his employment 12 consecutive hours in-between consec- contract, agreed that he would forfeit utive shifts, and 36 consecutive hours any leave that had not been taken within off within a week, which should include a specific period of it being due to him. a Sunday. Subsections 2 and 3 allow for A term in his employment contract held an agreement between employer and that any leave that had not been taken employee to change this to ten hours within 30 days from the employer’s fi- between shifts and 60 hours every two nancial year end (that being 28 Febru- weeks respectively. ary each year) would be forfeited. The Section 16 provides that an employee employee’s leave cycle ended in January should be paid double his or her rate for every year and he resigned more than a working on a Sunday. However subs 3 al- month after the financial year end but lows parties to agree that the employee within six months from when his previ- Moksha Naidoo BA (Wits) LLB (UKZN) receives his or her normal rate of pay ous leave cycle ended. On the strength of is an advocate at the Johannesburg Bar. plus paid time off equivalent to the dif- the aforementioned agreement; the em- ference in value from what he or she re- ployer did not pay out any accrued leave ceived to what he or she was entitled to due to the employee from his previous receive. leave cycle. The court examined this Section 10 states that any overtime agreement and found it to be contrary to Question: worked must be by consent of the em- s 20(4) of the Act which states that an ployee. Subsection 2 says that an em- employer must grant an employee leave ection 49(3) of the Basic Condi- ployee must receive at least 1 1/2 times not later than six months after the em- tions of Employment Act 75 of his or her normal rate of pay for any over ployee’s previous leave cycle. The court 1997 (BCEA) allows for an em- time worked. However subs 3 allows for held: ployer and employee to replace an agreement between the individual ‘The Act imposes an obligation on an or exclude a basic condition of parties whereby an employee would be employer to grant leave before the ex- Semployment to the extent permitted by paid their normal rate of pay for the piry of the six-month period. … The Act the BCEA. overtime worked and receives 30 min- does not contemplate that an employee Can you provide a list of what provi- utes time off with full pay for every hour who does not take leave accrued in an sions in the BCEA can be excluded or of overtime worked. immediately preceding leave cycle at an replaced by agreement between an em- Other than this limited leeway, indi- agreed or determined time during the ployer and individual employee, and in vidual parties would not be entitled to six-month period following that cycle is particular if the amount to be paid for reduce the rate of pay for overtime fur- necessarily denied that leave, or on ter- overtime or time off given in lieu of ther. A collective agreement, concluded mination of employment, its value. payment for overtime, can be varied by at a bargaining council and which ap- A provision in a contract would … agreement? plies to all the role players within such seem to me therefore to deny the plain- sector, can reduce overtime further in tiff the benefit of a statutory basic condi- Answer: terms of s 49(1). For example a certain tion of employment, which in terms of s The right to overtime is contained in category of employees in the motor in- 4 of the Act, must be read down into his Chapter 2 of the BCEA. I shall respond dustry receives 1 1/3 times their normal employment contract.’ directly to the question posed and there- rate for any overtime worked. The court ordered the employer to pay after discuss other issues pertaining to It would be prudent to point out that the employee all leave which he did not Chapter 2 of the Act, which practitioners s 49(3) must be read with ss 4 and 5 of take in his previous leave cycle despite should be aware of. the Act. the controversial term in the employ- There are certain instances in which Section 4 states that a basic condition ment contract. an employer and employee can agree to of employment constitutes a term in an While I am mindful that the word ‘ex- vary certain rights in this chapter, but employment contract, unless other ap- clude’ appears in s 49(3), in my view, they are limited to the following: plicable laws provide a more favourable this should not be interpreted to mean In terms of s 9 an employee may not term or parties have agreed to more fa- that by agreement individual parties can work more than 45 hours per week. Sub- vourable terms or a basic condition has abandon certain rights and obligations section 2 states that an employee whose been excluded, varied or replaced in ac- set out in the Act. It would be more ap- duties include serving members of the cordance with the provisions of the Act. propriate to interpret the word to mean

DE REBUS – OCTOBER 2014 - 53 - EMPLOYMENT LAW parties can exclude a specific right and Chapter 2 of the Act the threshold cannot lay a statutory obligation and replace it with what the claim to these rights, nothing prevents Act provides. In terms of s 6 of the Act, the rights con- them, by way of an agreement with the Having said that an employer can be tained in Chapter 2 – with the exception employer, to incorporate any one of excluded from certain obligations set of s 7 which regulates working time – do these rights specifically into an employ- out in the Act by way of a Ministerial var- not apply to senior managerial employ- ment contract. iation as contemplated in s 50 of the Act. ees, travelling salespersons that regulate A variation of a basic term and condi- In National Union of Mineworkers v their own working hours and employees tion can be varied only if the employee Namakwa Sands – A Division of Anglo working less than 24 hours a month. has a statutory right to the term and Operations Ltd (2008) 29 ILJ 698 (LC), In addition to this, certain rights listed condition in question and not only a con- when faced with a segment of its work- in Chapter 2 are not applicable to em- tractual right to same. force engaged in industrial action, the ployees earning in excess of the Ministe- employer requested non-striking em- rial threshold, which as of 1 July 2014 is • The author of the question posed two ployees to work overtime. The employ- set at R 205 433,30 per annum. unrelated questions. I shall respond to er’s operations ran continuously for 24 These rights, (as indicated by the foot- the second question in a later edition. hours a day, which meant that those who note associated with these rights in the agreed to work overtime were limited to Act) are: a maximum of ten hours overtime per • Section 9: Limitations on ordinary week, as provided for in s 10(1)(b) of hours of work. the Act. This caused the employer to • Section 10: Overtime work and pay- apply for a determination in terms of s ment. Do you have a labour 50 whereby the employer’s obligation to • Section 11: Compressed working week. limit an individual employee’s overtime • Section 12: Averaging of hours of work. law-related question to ten hours a week was extended to 20 • Section 14: Provision of meal intervals. that you would like hours a week. • Section 15: Daily and weekly rest pe- answered? Employers under the jurisdiction of a riod. bargaining council can likewise apply to • Section 16: Pay for work on Sundays. Send your question to a duly appointed panel within the coun- • Section 17(2): Night work. [email protected] cil to be exempt from certain obligations • Section 18(3): Public holidays. contained in a collective agreement. While those employees earning above q

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DE REBUS – OCTOBER 2014 - 54 - pretoria 

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#joinourtable Recent articles and research By Meryl Federl

Abbreviations: Criminal law Ngwena, C ‘Developing juridical method for overcoming status subordination in Buthelezi, MC and Bernard, RB ‘The SAJHR: South African Journal on Human disablism: The place of transformative court knows the law The Teddy Bear Rights (Juta) epistemologies’ (2014) 30(2) SAJHR 275. Clinic for Abused Children & RAPCAN v TSAR: Tydskrif vir die Suid-Afrikaanse Viljoen, F and Japhet Biegon, J ‘The fea- Minister of Justice and Constitutional De- Reg (Juta) sibility and desirability of an African dis- velopment and National Director of Pub- PER: Potchefstroom Electronic Law Jour- ability rights treaty: Further norm-elab- lic Prosecutions 73300/10 2013 ZAGP- nal (North West University) oration or firmer norm-implementation’ PHC 1 (unreported) (04-01-2013)’ (2014) ILJ: Industrial Law Journal (Juta) (2014) 30(2) SAJHR 345. 3 TSAR 625. Banking law Du Toit, P ‘Die toelaatbaarheid van inti- Labour law eme visentering van die liggaam van ’n Du Toit, SF ‘Reflections on the South Af- gearresteerde persoon Yanta v Minister Botma-Kleu, C and Govindjee, A ‘The rican code of banking practice’ (2014) 3 role of reasonableness in the review of of Safety and Security 2013 JDR 1378 TSAR 568. CCMA arbitration awards in South Afri- (OKG)’ (2014) 3 TSAR 639. Sonnekus, JC ‘Huweliksvoorwaardes én ca – an English comparison’ (2014) 35 ILJ Jordaan, L ‘Die legaliteitsbeginsel en die kontrakteervryheid onder druk Bath v 1777. toelaatbaarheid van regterlike aktivisme Bath (952/2012) [2014] ZASCA 14 (24- Du Toit, D and Ronnie, R ‘Regulating by die ontwikkeling van die substantiewe 03-2014) (ongerapporteer)’ (2014) 3 the informal economy: Unpacking the strafreg (deel 2)’ (2014) 3 TSAR 447. TSAR 580. oxymoron – from worker protection Watney, M ‘Unnecessary confusion in to worker empowerment’ (2014) 35 ILJ respect of housebreaking S v Maswetswa Child law 1802. 2014 1 SACR 288 (GSJ)’ (2014) 3 TSAR Elphick, R, Elphick, J and De Sas Kro- McGregor, M ‘Racial harassment in 606. piwnicki, Z ‘Substantive equality and the workplace: Context as indicator SA caregiver responses to discrimination Disability law Transport & Allied Workers Union obo against children with disabilities in Or- Dlamini and Transnet Freight Rail 2009 Holness, W ‘Equal recognition and legal ange Farm’ (2014) 30(2) SAJHR 221. ILJ 1692 (ARB)’ (2014) 3 TSAR 649. capacity for persons with disabilities: In- Pillay, D ‘Whither the prostitution indus- Company law corporating the principle of proportion- try?’ (2014) 35 ILJ 1749. ality’ (2014) 30(2) SAJHR 313. Singlee, S ‘Conscience discrimination in Henderson, A and Van der Linde, K ‘Un- Mégret, F and Msipa, D ‘Global reason- the South African workplace’ (2014) 35 certificated shares: A comparative look able accommodation: How the conven- ILJ 1851. at the voting rights of shareholders (part tion on the rights of persons with dis- Theron, J ‘Decent work and the crisis of 1)’ (2014) 3 TSAR 496. abilities changes the way we think about labour law in South Africa’ (2014) 35 ILJ Constitutional law equality’ (2014) 30(2) SAJHR 252. 1829. Rautenbach, IM ‘The private law, com- mercial law and public law contents of Open access law journals: constitutional court orders from 1995 to 2012 (part 2)’ (2014) 3 TSAR 459. • African Human Rights Law Journal: www.chr.up.ac.za/index.php/about-the- Credit law journal.html • De Jure published by the University of Pretoria: www.dejure.up.ac.za/ Brits, R and Van der Walt, AJ ‘Appli- • Potchefstroom Electronic Law Journal: www.nwu.ac.za/p-per/volumes cation of the housing clause during • Law, Democracy & Development is the journal of the Faculty of Law at the mortgage foreclosure: A subsidiarity ap- University of the Western Cape: www.ldd.org.za/current-volume.html proach to the role of the National Credit Act (part 2)’ (2014) 3 TSAR 508. Otto, JM ‘Fiat lux in tenebris. Com- Open access websites: mon-law leases and the National Credit Act Absa Technology Finance Solutions • www.lawsofsouthafrica.up.ac.za (Pty) Ltd v Michael’s Bid a House CC 2013 • www.saflii.org (3) SA 426 (SCA)’ (2014) 3 TSAR 597.

DE REBUS – OCTOBER 2014 - 56 - RECENT ARTICLES AND RESEARCH

Van der Bijl, C ‘Corporate “assault”: Bul- per on land policy and what this means of a use right as interim measure in the lying and the aegis of criminal law (part for property law under the Constitution’ South African housing context (part 2)’ 1)’ (2014) 3 TSAR 482. (2014) 17(2) PER 760. (2014) 3 TSAR 520. Pienaar, JM ‘Reflections on the South Land reform African land reform programme: Charac- Public contract Du Plessis, E ‘Silence is golden: The lack teristics, dichotomies and tensions (part Sonnekus, JC ‘Procurement contracts of direction on compensation for expro- 1)’ (2014) 3 TSAR 425. and underlying principles of the law – no priation in the 2011 Green Paper on Land Pienaar, JM ‘The mechanics of interven- special dispensation for organs of state Reform’ (2014) 17(2) PER 798. tion and the Green Paper on Land Re- (part 2 – developing the common law, Erlank, W ‘Green Paper on Land Reform: form’ (2014) 17(2) PER 641. consequences and remedies)’ 3 (2014) Overview and challenges’ (2014) 17(2) TSAR 536. PER 614. Law of the sea Kloppers, H ‘Introducing CSR – the miss- Barrie, GN ‘Die reg van landomslote bu- Meryl Federl BA Higher Dipl Li- ing ingredient in the land reform recipe?’ urstate van Suid-Afrika tot toegang tot brarianship (Wits) is an archivist (2014) 17(2) PER 708. die see’ (2014) 3 TSAR 560. at Historical Papers at the Wil- Kloppers, HJ and Pienaar, GJ ‘The his- liam Cullen Library at the Univer- torical context of land reform in South Property law sity of the Witwatersrand. E-mail: Africa and early policies’ (2014) 17(2) Van der Merwe, CG ‘The availability of [email protected] PER 677. the mandament van spolie when upon Matlala, M ‘The 2011 Green Paper on the subdivision of a farm into two por- Land Reform: Opportunities and chal- tions and the alienation of these por- Please note that copies of the arti- lenges – the National African Farmers tions to different owners, an existing cles mentioned in this feature are Union (NAFU SA)’ (2014) 17(2) PER 832. exit road is replaced Van Rhyn NNO v not supplied by the author, but may Moster, H ‘Land as a “national asset” Fleurbaix Farm (Pty) Ltd 2013 (5) SA 521 be obtained from the publishers of under the Constitution: The system (WCC)’ (2014) 3 TSAR 615. the journals, or a law library. change envisaged by the 2011 Green Pa- Viljoen, S ‘The temporary expropriation q

THE SA ATTORNEYS’ JOURNAL

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THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL January/February 2014 APRIL 2014 AUGUST 2014 JUNE 2014 SUGAR-COATING NEW TRENDS FACING LAWYERS GUILT Does esTA sTill Admission proTecT occupiers of guilt fines – of fArm lAnD in no easy fix souTh AfricA? Gallo Images/Getty Images/Jurgen Schadeberg Gallo Images/Getty Images/Jurgen ConCourt upholds dignity Merger and of informal traders takeover law Impact on private companies Protecting Jurisdiction of the SCA THE SA ATTORNEYS’ JOURNAL traditional THE SA ATTORNEYS’ JOURNAL in labour matters – THE SA ATTORNEYS’ JOURNAL knowledge Fair divorce: the new s 168(3) of MAY 2014 MARCH 2014 Misconduct does not play JULY 2014 the Constitution a role in forfeiture claims Appointing a UNSPOKEN TRICKS OF THE TRADE The rise of the machines – When does advertising become touting? curator ad litem – FIGHTING OVER Are we applying the 18 the new 21 – understanding BREADCRUMBS law correctly? The retrospective application of a statute electronic evidence Cartels and the Destination SA: NELSON ROLIHLAHLA MANDELA Competition Act 89 of 1998 The preferred legal outsourcing destination 1918 – 2013 Link between animal cruelty and human abuse: Condemning the leaking of A review of the literature The sub judice rule and the Oscar Pistorius case Public Protector’s provisional reports

Di culties in regulating class action litigation Is there a need to articulate the rules?

POPI: VoyAger Is South Africa keeping up or with international trends? Facilitative mediation VicTim? Seeing more than the tip of the iceberg Stem cell research Refugees are not Is South African law locking progress? holiday travellers Franchise agreements Does the Consumer Protection Act 68 of 2008 point in the right direction?

DE REBUS – OCTOBER 2014 - 57 - OPINION Failing the objectives of the MPRDA By Malusi Mkhize

n 23 June 2014, the long- situ mineral deposits in the world and, Expanding opportunities, est mining sector strike in as custodian, the Minister has a duty to economic growth and South African history end- ensure the sustainable development of ed when the Association South Africa’s mineral and petroleum re- promotion of employment of Mineworkers and Con- sources within a framework of national In exercising its role as custodian, the struction Union (AMCU) environmental policy, norms and stand- state is required to expand opportuni- Oaccepted a revised wage offer from plati- ard while promoting economic and so- ties substantially and meaningfully so num producers. The economic and so- cial development. No other government that all South Africans may benefit from cial costs of the strike were crippling. It body or institution is entrusted with this the exploitation of resources. These op- is reported that the platinum producers duty. portunities simply cannot be nurtured lost over R 24 billion in revenue, while It became evident towards the latter in the midst of crippling strike action. employees lost wages of over R 10,6 bil- stages of the strike, which lasted over The strikes defeat various objects of the lion. These figures do not include the five months, that although the state is MPRDA. loss of investor confidence and the im- responsible for administering and man- The prolonged strike has had severe pact of the strike on local businesses or aging mining and prospecting rights, consequences for South Africa, a mem- the families of the striking workers. its attempts to resolve the strike were ber of the BRICS (Brazil, Russia, India, So what went so terribly wrong and proving futile. This was not due to a lack China and South Africa) countries of how do we, as South Africans, prevent of effort, which saw the President, the emerging national economies. It is re- this from happening again? In consider- newly appointed Minister of Mineral Re- ported that the South African economy ing this question it is important to have sources and even a Labour Court judge contracted by 0,6% in the first quarter regard to the objectives set out in attempting to mediate the negotiations of 2014 and the prolonged strike added chapter 2 of the Mineral and Petro- and bring an end to the strike. Perhaps extra pressure. The mineral resources of leum Resources Development Act 28 of of more concern, was that there was no South Africa have long been earmarked 2002 (the MPRDA) which, inter alia, in- clear strategy or mechanism of how to as a means of developing not only the clude to: resolve the deadlock. Neither the MPRDA mining sector, but also other sectors of ‘(b) give effect to the principle of the nor the South African labour laws pro- the economy. This is in line with govern- State’s custodianship of the nation’s vide for a maximum period that a strike ment’s objective to boost industrialisa- mineral and petroleum resources; can continue without intervention of tion and local beneficiation. The Minis- … some kind. ter has suggested that any legislation (e) promote economic growth and miner- The MPRDA does not give the Minis- passed should work towards that goal. al and petroleum resources development ter or any other government official any At the end of March 2014, 25,2% of in the Republic, particularly develop- powers to take action or intervene in the South African population was un- ment of downstream industries through situations of prolonged strike action. In employed. Ironically, members of AMCU provision of feedstock, and development fact, South African law does not recog- were striking for a better wage while of mining and petroleum inputs indus- nise the concept of ‘prolonged strike ac- others did not have employment at all. tries; tion’, yet we are aware that it is possible AMCU was unsuccessful in attempt- (f) promote employment and advance in an economic environment where trade ing to secure a moratorium on min- the social and economic welfare of all unions have a substantial presence, and ing companies restructuring following South Africans’. where mining companies are seen by the strike (with one of the effects of some as having failed to manage worker that being retrenchments). It is inevita- State’s custodianship expectations through the trade unions. ble that retrenchments will follow as the The MPRDA extinguished private owner- The Commission for Conciliation, mining companies attempt to return to ship of mineral rights and proclaimed Mediation and Arbitration (CCMA) was profitability. The question then arises as that mineral and petroleum resources also unable to assist in resolving the to whether we are on a sustainable path are the common heritage of all the peo- prolonged strike action. The CCMA’s to promoting and meeting the objectives ple of South Africa. The state is the cus- director differentiated between South of the MPRDA? todian of the resources for the benefit of Africa’s labour laws and those of other all South Africans. The state, through the jurisdictions in that bodies similar to the Conclusion Minister of Mineral Resources (the Min- CCMA in other jurisdictions can force The Minister has recently alluded to the ister), is tasked with ensuring that the parties to stop strike action. In terms of fact that it is time that our legal system objectives of the MPRDA are met. South South African labour laws this mecha- provides clear mechanisms to assist all Africa is endowed with the largest in nism simply does not exist. stakeholders in trying to meet the

DE REBUS – OCTOBER 2014 - 58 - objectives of the MPRDA. A failure does not mean that one should detract all stakeholders within the mining indus- to regulate strikes better and the in- from employees’ right to strike, but try to promote and ultimately meet the ability of the state or other parties to rather the ability to say when enough is objectives in the MPRDA in the interest intervene in prolonged strike action enough. The mineral resources of South of our country and all its people. does not support achieving the ob- Africa were and continue to be pivotal in jectives of the MPRDA aimed at pro- the country’s development. Prolonged moting economic growth and mineral strike action threatens economic development, employment and the so- growth and will inevitably result in cial and economic welfare of all South increasing unemployment. This would Africans. be failing the objectives of the MPRDA. Malusi Mkhize LLB (UKZN) is a can- The legislative environment should be An effective mechanism allowing parties didate attorney at Webber Wentzel susceptible to prevailing market condi- to intervene in prolonged strike action in Johannesburg. tions and strikes must be managed. This would certainly go a long way in aiding

Is theft a competent verdict on a charge of fraud?

By Michael Miller

n the case of Kok v S (WCC) (unre- appear that the eventual conviction re- a conviction or sentence where the pro- ported case no 14552, 2-7-2014) sulted mainly from the admissions made cedure in the trial court was not in ac- (Henney J), the accused had been by the accused after he obtained the ser- cordance with justice. Although the re- Icharged with fraud. It was alleged vices of a new attorney. view dealt with the sentence imposed, that he fraudulently obtained payment At that stage, admissions were made the court mero motu raised the question of an amount of R 98 668,98 from the in terms of s 220 of the Act. The effect of whether the conviction should also be Government Employees Pension Fund of these was that the accused admitted reconsidered. (GEPF) after he had been dismissed by that, although he was not guilty of fraud, The question arose whether theft was the South African Police Service (SAPS). he was guilty of the theft of the said indeed a competent verdict to fraud. The accused pleaded not guilty to the amount. On this basis, he was convicted This was because the accused had been charge. Before plea, the court ‘warned’ of theft and sentenced to an effective charged only with fraud, but was con- the accused of a possible competent ver- sentence of five years’ imprisonment. victed of theft, a crime with which he dict on a charge of theft. This, the court The five-year sentence was suspended had not been charged. The magistrate said, was in terms of s 256 of the Crimi- for a period of five years on certain con- purported to convict the accused of theft nal Procedure Act 51 of 1977 (the Act). ditions, which included the repayment because he was of the view that in terms It is important to note that the accused of the amount to the complainant in full, of s 256 of the Act, theft was a compe- was not charged in the alternative with before 31 July 2013. tent verdict to fraud. theft (as is common practice). Subsequently the matter went on spe- Where the prosecution does not prove A number of witnesses were called. cial review in terms of s 304(4) of the the crime charged but proves some other The nature of their evidence does not Act. That subsection provides for the crime, then provided certain conditions appear from the judgment, but it would review of (as opposed to appeal against) are met, an accused person may be con-

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DE REBUS – OCTOBER 2014 - 59 - OPINION victed of the other crime, even though of the offence so charged but proves priate the property includes an intention it was never charged. Basically there are the commission of an offence which permanently to deprive the person enti- two rules which must be followed in de- by reason of the essential elements of tled to the possession of the property, of ciding whether a conviction on a compe- that offence is included in the offence such property.’ tent verdict is appropriate. so charged, the accused may be found Snyman lists the elements of the crime The first is that in terms of Chapter guilty of the offence so proved’. as: 26 of the Act (ss 256 – 270) it must be This section has been interpreted in a • an act of appropriation; provided that it is competent to convict number of cases referred to by Henney • in respect of a certain type of property; an accused person of such other charge. J as meaning that, as long as the essen- • which takes place unlawfully; and The sections referred to provide in great tial elements of the lesser offence are in- • intentionally. detail exactly which crimes an accused cluded in the offence charged (the more A brief look at the elements as out- person may be convicted of if the crime serious offence), an accused may be con- lined above, shows immediately that the charged is not proven (competent ver- victed of the lesser offence. essential elements of theft are not in- dicts). Thus, culpable homicide is a com- The main case in this connection is cluded in the essential elements of fraud. petent verdict to a charge of murder. S v Mavundla 1980 (4) SA 187 (T) where There is, in the crime of fraud, no ele- The second is that, even though such Le Grange J stated at 190H – 191A as ment of appropriation. Nor is it required other offence is indeed a competent ver- follows (my own translation from Afri- that fraud be in respect of movable, cor- dict, its commission must be proven be- kaans) – poreal property. Nor does the intention yond reasonable doubt. Thus if murder With respect I suggest that the ques- in fraud cases have to be to deprive the is not proven, but culpable homicide is tion is simply whether the alleged (less- person entitled to the possession of the proven beyond a reasonable doubt, the er) offence by reason of its essential property, of such property. accused person may be convicted of cul- elements is incorporated in the offence It follows that a person charged with pable homicide. charged. The inquiry is in the first in- fraud cannot, on the basis of a compe- In casu, there was no doubt that – stance directed at the essential elements tent verdict in terms of s 270, be con- because of the accused’s admission to of the (lesser) offence, in other words victed of theft. this effect – the crime of theft had been the definition of the crime. The second Nevertheless, Henney J confirmed the proven beyond reasonable doubt. The step is to determine if those (essential) conviction on the charge of theft on the question was whether in terms of ss 256 elements are included in the offence basis of s 270. He agreed with the magis- – 270, theft was indeed a competent ver- charged. trate that it was proper to convict the ac- dict to fraud. What must, therefore, be considered is cused of theft. However, he differed with Henney J (with Le Grange J concur- whether the essential elements of theft the magistrate in holding that to arrive ring) looked in the first instance at s 256 are included in the crime of fraud. at such a competent verdict on the basis of the Act (under which the magistrate According to Snyman CR Criminal Law of s 256 was incorrect. purported to act). That section merely 5ed (Durban: LexisNexis 2008) at 531 In my view, Henney J was wrong in provides that, where a person is charged ‘fraud’ is ‘the unlawful and intentional confirming the conviction on theft as a with a certain offence but only an at- making of a misrepresentation which competent verdict in terms of s 270. As tempt to commit the offence so charged causes actual prejudice or which is po- indicated above, the essential elements is proven, then an accused person may tentially prejudicial to another’. of theft are not included in the essential be convicted of such attempt. It makes Snyman lists the elements of the crime elements of fraud. no provision that an accused person as following: Accordingly, the conviction on the charged with fraud may be convicted of • a misrepresentation; charge of theft should, in my view, have theft. • prejudice or potential prejudice; been set aside. The prosecution, if so ad- There is indeed no section that pro- • unlawfulness; and vised, would then be at liberty to charge vides for competent verdicts on a charge • intention. the accused again because the setting of fraud. According to the same writer at 484, aside of the conviction would not be Henney J, however, confirmed the the definition of ‘theft’ is – based on the merits of the case. theft conviction on the basis of s 270 ‘A person commits theft if he unlaw- of the Act which provides for offences fully and intentionally appropriates not specified in ss 256 – 269. That sec- movable, corporeal property which Michael Miller BA (NMMU) LLB (Wits) tion provides that: ‘If the evidence on a (a) belongs to, and is in the possession LLM (UJ) is an advocate and legal re- charge for any offence not referred to in of, another; searcher at Legal Aid South Africa in the preceding sections [in sections 256 … Johannesburg. to 269] does not prove the commission provided that the intention to appro- q

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