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The Link Between the Legal Practice Bill and Access to Justice Courtroom 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. Con tributions may be edited Reform, reintegrate, rehabilitate – for clarity, space and/or language. The appearance of an advertisemen­­ t in 33 this publication does not neces sarily indicate approval by the Law Society Balancing restorative justice and juvenile of- for the product or service ad ver tised. 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).
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