THE SA ATTORNEYS’ JOURNAL

JULY 2015

INFERENCE OF NEGLIGENCE – IS IT TIME TO JETTISON THE MAXIM RES IPSA LOQUITUR?

The beginning of the end – dissolution of marriage under accrual system

Beware of undertakings: The irrevocable instruction that was revoked

Biodiversity law and the weeding out of alien species

800th anniversary of the Magna Carta

CONTENTS

THE SA ATTORNEYS’ JOURNAL JULY 2015 Issue 554 THE SA ATTORNEYS’ JOURNAL ISSN 0250-0329 Regular columns Editorial Solicitor-general to head Office of the State Attorney 3

Letters to the editor 4

Book announcements 4 7 9 News IBA celebrates the Magna Carta 7 Lack of advancement of black and female lawyers in the spotlight 12 Democracy centre launched 17 Discussion paper on the expungement of criminal records 18 Rome Statute in the spotlight at AFLA Symposium 19 trial declared as Newsmaker of the Year 20 Additional R 3 million boost for SCCs 22 10 15 LPO report launched 23 Update on assisted suicide case 23 24 LSSA news LSSA Environmental Affairs Committee offers assistance in fight against rhino poaching 24 Commonwealth Lawyers Association appoints new president 24 FIDH delegation visits the LSSA 24 2015 examination dates 24

People and practices 25 Practice note Sectional title: Sale of units prior to Proclamation and Erf 441 Robertsville Property CC and Another v New Market Developments (Pty) Ltd 2007 (2) SA 179 (W) 26 Interim measures brought about through Attorneys Amendment Act 28 Practice management Find the problem before it finds you 29

The law reports 44 32 36 Case note Interpretation of s 133(1) of the Companies Act 71 of 2008 – the principle of moratorium re-defined under business rescue 51

New legislation 52

Employment law update 54

Recent articles and research 58 Opinion 38 40 Business rescue plan not published timeously 60

DE REBUS – JULY 2015 - 1 - EDITOR: FEATURES Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) PRODUCTION EDITOR: NEWS EDITOR: Kathleen Kriel – Nomfundo Manyathi-Jele – Inference of negligence – is it time to BTech (Journ) (TUT) NDip Journ (DUT) 32 BTech (Journ)(TUT) jettison the maxim res ipsa loquitur? SUB-EDITOR: SUB-EDITOR: Kevin O’ Reilly – Isabel Janse van Vuren – ome accidents occur in circumstances where the MA (NMMU) BIS Publishing (Hons) (UP) evidence of the alleged negligence of the defen- dant is not easily available to the plaintiff but is, or EDITORIAL SECRETARY: Shireen Mahomed should be, to the defendant. This article, written by EDITORIAL COMMITTEE: S Mohamed Randera (Chairperson), Peter Horn, Pat van den Heever and Natalie Lawrenson, focusses on the maxim of res ipsa loquitur, which is generally consid- Danie Olivier, Lutendo Sigogo ered to be no more than a convenient label to describe EDITORIAL OFFICE: 304 Brooks Street, Menlo Park, . PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. Tel situations where the plaintiff’s inability to establish the (012) 366 8800 Fax (012) 362 0969. exact cause of the accident is sufficient to justify the con- E-mail: [email protected]

clusion that the defendant was probably negligent and DE REBUS ONLINE: www.derebus.org.za in the absence of an explanation by the defendant to the CONTENTS: Acceptance of material for publication is not a guarantee contrary that such negligence caused the injury to the 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 plaintiff. 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 The beginning of the end – dissolution of for clarity, space and/or language. The appearance of an advertisemen­­ t in 36 this publication does not necessar­ ily indicate approval by the Law Society marriage under accrual system for the product or service ad­­ver­­­­tised. De Rebus editorial staff use online products from: hen entering into marriage, most people are • LexisNexis online product: MyLexisNexis. Go to: www.lexisnexis.co.za; and not aware of the laws that have direct ef- • Juta. Go to: www.jutalaw.co.za. fect on their estates and only get to be con- W PRINTER: Ince (Pty) Ltd, PO Box 38200, Booysens 2016. scious of them when they divorce. In this article, AUDIO VERSION: The audio version of this journal is available Clement Marumoagae highlights different matrimonial free of charge to all blind and print-handicapped members of regimes in South Africa and discusses an option avail- Tape Aids for the Blind. ADVERTISEMENTS: able to those whose marriage is subject to an accrual sys- Main magazine: Ince Custom Publishing tem as far as protecting their claim to the growth of their Contact: Ian Wright • Tel (011) 305 7340 • Fax (011) 241 3040 Cell: spouses’ estates is concerned. 082 574 6979 • E-mail: [email protected] Classifieds supplement: Contact: Isabel Janse van Vuren Tel (012) 366 8800 • Fax (012) 362 0969 Beware of undertakings: The irrevocable PO Box 36626, Menlo Park 0102 • E-mail: [email protected] 38 ACCOUNT INQUIRIES: David Madonsela instruction that was revoked Tel (012) 366 8800 E-mail: [email protected] CIRCULATION: De Rebus, the South African ­Attorneys’ Journal, is ommercial realities demand that conveyancing published monthly, 11 times a year, by the Law Society of South Africa, 304 Brooks Street, Menlo Park, Pretoria. It circulates free of attorneys provide guarantees and undertakings in charge to all practising attorneys and candidate attorneys and is Corder to fulfil their mandates to transfer immov- also available on general subscription. able property. What then is the legal effect of these under- ATTORNEYS’ MAILING LIST INQUIRIES: Gail Mason Tel (012) 441 4629 E-mail: [email protected] takings and to what extent do practitioners unwittingly All inquiries and notifications by practising attorneys and candi- expose themselves to personal liability by giving them? date attorneys should be addressed to the relevant law society which, in turn, will notify the Law Society of SA. Jacques F Rossouw discusses Stupel & Berman Inc v Ro- SUBSCRIPTIONS: del Financial Services (Pty) Ltd 2015 (3) SA 36 (SCA) where General, and non-practising attorneys: R 838 p/a the court recently ruled on this suit. Retired attorneys and full-time law students: R 644 p/a Cover price: R 88 each Subscribers from African Postal ­Union countries (surface mail): R 1 332 (VAT excl) Biodiversity law and the weeding out of Overseas subscribers (surface mail): R 1 626 (VAT excl) 40 NEW SUBSCRIPTIONS AND ORDERS: David Madonsela alien species Tel: (012) 366 8800 • E-mail: [email protected] t took the threat of a court order, the Minister of Envi- ronmental Affairs has finally given effect to ch 5 of the National Environmental Management: Biodiversity Act © Copyright 2015: 10 of 2004 (NEMBA) and published the alien and inva- Law Society of South Africa 021-21-NPO I Tel: (012) 366 8800 sive species lists and regulations. In this article, Ian Cox, Ilan Lax and Peter Britz take a critical look at ch 5 of NEMBA and

ask: Are the alien and invasive species lists and regulations Member of The Audit Bureau of lawful? Circulations of Southern Africa

DE REBUS – JULY 2015 - 2 - EDITOR’S NOTE Solicitor-general to head Office of the State Attorney

he then Minister of trative inefficiencies in the pro- Justice, Jeff Radebe, vision of various government introduced the idea services. Excluding amounts of appointing the spent by other government de- country’s first solic- partments, the Justice Depart- itor-general in 2012. ment spent R 124 million in Mapula Thebe – Editor TAt the time, Minister Radebe litigation. said: ‘The solicitor-general will According to Mr Masutha ‘the table amendments to the State be the state’s chief legal adviser position of solicitor-general will Attorney Act 56 of 1957 in or- in all civil litigation, similar to drive transformation in the le- der to make the appointment of the role of the National Director gal profession and the judici- a solicitor-general possible. of Public Prosecutions in crimi- ary, and ensure that the Office nal matters’. The solicitor-gener- of the State Attorney has the al will also manage the offices of necessary power, authority and state attorneys in the interests influence’. The solicitor-general NOTICE: of effective legal services. The will have the same status of a The De Rebus Admission to office will take over litigation judge. The minister has also the Professions supplement by government departments criticised the tendency of the is available electronically on and parastatals, and make sure state and the private sector to the De Rebus Digital. E-mail that the work contracted out to use white, male advocates or le- [email protected] to lawyers and advocates in private gal teams instead of affording be added to the mailing list. practice is distributed fairly. previously disadvantaged legal In May this year, in a media practitioners the opportunity. briefing ahead of his budget Consequently, this stifles the Would you like to speech in the National Assem- transformation of the Bench, write for De Rebus? bly, the current Minister of because black lawyers struggle Justice, Michael Masutha, said to acquire the necessary experi- De Rebus welcomes article contri- the planned appointment of ence to be appointed as judges. butions in all 11 official languages, the solicitor-general is almost Currently, Mr Masutha said, especially from legal practitioners. Practitioners and others who wish complete on a draft policy with the Justice Department is not to submit feature articles, practice a purpose of turning the State in the position to ensure that notes, case notes, opinion pieces Attorney’s Office into ‘a legal state litigation is awarded fairly and letters can e-mail their contri- firm of choice’ within the public to promote transformation. The butions to [email protected]. sector. Minister Masutha added appointment of the solicitor- The decision on whether to pub- lish a particular submission is that that the policy will change ‘the general would enable the de- of the De Rebus Editorial Commit- practice of briefing patterns’ in partment to monitor the situa- tee, whose decision is final. In gen- all state institutions. The policy tion properly. eral, contributions should be useful also aims to institutionalise Mr Masutha said that the de- or of interest to practising attorneys the use of alternative dispute partment wants ‘to consolidate and must be original and not pub- lished elsewhere. For more informa- resolution in handling claims state litigation, build skills and tion, see the ‘Guidelines for articles against the state. raise the level of professional- in De Rebus’ on our website (www. The department aims to re- ism in [the State Attorney’s Of- derebus.org.za). duce the litigation bill and the fice] and ensure all other enti- • Please note that the word limit is ever-increasing exposure of the ties providing legal support to now 2000 words. • Upcoming deadlines for article state to civil liability resulting the state work closely with that submissions: 20 July and 17 August from a variety of causes includ- institution’. 2015. ing, but not limited to adminis- The Justice Department will

DE REBUS – JULY 2015 - 3 - LETTERS TO THE EDITOR

PO Box 36626, Menlo Park 0102 Docex 82, Pretoria E-mail: [email protected] Fax (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

To what extent has the cent attacks, though committed by few six to eight judges available to resolve all South Africans, does not represent what these matters. xenophobic attacks on South Africa stands for. Third party claims take at least two foreign nationals damaged There is no justification, whatsoever, to three years to finalise. Because of the for this kind of conduct, as it is un- problems that they experience state at- personal and professional African and also impairs the dignity of torneys find it very difficult to settle relations around the both the perpetrator and the victim. I am their matters. continent? encouraged by the fact that our govern- Due to cases taking so long to settle, ment has taken some positive steps to many of my clients have passed away I have personal and professional rela- addressing the root causes of this behav- before their claims could be settled. The tions with a variety of brothers and sis- ioral pattern from South Africans and pressure that is put on our court system ters in various parts of the continent. In making sure that it does not recur. cannot be resolved through litigation particular, I have close relations in the It may also be important for our gov- alone. following countries: Kenya; Democratic ernment to educate ordinary South We as attorneys have an obligation Republic of Congo; Nigeria; Uganda; Ma- Africans on the importance of the values to always act in the best interest of our lawi and Mozambique, as a friend and enshrined in our Constitution, in order clients. For that reason we have to start colleague. A Kenyan friend intended to to make sure that our people understand looking for faster and less expensive take me to his village, to meet his family that everyone in the Republic is protect- ways to resolve disputes. and friends. The practice of being taken ed by law, irrespective of their country of There are many disputes where litiga- to one’s village is very important in the origin or immigration status. tion will always be required, but interna- continent, as it is regarded as one of the tionally it has been proven that media- most important gestures to seal the rela- Ivan Ka-Mbonane, attorney, tion has more advantages than litigation. tionship and to become one family. In our court system, mediation is not In light of the barbaric xenophobic/ an alien concept, r 37(6)(d) of the High afrophobic attacks, I do not even know Attorney: Embrace Court Rules makes provision for media- what to expect, should I visit some of mediation tion and we should start using media- the African countries, as aforesaid. I, As litigation attorney and mediator I feel tion in the best interests of our clients however, called my non-South African that we as attorneys must embrace me- because of its many advantages. friends and apologised for this unjusti- diation. Mediation is here to stay and the faster fied behavior. Litigation attorneys will know that it we start using it for our clients and the I also assured them that South Africa is nothing strange to have more than a court system as a whole, the better. is a caring society, founded on important hundred cases on the roll each and every constitutional values such as human dig- day in the Division, Pretoria. For Pieter Nel, attorney/mediator, nity, equality, and right to life. The re- all these cases there are normally about Nelspruit

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DE REBUS – JULY 2015 - 4 - Lethal injection The recent South African court deci- sion that a terminally ill person could Book announcements be killed by a lethal injection (the Ameri- can method of executing ‘death row’ in- states), is a cause for grave concern for the following reason. There will without a doubt be more similar court applica- Planning Law Casebook tions, which may well succeed, in terms By Jeannie van Wyk and of our ‘stare decisis’ (the decision stands) legal precept, although the judge in this Petrus J Steyn case stated that his ruling was only ap- Cape Town: Juta plicable in this instance. Certain media reports stated that government was op- (2015) 1st edition posed to this decision because of its very Price: R 445 (incl VAT) serious implications. This indicates the 232 pages (soft cover) abyss of moral degeneration into which our nation appears to be rapidly sinking.

JDM McLeish, Johannesburg • See 2015 (June) DR 4. q

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DE REBUS – JULY 2015 - 5 -

NEWS

he International Bar Asso- ciation recently celebrated the 800th anniversary of IBA celebrates the the Magna Carta by holding a conference in Cape Town in May. TThe Magna Carta, also known as the Magna Carta Great Charter, was signed at Runnymede in 1215 between King John of England and the Barons who were disgruntled by the King’s arbitrary behaviour. This ‘In this way, the Magna Carta estab- charter has been viewed as a milestone lished an important contractual relation- in the development of human rights and ship between the state and the citizen, the rule of law in England and common with the state having power over the citi- law countries. zen but also being bound by the law and Topics discussed at the celebratory the citizen being entitled to legal rights. event included the role of lawyers in up- It is this relationship, between the state holding democracy and upholding the and the citizen that forms the basis of rights of individuals; challenges to judi- the modern nation-state. The state is cial independence; maintaining limits on limited to the extent that it must uphold government power in modern states; and and respect the rights of citizens which the recognition and application of equal- are granted by the law. This means the ity. law is an important element in this re- Speakers included Chief Justice, Mogo- lationship and it must be respected and eng Mogoeng who delivered the keynote enforced,’ he said. address; retired Constitutional Court Mr Ncube said the Magna Carta was Justice, Kate O’Regan; and Deputy Gover- the first legal instrument to provide for Chief Justice, , nor Administration at the Bank of Zam- the right of Habeas Corpus. He then went delivered the keynote address at bia, Doctor Tukiya Kankasa-Mabula. on to tell delegates about an incident the International Bar Association’s Role of lawyers in in Zimbabwe where this law was used, 800th anniversary celebration many years after it was signed. of the Magna Carta in Cape Town upholding democracy ‘On 9 March 2015, a young Zimbabwe- in May. an journalist and human rights activist and rights called Itai Dzamara was allegedly ab- ‘For example, in November 2014, Ken- The first panel discussion was titled ‘The ducted by an armed group of unknown nedy Masiye, a lawyer working for the role of lawyers in upholding democracy individuals. This happened in broad day- Zimbabwe Lawyers for Human Rights and the rights of individuals’. The panel light … A few days later, his family and was severely assaulted by members of consisted of director at Bingham Centre lawyers approached the courts. the police at a police station where he for the Rule of Law in London, Sir Jef- The application they were making was had attended to represent his client who fery Jowell; ENSafrica chairman, Michael based on the right of Habeas Corpus, had been arrested while exercising his Katz; lawyer at Mossadek Law Firm in which I understand means “show the right to demonstrate,’ he said. Casablanca, Tarik Mossadek and Alpha body”, a remedy, I am told, which is of- Mr Ncube added that many other law- Media Holdings chairperson in Zimba- ten sought where a person is suspected yers have been subjected to assault and bwe, Trevor Ncube. of being in the custody of the state. The harassment of a similar nature. He said Mr Ncube described the Magna Carta demand is for the person to be produced these abuses of power cause fear and in- as ‘one of history’s greatest and most en- and for the state to justify why he should timidation among lawyers. ‘It is a harsh during documents’ adding ‘that it origi- be kept in custody. The roots of this im- operating environment which means nated from a group of leading noblemen portant remedy are to be found directly only the brave, and some might even and not from ordinary people does not in the Magna Carta,’ he said. say the reckless lawyers, are prepared dilute its appeal, and indeed, its lasting According to Mr Ncube, in this particu- to take up work in defence of political significance to the citizens of the world.’ lar case, the court granted the order and activists. ‘These are the heroes who with Mr Ncube spoke on what the Magna compelled the law enforcement authori- no regard to their own safety commit Carta means to him, both as a Zimba- ties, including the police and intelligence themselves to help others who need le- bwean and as a citizen of the world. He services to convene a search for Mr Dza- gal assistance,’ he said. spoke about its enduring effect but also mara, on the basis that the state has a Mr Ncube said there are also other fac- raised important questions over the pro- duty to protect. But, to date, his wherea- tors that affect lawyer’s work in the field motion and protection of civil rights, the bouts have still not been accounted for. of human rights and democracy such as core of which are traceable to the Magna Mr Ncube mentioned how lawyers ‘political capture’. Carta. have been harassed in Zimbabwe and He said: ‘By “political capture” I refer In this regard, he spoke about the role how lawyers are ‘politically captured’ by to a situation where political actors sub- of the legal profession as well as its role political organs of the state. in promoting and protecting human ject the legal profession, or significant rights. Harsh operating parts of it, to persistent and dispropor- Mr Ncube said the Magna Carta did tionate influence, which affects the man- two important things. Firstly, it was environment ner in which they carry out their func- the first proclamation that recognised Mr Ncube said human rights lawyers tions. In order to promote the rule of the legal rights of subjects under the sometimes have to operate in harsh law, the legal profession ought to carry crown and secondly, it recognised that working environments, adding that out its functions independently, and the monarch, which was essentially the sometimes they become victims while without undue influence from or bias state, was also capable of being bound trying to assist victims of human rights towards political actors, however power- by the law. violations. ful they might be. It is the hallmark of

DE REBUS – JULY 2015 - 7 - the profession’s independence that even cial officers regarding the requirements the most reviled alleged criminal is able of the new constitution, which has re- to find legal representation. Neverthe- sulted in the failure by lawyers to chal- less, this independence is lost when the lenge laws that are patently unconstitu- legal profession or significant parts of tional. it become “captured” by political actors He said: ‘For example, the new consti- and this invariably affects their ability to tution has new guarantees for the right carry out their professional mandate.’ to life. It effectively bans the death pen- Mr Ncube said since most of the vic- alty for all except men aged between 21 tims of human rights injustices are usu- and 70 and only then when it is aggravat- ally supporters of the opposition or civil ed murder. However, the criminal legisla- society activists, the lawyers who repre- tion which currently exists has not been sent them have often been branded ‘op- amended to conform to this new system. position lawyers’, by their detractors in The result is that convicts are still be- the state media, adding that in this way, ing sentenced to death regardless of the they are regarded by the state and ruling changes in the new constitution, itself a party as helping the cause of the opposi- travesty of justice. tion. In conclusion Mr Ncube said lawyers He said a senior politician recently fell need to rise above the politically demar- Alpha Media Holdings chairperson out of favour with the ruling party and cated lines to ensure their independence, in Zimbabwe, Trevor Ncube, was was expelled. The politician disclosed both from the ruling party and the state part of a panel discussing the role that it was very difficult to find lawyers and from the opposition forces. He said of lawyers in upholding democracy that were prepared to take up his case. they have to resist the temptation to toe and the rights of individuals Mr Ncube added that these pejorative the political line and that they have to be at an IBA conference in characterisations are not reserved for critical of government, just as they have Cape Town in May. lawyers acting on behalf of the tradition- to be critical of the opposition, too. ‘In al opposition parties. this way, there is greater scope to pro- According to Mr Ncube, the ruling par- had undertaken a serious overhaul of the mote accountability across the board ty has a group of lawyers who are always judiciary, ensuring that there would be a and to minimise the problem of “politi- ready to defend it in the media. Every re- transformed judiciary to administer the cal capture”. Overall, the great influence port that has legal implications often has new constitution. of the legendary Magna Carta will be lawyers, presented as ‘legal experts’ who However, in Zimbabwe, despite com- guaranteed to be an enduring force for back the state and give legal justification plaints over many years that the judi- more centuries to come,’ he said. to the conduct of the state, even when ciary was compromised, there was no Sir Jowell raised the question of the such conduct is patently unjustifiable or such transformation. The judiciary has debate about the lack of reference to the unreasonable. remained exactly as it was before the Rule of Law in the United Nations (UN) Mr Ncube said political capture derails new constitution. ‘For example, many development goals post 2015 for coun- the effectiveness of the legal profession members of the judiciary who benefit- tries. He said many countries support in supporting the rule of law and pro- ted from the land reform programme are the idea that the rule of law should be moting a democratic culture. He said expected to pass judgment on the same included in the UN Millennium Goals. it promotes a culture of impunity and disputes over land,’ he said. Sir Jowell asked whether socio- a sense among the political leadership Mr Ncube said two years since the new economic rights matter more than the that they are above the law and beyond constitution was adopted, it is disap- rule of law and foreign direct investment public criticism. pointing that there has been very little impact on the rule of law. progress in its implementation. He said Mr Katz asked many questions of the Judicial capture the government has dragged its feet IBA such as: Mr Ncube said the greatest concern over and failed to ensure that the various • What is the role of a corporate or tax the capture of the legal profession is the national laws and policies are realigned lawyer in relation to the rule of law? capture of the judiciary. ‘The role of the with the new constitution. ‘The govern- • What is the role of business in uphold- judiciary is to interpret the law and to act ment blames a lack of resources for the ing the rule of law? as the adjudicator of disputes between slow speed in implementation but most • What are the needs of business today individuals and between the state and Zimbabweans believe the real problem is when promoting human rights and so- individuals. In order to perform this role the lack of political will. Already, there cial justice? effectively, the judiciary must be inde- is talk from government ministers that • How can capitalism promote the idea pendent. These principles are enshrined the new constitution will be amended. of corporate lawyers having a social con- in the new constitution of Zimbabwe,’ he It would be a sad day for the people science? said. The new constitution was adopted of Zimbabwe if the new constitution is He reminded the delegates that cor- in March 2013. amended before any serious attempts porate lawyers have influence over the According to Mr Ncube having prin- have been made to fully implement it. drafting of laws, in their influence over ciples in a constitution is one thing and ‘The problem, however, is that even clients. He also said they can help in is- the actual practice is a different matter two years since its adoption, very few sues such as due diligence, preventing altogether. He said the great fear in Zim- are aware of the contents and effect of cartels, etcetera. He also reminded the babwe has been that the independence the new constitution. There has been lit- delegates that South Africa is threatened of the judiciary has been compromised, tle effort from government to promote by massive inequality and poverty. largely because of political interference. awareness of the constitution,’ he said. Mr Mossadek spoke on the Moroccan He added that when Zimbabwe adopted Mr Ncube said there is little continuing experience. He said the independence of a new constitution, there was hope that professional development among law- the Bar association has been confirmed there would be transformation of the ju- yers in Zimbabwe. He added that there over half a century ago, adding that Mo- diciary, as had happened in Kenya, which has not been effective education among rocco was a country where lawyers have had followed a similar process. Kenya practising lawyers, prosecutors and judi- been able to actively fight for a demo-

DE REBUS – JULY 2015 - 8 - NEWS cratic process and the establishment of • Court judgments, which were made the universal values of individual rights. available to those who request it. He said the challenges faced in Mo- • Important judgments were likely to be rocco were people’s attitudes; the abuse published in official sets of law reports, of power; corruption; a lack of judicial a vital resource in a legal system that re- skills for the judiciary, as well as a lack lied on the doctrine of precedent. of financial and human resources. Mr • The courts were served by an organised Mossadek said there were 4 000 judges, legal profession, which was independent 12 000 lawyers and over four million and adhered to a strong code of profes- cases per year. sional ethics. • Strong peer pressure was exerted on Challenges to judicial judges by fellow judges as well as by the independence legal profession, so that those who failed Under the topic ‘challenges to judicial properly to adhere to ethical standards independence’, professor of public law or acted dishonourably or unlawfully at the University of Cape Town, Hugh would experience collegial censure. Corder said there can be no rule of law Deputy Governor in charge of ad- • The possibility of review by or appeal in substance without judicial independ- ministration at the Bank of Zambia, to a higher court existed in respect of ence in both form and substance, add- Doctor Tukiya Kankasa-Mabula, every judicial decision, except of course ing that this is frequently easier said who was awarded the IBA 2014 those of the highest court in the hierar- than achieved. According to Professor Outstanding Woman Lawyer Award, chy. Corder, the superior court judiciary in speaking on the recognition and • The admittedly remote possibility of this country has always enjoyed consti- application of equality at an IBA disciplinary measures, or even more tutional independence, and there is only conference in Cape Town in May. unusually, removal from judicial office, one recorded instance of a judge being existed in law. However, this result was dismissed from office, that occurred in difficult to achieve and the process re- 1897, when President Kruger dismissed more onerous level, as their direct po- quired the participation of all three Chief Justice Kotze, before the formation litical accountability and their discre- branches of government. of the . tionary authority decline in scope. This • The mechanism for the appointment Professor Corder said under the Con- is typically achieved through the well- of judges and their elevation to higher stitution, the rule of law and the inde- tried mechanisms of administrative courts, or to presiding positions within pendence of the judiciary are emphati- law, increasingly the broader avenues to the court hierarchy, provided a means cally and repeatedly protected: Through achieve administrative justice, and ulti- by which the judiciary as an institutional ss 1(c); 2; 165; and various other allied mately through judicial review of admin- whole could be called to account. means. He added: ‘Yet one of the basic istrative action,’ he said. Professor Corder added that these tenets of our Constitution, indeed any He then asked what about the judici- mechanisms are used to hold the judi- such constitution, I would hazard to ary? He added that judges and other ju- ciary accountable. ‘Among the further guess, is that those who “exercise pub- dicial officers exercise public power and factors, which impact on judicial inde- lic power or perform a public function” perform a public function, but equally, pendence conditions of service, includ- must be accountable through the law for the extent of their accountability must ing salary and pension; how judges are their exercise of such authority, and this be tempered by their independence, disciplined; the existence of a code of is naturally where the idea of account- guaranteed by the Constitution, an idea conduct for judges; the rules relating to ability enters the picture.’ at least as ancient as Magna Carta. bias and recusal etcetera,’ he said. Professor Corder said society would Professor Corder said there are Professor Corder said in many coun- normally accept that Parliament is sub- methods under that are tries of the world, regrettably, judges at ject to certain rules and restrictions in well known to most legal systems that all levels are subject to direct influence the making of laws and the conduct of provide as a means of accountability. either by threats to their safety from the its affairs. ‘We would equally and more Among these are: executive, or through corrupt practices. strictly require the members of the ex- • Justiciable disputes were almost al- He then spoke on three aspects where ecutive branch of government, cabinet ways heard in open court, so that any judicial independence faces challenges ministers and public officials at every member of the public could observe the because of the need to be accountable. level, to be subject to review at an ever judicial authority at work and criticise it. He said the first potential danger ex-

DE REBUS – JULY 2015 - 9 - ists through party political influence in ence included resourcing of the judiciary the appointment of judges. He added in terms of weak budgetary provisions, that the natural temptation for any ex- understaffing, poor libraries and judicial ecutive is to have judges who do not un- numeration. She added that there was duly upset the applecart, or are seen to also a shortage of judges as judges are frustrate Parliament. often appointed on ad hoc temporary ap- Professor Corder said the area of ju- pointments to the appellant court. These dicial appointments is a critical moment positions are often renewed regularly at which judicial independence and the over long periods. rule of law can be affected, either nega- Justice O’Regan concluded by saying tively or positively. that the principle of judicial independ- ‘The second area, which necessarily ence is of central importance to the rule needs great vigilance, is that of judicial of law, adding that the independence of discipline, both leading to dismissal and the judiciary, and the separation of pow- to steps short of dismissal. While the ers, are principles, which often give rise former process is relatively rare in most Retired Constitutional Court Justice, to tension and contestation in democra- countries, and usually involves extensive Kate O’Regan, spoke on challenges cies. investigation followed by approval of to judicial independence at the Justice O’Regan also said that the ex- such dismissal by a heightened majority 800th anniversary celebrations istence of tension and contestation does of the legislature, I am more interested of the Magna Carta by the IBA in not destroy judicial independence but in the processes which have been estab- Cape Town. they can create a threatening environ- lished for discipline short of dismissal,’ ment. She added that the legal profes- he said. sion has a duty to assert and protect ju- Professor Corder added that judges ‘Here the existence of an independ- dicial independence. are human beings, they sometimes lose ent media and a critical-minded acad- ‘The suspension of the SADC Tribunal, their temper, behave inappropriately or emy and practising profession is vital. and the Protocol of 2014, which seeks badly in public, accept gifts from those Respectfully expressed criticism of the to remove the right of individuals to ap- who may someday appear before them courts and judicial activities must con- proach it, constitutes a worrying dem- in court, or worse those who are actually tribute to a better administration of onstration of a lack of commitment to on trial before them. He added that dis- justice and thus the establishment and judicial independence at regional level in ciplinary mechanisms are necessary to maintenance of the rule of law. I am par- southern Africa,’ she said. preserve the credibility and legitimacy of ticularly concerned about the damaging the courts. effects of often intemperate, usually un- Maintaining limits on Professor Corder said formal pro- informed, and sometimes mischievous government power in cesses for registering and handling com- reactions to judgments from senior poli- modern states plaints about judges were needed. He ticians of every hue, for they tend to take added that this task is often allocated root in the public mind, mostly unfairly. Speaking under the topic ‘maintaining to the Judicial Service Commission (JSC), It is difficult for the judge himself or limits on government power in modern adding that South Africa now had a Ju- herself to respond, certainly not in kind, states’, Professor Charles Fombad of the dicial Conduct Committee, which can and it is then that the senior leadership International and Comparative Law in appoint Judicial Conduct Tribunals to of the judiciary and those who value the Africa at the University of Pretoria said determine particularly serious incidents rule of law must step in to defend the that no matter how good the text of a of alleged judicial misconduct, which re- judicial institution as a whole and the constitution or the limitations that it ports to the JSC for ratification. targeted judge in particular, provided of places on government to prevent abuse He added that there is also a Judicial course that there is good cause for such of powers and dictatorship, this will Code of Conduct (based on the Banga- defence,’ he said. count for nothing if these limitations lore Principles and similar declarations), In defining what judicial independence cannot be enforced. He added that con- which includes the necessity for the con- is, Justice O’Regan said it was the ability stitutional safeguards against abuse of fidential disclosure of financial and oth- to make decisions on cases without un- power by rulers will mean nothing un- er fiduciary interest of all serving judges due interference from the executive or less the people are ready to defend these and their immediate families. any arm of government, the parties, or safeguards. ‘Ultimately, a constitution is ‘This system has only recently been judicial colleagues. She added that it was only as good as the people who are ready put in place, and it is too early to assess also the implementation of judgments and willing to defend it,’ he said. its effectiveness, but it is certainly in and orders made by courts and adequate Professor Fombad also said that principle a move in the right direction, institutional features, including secure standing firmly between the people and especially because of the judicial domi- tenure, protection of salaries and pen- the rulers, is the judiciary generally and nance of the processes and structures,’ sions, budgetary autonomy, that will judges in particular. For the process of he said. support independence of the judiciary. constitutionalism, good governance and Professor Corder said the third issue Justice O’Regan said judicial inde- accountability to take root, African judg- vital to the health of any system of pub- pendence matters because it ensures es need to adopt a bold, imaginative and lic governance is the establishment and power is exercised, and is seen to be judicially activists approach similar to maintenance of an appropriate level of exercised, in accordance with the law that which has been manifested by the openness, such as to instill public confi- and because it maintains the rule of law. South African Constitutional Court in dence, and the respect of those in other Justice O’Regan added that judicial inde- many of its decisions. ‘Ultimately, the ex- branches of government. pendence also ensures equality before istence of constitutional limits might not Adding to this point he said judicial the law and fair and public hearings by guarantee good governance. Neverthe- appointment and discipline, the process- competent, independent and impartial less, when this is combined with the will es in court, the extent of accountability tribunals. of the people to defend them, they will to the profession and the public, need a Justice O’Regan said some matters of deter potential tyrants and considerably strong measure of vigilance. concern regarding judicial independ- reduce the prospects of a country back-

DE REBUS – JULY 2015 - 10 - NEWS sliding into anarchy or dictatorship,’ he attained and that more needs to be done. es in Swaziland and corruption there. concluded. ‘Law is a powerful catalyst for change He said there is nothing being done to General Counsel to the Governor of especially when it is accompanied by address the constitutional crisis in that Lagos, Oyinkansola Badejo-Okusanya, an enforcement framework that enjoys country. Chief Justice Mogoeng chal- said that 800 years on, she believes the political will. Legal reforms have not lenged the IBA to do something about Magna Carta’s best days on the African worked as well as possible. However, the situation in Swaziland. He said: continent loom large on the horizon. As even in the absence of political will, what ‘How can you come all the way to South an idea of freedom, democracy and the can the legal profession do to advance Africa but across the border such a crisis rule of law, the Magna Carta is gradually the cause of gender equality?’ she asked. is happening in Swaziland? We must not eating away at the edges of despotism She urged lawyers to make a differ- be seen to just be doing lip service.’ across Africa. It is no longer as easy or as ence in their communities. ‘Lawyers are In addition, the Chief Justice spoke ‘fashionable’ for political leaders to have parents, husbands, wives, brothers and about the crisis in Burundi. He said the their way no matter what. They may have sisters, sons and daughters. What are we Vice President and four judges there had their say but the rule of law will even- doing in our public and private spaces to leave the country under duress as tually have its way. It has never been so to advance gender equality? By our very there were reports of judges being forced clear that power does indeed belong to training and calling, we are advocates to rule in favour of the President’s third the people. that can advocate for this cause. We all term. How do we find solutions to this? She said the power of the people is the need to challenge ourselves on how we He asked, while reminding delegates that greatest limitation on the powers of gov- can make a difference for a better soci- at the heart of the Magna Carta was the ernment. And that we have the Magna ety,’ she said. desire to resolve crisis. Carta to thank for that. The keynote address was delivered by Chief Justice Mogoeng said it is easy Speaking on the recognition and ap- Chief Justice Mogoeng. He stated that to manipulate or buy off the judiciary if plication of equality, Deputy Governor the Magna Carta offered peace between it is not fully independent institution- at the Administration Bank of Zambia, the king and the nobles during very trou- ally and resources wise. He added that Doctor Tukiya Kankasa-Mabula said al- bled times. The Magna Carta contributed justice should never be sold and that though the principle of gender equality to the UN and the European Convention no one should ever be denied justice. is generally recognised, application has on Human Rights and the constitutions been the problem. She said there is al- of many countries. most universal acceptance that despite With reference to the breaches in the all the efforts at global, regional and na- rule of law in Africa, the Chief Justice re- Nomfundo Manyathi-Jele tional level, gender equality has not been ferred to the matter of the arrest of judg- [email protected]

DE REBUS – JULY 2015 - 11 - Lack of advancement of black and female lawyers in the spotlight

he National Bar Association Mr Reddy said the TVPA defines ‘se- (NBA) held an international vere forms of trafficking’ in persons affiliates’ meeting with the as ‘sex trafficking in which a commer- Law Society of South Africa cial sex act is induced by force, fraud, (LSSA) and the Black Law- or coercion, or in which the person in- yers Association (BLA) in duced to perform such an act is under TSandton in May. the age of 18 years; or the recruitment, The NBA is the United States’ (US) old- harbouring, transportation, provision, or est and largest national association of obtaining of a person for labour or ser- predominantly african-american lawyers, vices, through the use of force, fraud, or judges, educators and law students. It coercion for the purpose of subjection has 84 affiliate chapters throughout the to involuntary servitude, peonage, debt US, Canada, the United Kingdom, Africa bondage, or slavery’. Mr Reddy high- and the Caribbean. It represents a pro- lighted the fact that ‘a victim need not fessional network of more than 65 000 be physically transported from one loca- people. National Bar Association President, tion to another in order for the crime to The theme of the symposium was Lorraine Meanes, giving the wel- fall within those definitions’ as a lot of ‘South Africa: Twenty-one-years after come address at a symposium in trafficking can occur within one country. ended and democracy for all Sandton in May. Mr Reddy went on to speak about commenced’. Speakers at the confer- South African legislation pertaining to ence included Justice Minister, Michael human trafficking. He said among South Masutha; Los Angeles Superior Court of payments or benefits to achieve the Africa’s laws to help combat trafficking Judge, Marguerite Downing; Judicial consent of a person having control over were the following – Service Commission (JSC) member and another person, for the purpose of ex- • The Prevention and Combatting of spokesperson, advocate Dumisa Ntse- ploitation’. Trafficking in Persons Act 7 of 2013. He beza SC and attorney and acting judge, She added that exploitation includes said although this law was signed in July Diana Mabasa. LSSA co-chairperson Bu- the prostitution of others or other forms 2013, it remained pending finalisation sani Mabunda and NBA president Lor- of sexual exploitation, forced labour or of implementing regulations. Mr Reddy raine Meanes gave the welcome address. services, slavery or practices similar to said this leaves South Africa without ad- The symposium consisted of two pan- slavery, servitude or the removal of or- equate anti-trafficking prohibitions and els covering two topics, namely, human gans. impeding overall efforts to combat the trafficking and the barriers and solu- In her concluding remarks, Dr Emser crime. He added that the Act has a provi- tions to the advancement of black and said the index highlighted that human sion for a maximum fine of R 100 million female lawyers. trafficking in Africa is a problem that is or life imprisonment (or both) and that exacerbated by conflict, undocumented Human trafficking and forced migration, and intraregional Doctor Monique Emser, a counter traf- and transnational criminal networks. ficking researcher and activist who She said various forms of child traffick- compiled the latest LexisNexis Human ing, which include child labour, child sol- Trafficking Awareness Index spoke on diers, forced marriage, forced pregnancy the key findings of the report (see 2015 and illegal adoptions, when grouped to- (June) DR 7 for the analysis of the index). gether, exceeded trafficking for commer- Dr Emser said the list of human rights cial sexual exploitation over the January violations is long, but one of the most to December 2014 period. heinous crimes that has, in recent years, Dr Emser said children throughout recaptured the world’s attention is the Africa remain the most vulnerable and buying and selling of people for profit, exploited subpopulation. otherwise known as human trafficking. Political specialist at the US Embassy Dr Emser explained what human traf- in Pretoria, Sanjiva Reddy, spoke on the ficking is, saying that trafficking in per- responses and challenges of human traf- sons is internationally defined in art 3, ficking in South Africa. He spoke of the para (a) of the UN Protocol to Prevent, US legislation, the Trafficking Victims Suppress and Punish Trafficking in Per- Protection Act of 2000 (TVPA) and said LSSA Co-chairperson and BLA sons, as ‘the recruitment, transporta- the TVPA requires the US Secretary of president, Busani Mabunda, gave tion, transfer, harbouring or receipt of State to submit an annual report on hu- the welcome address at a symposi- persons, by means of the threat or use man trafficking to congress. He added um by the National Bar Association, of force or other forms of coercion, of that the goal of the report was to stim- the Law Society of South Africa and abduction, of fraud, of deception, of the ulate action and to create partnerships the Black Lawyers Association in abuse of power or of a position of vul- around the world in the fight against Sandton in May. nerability or of the giving or receiving modern-day slavery.

DE REBUS – JULY 2015 - 12 - NEWS it requires annual reports from imple- Mr Matlala said the major law firms menting departments once activated. in South Africa are, white law firms. ‘It • The Criminal Law (Sexual Offenses and has to be conceded that these white law Related Matters) Amendment Act 32 of firms employ more black lawyers than 2007, which prohibits the sex trafficking one can find in a single black law firm. of children and adults and prescribes One may ask how is this possible when penalties of up to 20 years’ imprison- whites constitutes 8,9% of the South ment. Mr Reddy said this Act is suf- African population while in Apartheid ficiently stringent and commensurate South Africa these firms did not take with those prescribed for other serious into their employment black lawyers af- offenses such as . ter completing articles? Two main rea- • The Basic Conditions of Employment sons among many: (a) to attract govern- Act 75 of 1997 prohibits forced labour. ment business in accordance with its BEE The Act carries between three to six policy (whereas prior to democracy the years imprisonment penalties for forced opposite prevailed as none of their cli- labour for children under 15 years of ents would agree to be served by a black age. lawyer meaning that the firm would lose Mr Reddy said all child labour is traf- business) and (b) Employment Equity Act Counter trafficking researcher and ficking. He also said it is not only for- biased in favour of black persons while activist, Dr Monique Emser, spoke eigners that are trafficked and added in the old order the employment laws on human trafficking at a sympo- that South Africans constitute the larg- solely protected white employees,’ he sium held in Sandton. est number of human trafficking victims, said. saying that the majority of victims are la- Mr Matlala said it cannot be denied bour traffic victims. (CALS) late last year. She said the report that the black lawyers in white law firms Mr Reddy noted that Nigerian syndi- revealed that black women were treated benefit indirectly as ‘the holders of in- cates dominate the commercial sex trade differently and that they received double structions are white firms invariably in in several provinces adding that Chinese, prejudice because they are women and meaningful and lucrative legal work’. Mr Russian and Bulgarian syndicates were they are black. Ms Mabasa said black Matlala added: ‘These white law firms also active. He also said Thai women women often face challenges of pre- monopolise all legal work in all South constituted the largest identified foreign sumed incompetency and that as a re- African courts and tribunals. No South victim group in the country. sult, they have to work harder than their African judicial officer, government min- Mr Reddy said for the past three years white counterparts, as well as harder ister and parliamentarian can gainsay about ten to 15 foreign male forced la- than men, in order to prove themselves. this fact. This has contributed to the bour victims are discovered aboard fish- She added that practicing for black wom- exponential growth of white law firms ing vessels in South African territorial en was even harder as they also have to resulting in some such firms being tar- waters a month. deal with issues of motherhood, which gets of take overs by requires them to take some time off firms. Some have made alliances with Barriers and solutions to work which ‘leaves them behind’. (See international law firms. The number of the advancement of black 2014 (Nov) DR 18 for a full report on the lawyers found in some of these law firms survey). exceeds 600 when no one black law firm and female lawyers Ms Mabasa said a particular kind of in- has more than 50 lawyers. The sad story There were five panellists in the panel tervention was needed to deal with this is that currently white law firms have discussion on barriers and solutions to kind of harm. She said an intersectional double the number of black lawyers in the advancement of black and female approach combining the effects of race their midst.’ lawyers, namely, Judge Downing; Esq and gender discrimination to assist in Mr Matlala said the merger of his Lorraine McGowen; former LSSA co- the removal of barriers for black women firm, Maluleke Seriti Makume Matlala chairperson and former president of in the legal profession was needed. Inc (MSMM Inc) ‘in 2002 produced the the BLA and Law Society of the Northern Ms Mabasa posed the question wheth- largest black law firm with over 25 at- Provinces (LSNP), Nano Matlala; Mr Ntse- er the Legal Practice Act 28 of 2014 torneys and ten candidate attorneys.’ He beza; and Ms Mabasa. would make a difference and continued added that the firm ‘had all the exper- Ms Mabasa’s speech was based on the to say if the voices of women are includ- tise that one can think of in a large white survey on the transformation of women ed maybe the Act will make a difference law firm.’ Sadly, the merger could not be in the legal profession done and released but added that thus far, the Act is silent sustained because all banks refused to by the Centre for Applied Legal Studies on gender issues. give MSMM Inc work and financing. Mr

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DE REBUS – JULY 2015 - 13 - Matlala said the public and private sec- tor also refused to give them business. ‘We could not pay competitive salaries to our professionals and general staff and lost them to white law firms and the public sector. I could be speaking of an MSMM Inc of over 150 lawyers today if the firm was financed and attracted meaningful and lucrative work. Today we have less than ten lawyers. What a shame given the fact that the firm has produced more black judges than any other firm in South Africa,’ he said. Mr Matlala said that today, there is not a single black firm that he is aware of that has access to lucrative and mean- ingful legal work from the private and public sector. ‘I am ashamed to state that such meaningful and lucrative legal work is offered to major white law firms. For so long as this state of affairs pre- vails we should forget about growth and profitability of black law firms. It is not an understatement to say this is the end Judicial Service Commission member and spokesperson, advocate of the supply chain of the judiciary from Dumisa Ntsebeza SC and attorney and acting judge, Diana Mabasa black law firms and a denial of opportu- were part of a panel discussion at a symposium held in Sandton in May. nities to black law firms as espoused in the preamble to our Constitution and a contravention of section 9(2) of the Bill of rights,’ he said. He added that the pre- form the judiciary. Government then ship was also not the same for every- amble to the Constitution is rendered decided that judges could be appointed one. He said that work coming in at law meaningless and a dream to black law from academics and attorneys,’ he said, firms must be shared with the candidate firms as a result of the persistent and adding that the pool is now drying up or attorneys and that they must also get a consistent continuation of doing busi- has already dried up again. chance to work on cases. He added that ness under Apartheid conditions. Mr Ntsebeza said the situation re- they must not just be hired to make tea. Regarding the Legal Practice Act, Mr garding black people on the Bench has Mr Ntsebeza said as a member of the Matlala said the Act is aimed at regulat- not changed much. He said the JSC ex- JSC, he is asked why the JSC always rec- ing the profession and the provision of hausted what it had in the academics. ommends white people. He said: ‘Well, legal services. He added that its main He posed a question as to why the pool I tell them it is because they are prop- aim is the protection of the public and was drying up and said it is a vicious erly qualified and are fit and proper I the profession and that it does not cover cycle that starts with education. ‘Those tell them that we are not going to push economic issues. lawyers from whom we would expect people simply because they are black or Mr Matlala said Apartheid damaged to get practitioners, if they are black fe- female.’ South African citizens, both white and male, they are likely to have gone to the He concluded his speech by urging at- black, psychologically, making society worst universities in the country. There torneys to take on a number of junior believe that white people are better than is a more likely chance for the black stu- female lawyers and train them and also black people. dents to go to these kind of universities. offer them mentorship. Mr Ntsebeza spoke about statistics Although we have all the well-known uni- pertaining to the Bench. He compared versities, we still find students going to The legal system in the the number of black and female judges universities where they live. So the solu- United States on the Bench in 1994 to the latest statis- tion starts at proper legal education and tics and said progress had been made, getting government to provide resources Ms McGowen and Judge Downing spoke albeit not in the right pace. towards legal education,’ he said. on achieving parity in the legal profes- Mr Ntsebeza said in 1994 there were Mr Ntsebeza added: ‘There was a time sion. Ms McGowen provided statistics 167 judges, of these, two were women when we thought we could speed up the on the number of women in law firms – who were both white – one was in the process of getting law students quali- in the US. She spoke about the struggles appellant division while the other was fied. We moved from the usual five-year for diversity and inclusion particularly in the Cape Town High Court. He added LLB to four years. But everyone was com- for black women in the legal profession. that there were three black judges and plaining about the calibre of education She said many of the struggles experi- the rest were all white male. ‘Black in and skills students were equipped with. enced by South African black lawyers South Africa means African, Coloured The reason for this is because the best were also experienced in the US adding and Indian. Although a subsequent LLB graduates came from traditional that the ones in the US have been longer judgment in the labour Court found white universities. Government must lasting than those in South Africa. Ms that Asians and Chinese also fall under commit more resources in assisting le- McGowen said today less than 1% of black,’ he said. gal education especially in the black uni- partners throughout the US are african- Mr Ntsebeza said those judges were versities so that they can also compete american women and less than 2% are appointed from the ranks of advocate. with the others when it comes to legal african-american (males included). She ‘These silks were usually white and male education.’ added that the minority population hence the judiciary was predominantly Mr Ntsebeza said the training of attor- of partners generally is about 5%. This white male. The JSC had a duty to trans- neys via their candidate attorney clerk- number includes Hispanics. She added

DE REBUS – JULY 2015 - 14 - NEWS that the problem starts at tertiary level throughout their career and also playing as the population for african-americans a mentorship role and telling the juniors attending law school is decreasing. about what it takes to succeed in that Speaking on some of the solutions, Ms area of law. They must also look at who McGowen gave an example of negativity is doing the work and get the younger towards black lawyers. She said that two attorneys to assist actively in all the mat- of the same documents were circulated ters,’ she said. with spelling errors to approximately Ms McGowen said symposiums such 100 partners at major firms. The only as this one with all the different key difference between the documents was players in the profession were needed that the one indicated that it was writ- so that members of the profession can ten by a black person, ‘Leroy Smith’ meet and resolve issues and to share while the other was written by a ‘John ideas being developed and implemented Smith’ who was presumed to be white. within their firms. The comments against the white person Judge Downing said 54% of the women were motivational and welcomed him to Los Angeles Superior Court Judge, in California graduate from law school the profession and recommended some Marguerite Downing, recently but only 38% of them pass through the reading to improve his language while spoke on the barriers and solutions Californian State Bar. the comments against the black person to the advancement of black She added that there are approxi- included that practice was not for him and women lawyers at a mately two million practising lawyers and that he should rather leave the pro- symposium in Sandton. in the state of California and each year fession as poor writing was unaccepta- approximately 4 000 to 5 000 new law- ble. She said that this was a rude awak- yers start practising. ‘There are about ening. was partnerships. ‘Partnerships of three 23% women judicial officers in California Ms McGowen said a study by the groups of people within the law firms. and about 13 to 14% of those judges are done in the The leadership of the firms need to have black women,’ she said. 1980’s revealed that 80% of female at- an aggressive stand and not only look Judge Downing said black women torneys leave the profession within the at the numbers but also at addressing were not sufficiently represented in the first eight years of their legal career. the retention of the lawyers. You can do judiciary in California. She added that The study was repeated in 2000, which that by establishing real practical spon- because of the misrepresentation, a Cali- revealed that 50% of female attorneys sorship programmes of the women and fornia Young Lawyers Association was leave the profession within the first five black attorneys one on one. Having a established. Its role is to train young years. senior attorney in the room helping with lawyers who are 35 years or younger or Ms McGowen said the best solution development and engaging with them who have been in the profession for less

DE REBUS – JULY 2015 - 15 - than five years. She said they also have government should devise procurement you were born to be a better person and mentorship programmes where they policies and ensure that there was equal born to possess all talents’. He added start mentoring law students to make and fair distribution of government that this was a socio-political construct sure that they make it out of law school. work to all sexes in legal practice. that is used as a tool for racial and gen- Judge Downing said another factor eral political domination. that is seen to slow down women in the The Justice Department’s Minister Masutha said the Justice De- profession is the fact that women be- view partment holds a position of influence in come mothers and often have to step the justice system and it should reflect off the partnership track while they give Minister Masutha gave the keynote ad- on how best it can harness the advan- birth and care for their children. ‘When dress. He said South Africa had come tage position in addressing a number of we talk about multiple children, we take a long way in just two decades from challenges, with transformation being ourselves out of competition for eight to having only one black judge post 1994. one of the critical challenges. He said ten years depending on the path we take. Minister Masutha said according to sta- that the state has decided that it firstly So what happens is that women go into tistics, the state attorney has exceeded needs to consolidate the state litigation solo firms so that they can control when the 75% target in terms of awarding legal account by making sure that the entity they work and don’t work, or they be- work to previously disadvantaged indi- established to manage that account is come government lawyers or they prac- viduals but added that word from other the state attorneys office. tice for non-profit or legal aid services legal practitioners is that the courts are Minister Masutha said legislation has where they are given leeway instead of at filled by the ‘white boys club’. Minister been passed that establishes the posi- big law firms where they would have to Masutha said the contradicting views tion of Solicitor-General. ‘We think that make the firm a lot of money and bill a were concerning and added that he that office should be elevated to a status lot of hours,’ she said. would do his own investigation and get of significance and we are looking at an She added that what happens is that the real picture. Minister Masutha said appropriate status such as that of the when they are ready to become judges, the question was why change is happen- National Director of Public Prosecutions all the time that they spent out of prac- ing so slowly, and if it was happening at and of the Public Protector’s. We think tice and spent not doing the traditional all in some instances. that it is a very critical role that office thing such as trying cases, works against Minister Masutha said a woman’s or- needs to play and depending on how them. ganisation approached him soon after effective the office becomes, it could Judge Downing said in her state, all Judge Masipa delivered judgment in the become a game changer,’ he said. The the black judges, 23 of them, meet once Oscar Pistorious case. The organisation Solicitor-General will be the state’s chief a month for dinner where they talk wanted to mount scathing criticism on legal adviser in all civil litigation, simi- about the politics involved in being in the judge but Minister Masutha cau- lar to the role of the National Director of a minority. She said they also contact tioned it against acting in haste and sug- Public Prosecutions in criminal matters lawyers who have applied for the Bench gested that even if they choose to criti- (see 3). and talk to and encourage them to go cise on the judgment itself, they should According to Minister Masutha, there through with the interview. They ask do so in a proper way and avoid the risk was also a need to address the issue of them how far their application is and of perpetuating assumption that black gender and race transformation in brief- where they are in the process. Judge female judges are incompetent. ing patterns. ‘We need to ensure that Downing said part of the problem was ‘I told them that I can list many court whatever work is there, starting with that they believe that sometimes lawyers judgments where white males have done the public sector, gets to be evenly and select themselves out and urged black far worse, that is if people think the fairly distributed across the profession,’ lawyers, especially women, to stop un- judgment was not what they expected,’ he said. dermining themselves and thinking that he said. He then indicated the Justice The Minister also indicated govern- they will never make it as a judge. ‘We Department’s intention to appeal the ment’s displeasure at the high rate in have found that when we reach out per- euthanasia decision as Judge Fabricius which they were losing court cases. He sonally to the lawyers, they start to see indicated that the ruling only applied said that one of the reasons was that themselves. They believe that “if she is a to the deceased (see 2014 (June) DR 4). senior advocates take work even though judge, and she thinks that I can become Minister Masutha said his concern was they do not have the capacity to do it. a judge, then maybe she is right and I that the decision was, inter alia, against They then abandon brief and leave the can be a judge.” When we say we would the principle of precedent. ‘The judge work for junior counsel. Minister Masu- like to see you apply, it inspires them,’ decided that he is developing a common tha added that in some instances, coun- she said. law and therefore what is also strange sel appear in court unprepared, he add- One of the female delegates raised is that in his own order he says that the ed that counsel should rather pass on sexual harassment as a common trend order is limited to this particular case work to others who have the time and that was faced by women in legal prac- and should not set precedent for oth- who need the opportunity to deal with tice and suggested that there should be ers in similar situations in the future. these matters. a law dealing with this including a pos- Do judges have a prerogative to decide sible sanction of being barred from prac- whether judgment should or should not • Judge Fabricius who gave the ruling in tice when found guilty of this nature of pursue precedent? Because from what I the assisted suicide case has since grant- misconduct. She said sexual harassment have learnt from past experience is that ed leave to appeal his ruling. The matter needed to be defined in the Legal Practice judges just deliver their judgments and will go before the Supreme Court of Ap- Act and added that female practitioners the rule of precedence takes its natural peal. See page 23 of this issue. were usually victims of sexual harass- course. Do not get me wrong, I do not ment right through the court process want to come across as being critical of from the court registrars right through members of the Bench,’ he said. to the judges. The other delegates, both Minister Masutha added that there is male and female strongly agreed with ‘this fallacy’ that to be white, especially her view. white male, you are possessed with these Nomfundo Manyathi-Jele Another delegate suggested that the ‘holy powers of knowing it all because [email protected]

DE REBUS – JULY 2015 - 16 - NEWS Democracy centre launched

he Kutlwanong Democracy • Centre for the Study of Violence and Centre was launched at the Reconciliation (CSVR), which is an or- end of May. The centre is lo- ganisation that works in the field of cated at 357 Visagie Street in trauma and focuses on clinical, research Pretoria. and advocacy interventions that address TThe national director of Lawyers for the challenges faced by societies in tran- Human Rights, Jacob van Garderen told sition. CSVR offers trauma and psycho- De Rebus that the centre is a unique hub social assistance to refugees. for civil society in Pretoria. He said it • Zimbabwe Exiles Forum, a non-politi- brings together a range of organisations cal, non-profit and non-partisan human working in human rights, social assis- rights organisation with an eye on the tance and development. future of Zimbabwe. It is engaged in re- Services offered at the centre include search, documentation, advocacy, lobby- free legal assistance and litigation, com- ing and litigation around issues of hu- munity advice, social assistance and The Kutlwanong Democracy Centre man rights in Zimbabwe and the rights social work, health services for farm was launched on 29 May. of Zimbabweans in South Africa. workers and rural occupiers, as well as • International Federation for Human trauma and psycho-social counselling. The centre is currently home to organ- Rights, an international non-governmen- Mr van Garderen said: ‘The building isations such as – tal organisation defending all civil, polit- has become a landmark, reflecting the • Lawyers for Human Rights, a South ical, economic, social and cultural rights recent political history of South Africa African human rights organisation de- set out in the Universal Declaration of and its transformation. Symbolism and voted to social justice activism and Human Rights. It acts in the legal and design incorporates these elements public interest litigation. It provides a political field for the creation and rein- throughout the building and garden, full range of free legal services to social forcement of international instruments including the democracy wall and the movements and marginalised communi- for the protection of human rights and memorial rock from the Robben Island ties through targeted advocacy and stra- for their implementation; and more re- quarry to commemorate the struggle for tegic litigation, including refugee and cently, ProBono.Org (see 2015 (June) DR democracy in South Africa. The Truth migrant rights, land and tenure reform, 7). and Reconciliation Commission’s am- rural and urban evictions, environmental nesty hearings, for example, were also rights, socio-economic rights and inter- Nomfundo Manyathi-Jele hosted at the centre.’ national justice. [email protected]

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DE REBUS – JULY 2015 - 17 - Discussion paper on the expungement of criminal records

he South African Law Re- evant legislative provisions included the for the expungement of criminal records form Commission (SALRC) legislative provisions specifically deal- to equality and dignity. has completed its discus- ing with expungement, namely expunge- In the press release the commission sion paper on the review of ment in terms of the Child Justice Act said it concluded that the justification the law relating to the ex- 75 of 2008 (CJA) and the Criminal Proce- for the legislation enabling expunge- pungement of certain crimi- dure Act 51 of 1977 (CPA). ment of criminal records centres on two Tnal records. The request for the investi- It includes an analysis of specific leg- issues. On the one hand, the state’s duty gation of the expungement of previous islation directly impacting on expunge- to promote safety in society and protect convictions follows from the enactment ment in that the provisions of these Acts citizens from dangerous and dishon- of the Criminal Procedure Amendment are included in the expungement legis- est individuals and, on the other hand, Act 65 of 2009. The Act, inter alia, deals lative scheme in that it is a conditional an individual’s right to equality and the with the expungement of certain minor requirement for an approval of an ex- constitutional duty on the state to free criminal records. The Portfolio Commit- pungement that the names of applicants the potential of each person. These con- tee concluded that the expungement included in the National Child Protection stitutional issues guided the content of of criminal records is a complex mat- Register and the National Sex Offender the commission’s provisional recom- ter that requires a balance between the Register be removed from these regis- mendations in the discussion paper. rights of citizens to be protected against ters. After looking at all the provisions, the criminals and the recognition that hav- The paper contains an evaluation of SALRC concluded that: ing a criminal record can cause undue other relevant provisions in national leg- • The provisions in the CPA and the hardship for an individual. islation creating disqualifications with CJA dealing with expungement, are not According to the commission, the Jus- regard to employment opportunities aligned, and use different qualifying tice Minister, Michael Masutha, request- following a conviction and sentence and criteria for the approval of the expunge- ed it to conduct research on the differ- how these disqualifications impact on ment of criminal records. The expunge- ent systems followed in the keeping of the approval of expungements. The dis- ment of convictions based on the sen- criminal records and the expungement cussion paper also includes an evalua- tence imposed and the lapsing of a time of such records. He requested that the tion of expungement of criminal records frame of ten years for adult offenders, research must draw, among others, on in foreign jurisdictions and lessons to be according to the CPA, and expungement international best practices and must learned from these legislative schemes. of convictions based on lists of offences include consultation with the relevant The discussion paper looks at the combined with a time frame of five and stakeholders and the public. right of the community to be protected ten years depending on the schedules The commission’s analysis of the rel- versus the rights of applicants applying containing the listed offence for juvenile

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DE REBUS – JULY 2015 - 18 - NEWS

offenders as per the CJA. In practice, the The commission concluded that the inhibits employment opportunities (dis- different criteria make expungements in constitutionality of the enabling legis- qualifications imposed by national legis- terms of the CJA more limited for juve- lation needs to be considered against lation); niles than expungements for adults in the right of the community to be pro- – the extent to which an applicant has terms of the CPA. tected against crime versus the right of rehabilitated; • The justification for legislation ena- an individual to equality and not to be – an application for expungement bling the expungement of previous con- unfairly discriminated and the extent to should only be viable after serving of the victions is the same for juvenile and which a limitation of the right to equal- sentences concerned; and adult offenders and does not justify the ity could be justified having due regard – a limitation to the number of times application of different qualifying crite- to the state’s duties and responsibilities an application for expungement could ria. as outlined in the Constitution and other be made. • Both the CPA and the CJA provides legislation. • Providing for an application for ex- for the mandatory expungement of the In applying the above constitutional pungement to be viable after a period criminal records concerned once the cri- principles to the relevant legislation, the of five and ten years in respect of both teria set out in the Acts have been, are, SALRC proposes that: juvenile and adult offenders. and do not provide for a discretion to • The provisions in the CJA and the CPA • The legislation should provide for the the approving authority. dealing with the qualifying criteria and inclusion of a provision outlining the • Both the CPA and the CJA provide for process in expungements should be consequences resulting from an approv- an administrative application process aligned where justified. al of an expungement. for the approval of expungements based • The existing prescribed administrative The full discussion paper is available on the qualifying criteria listed in the application process should be replaced at www.doj.gov.za/salrc/index.htm and legislation. by a motivated motion application pro- the public is welcome to make comments • Applying the relevant constitutional cess to a court having jurisdiction. or suggestions to the SALRC. The closing principles to the enabling legislation • The qualifying criteria for an expunge- date for comment is 31 August 2015. for expungements, the commission con- ment in respect of both adult and juve- cluded that the provisions in the exist- nile offenders should be broadened to ing legislation, in both the CPA and CJA include additional criteria, namely – are overbroad in respect of both the pre- – participation and input by the pros- scribed process and the listed qualifying ecution in the process, consideration of criteria, therefore rendering the provi- the relevant constitutional rights, con- Nomfundo Manyathi-Jele sions unconstitutional. sideration of national legislation, which [email protected]

ormer Constitutional Court Jus- tice, Richard Goldstone, spoke Rome Statute in the spotlight at the Africa Legal Aid (AFLA) symposium in Sandton in May. at AFLA Symposium AFLA held a symposium ti- Ftled ‘Universalising the Rome Statute of the International Criminal Court’ goal as is putting an end to impunity. (ICC). The event was attended by par- Judge Monageng said the ICC is com- ticipants from more than 30 countries plementary to national courts in respect including Kenya, Nigeria, Uganda, Zim- of human rights violations. He said the babwe, Botswana, Burundi, Malawi, the protection of human rights is the duty of Democratic Republic of Congo, Tanza- the ICC and national courts. nia, Zambia, Libya and South Africa, to Ms Fatou Bensouda gave a speech engage with officials of ICC state parties on challenging the culture of impunity and representatives of international and for sexual and gender based violence. intergovernmental organisations. She said the ICC Statute has expansive The topics covered included ‘imple- protection for sexual and gender based menting the Rome Statute’, ‘criminalis- crimes and persecution based on gender. ing the illegal use of force: Has Africa Ms Bensouda said sexual and gender lost its voice?’, ‘the politics of interna- based crimes have a lasting impact long tional criminal justice: Can it be avoid- Former Constitutional Court Justice, after conflict, for both, the victims and ed?’ and ‘re-engaging Africa in the ICC’. Richard Goldstone, spoke at the their families, adding that she believes Speakers at the symposium included Africa Legal Aid symposium in that ending impunity for sexual and gen- Prosecutor of the ICC, Fatou Bensouda; Sandton in May. der based crimes requires collective ac- President of the Appeals Division of the tion through national and international ICC, Judge Sanji Monageng; former Con- mechanisms. stitutional Court Justice, Richard Gold- bunal for the Former Yugoslavia (ICTY) The ICC alone cannot end the scourge stone; and immediate past Chairperson and the ongoing war in Bosnia. He also of sexual and gender based crimes, and of the United Nations Commission of discussed the politics associated with in- that mechanisms for collective and uni- Enquiry into Gaza, Professor William dicting those accused of war crimes in versal action must be established, said Schabas. the ICTY. Ms Bensouda. Justice Goldstone spoke on the poli- Judge Monageng gave the keynote ad- tics of international criminal justice. He dress. He spoke on the Rome Statute and said the politics of international criminal universal human rights. Judge Monageng justice cannot be avoided. Justice Gold- said the creation of the ICC was the fin- stone also discussed his role as a pros- est moment in history, adding that the Nomfundo Manyathi-Jele ecutor in the International Criminal Tri- protection of human rights is a collective [email protected]

DE REBUS – JULY 2015 - 19 - Oscar Pistorius trial declared as Newsmaker of the Year

he National Press Club and the world into the courts to see how jus- Prosecuting Authority and Another, In North-West University de- tice was dispensed. ‘It has changed irre- re: S v Pistorius, In re: Media 24 Limited clared the Oscar Pistorius versibly the manner in which the media and Others v Director of Public Prosecu- trial as the Newsmaker of the and the justice system of our country tions North Gauteng and Others [2014] 2 Year for 2014. The award was converge,’ he said. All SA 446 (GP) in which media houses Thanded over to Deputy Chief Justice of Justice Moseneke said: ‘Everything made a ‘big ask’ from the courts. ‘They the Constitutional Court, Justice Dik- about the trial – the judge’s rulings, the posed serious questions about how our gang Moseneke on 15 May at the CSIR witnesses that gave evidence, and espe- courts could better ensure the hallowed International Conference Centre in Pre- cially the verdict – clogged social me- principle of open justice. The questions toria. dia newsfeeds in our laptops and other were many and complex, but even more In his opening statement, the National devices for months on end.’ He added intriguing, they were new to the judicial Press Club Chairperson, Jos Charle, said that the Constitutional Court became system,’ he said. the award included the roles played in the first court in Africa to have an active Justice Moseneke said the public is en- the trial by Oscar Pistorius himself, presence on Twitter. ‘We are becoming titled to have access to the courts and to Judge Thokozile Masipa, prosecutor Ad- a part of that elite team of apex courts obtain information pertaining to them. vocate Gerrie Nel and defence lawyer, adapting to the modern age. Our pres- He said with the new age we live in and Advocate Barry Roux. Mr Charle said: ence on Twitter is symptomatic of that the advancement of technology, our so- ‘For the first time in the history of South change.’ ciety is no longer one in which citizens Africa, most of any trial’s court proceed- must, or should have to wander into ings were broadcast live on a dedicated The Constitution and open courtrooms to find out what is happen- TV channel.’ justice ing. ‘People can now see and hear, all in In his address to media delegates, Jus- the confines of their own homes, offic- tice Moseneke said he was proud of the Justice Moseneke referred to the deci- es, villages or indeed in any other open manner in which all of those who were a sion of Mlambo JP in Multichoice (Pro- spaces, so long as they have an active in- part of the trial allowed the nation and prietary) Limited and Others v National ternet connection.’

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DE REBUS – JULY 2015 - 20 - NEWS

He added: ‘The principle of open jus- • What technology should the court al- intermediaries or with the help of a sup- tice is an incident of the values of open- low others to use? port person; ness, accountability and the rule of law, He said the Constitutional Court was • closing the courtroom so that only cer- as well as a core part of the notion of investigating the possibility of evolv- tain people are present; or a participatory democracy. All these are ing into a paperless court. ‘We are truly • allowing a witness to testify from a foundational values entrenched in the proud of the strides our Constitutional remote location via closed-circuit televi- Constitution. The preamble of the Con- Court has taken to become substantially sion. stitution contemplates “a democratic digital. It is compulsory for litigants to ‘Other measures might include sup- and open society in which government is file court records in digital form along- pression orders such as that ordered in based on the will of the people”, and the side hard copies. … In fact our website Multichoice when Judge Mlambo prohib- text requires that our democracy shall is visited extensively and reflects thou- ited the media from photographing or ensure accountability, responsiveness sands of hits from all over the world … . broadcasting the testimony of Mr Pisto- and openness.’ This has helped courts of other coun- rius or his witnesses …’ said Justice Mo- According to Justice Moseneke, courts tries to draw from our judicial experi- seneke. play an important role to solve conflicts ence …, ’ he said. in all areas of life and that is promised ‘As to the second question, of what The sub judice rule technology people should be allowed to in the Constitution. He added: ‘For open In his address, Justice Moseneke referred use in court, was the question Judge Ma- justice alone, the Constitution guaran- to the potential pitfalls of media pres- sipa had to grapple with in the course tees the freedom of the press, the free- ence in the courtroom and where justice of the Pistorius trial. Before one of the dom of the media, and the right of the systems around the world have created witnesses gave evidence, the judge pro- public to receive and discuss informa- exceptions to the rule of open justice, hibited reporters from tweeting or blog- tion and ideas [s 16(1) of the Constitu- for example, where parties are prevent- ging about the witness’ evidence. … [S]he tion]. It provides for all criminal accused ed from using documents discovered in changed her mind and allowed all non- the right of a fair and public trial [s 35(3) litigation for any purpose other than the participants in court to Tweet and blog (c) of the Constitution]. And for all oth- purpose for which they were provided. to their heart’s content,’ he said. ers, a fair and public hearing [s 34 of the ‘What may still operate in South Justice Moseneke referred to the 2010 Constitution].’ Africa, though, is the principle of sub ju- bail hearings of Wikileaks founder, Ju- The public are entitled to have access dice, which literally translates as “under lian Assange, where reporters were per- to courts, and to obtain information judgment”. It refers to a prohibition on mitted to Tweet in the courtroom and a about them, Justice Moseneke said. He publically discussing what happens in a year later, the United Kingdom Supreme added ‘Besides the obvious space limi- case until the case is finalised. … the sub Court issued a directions permitting tation of there not being enough room judice rule, and its relevance in South ‘live text-based communications’ such in the courtroom to always fit everyone, Africa, is, at the very least, on the verge as e-mail and social media in the court- and the distance limitation of court pro- of extinction. … Let it be enough to ob- room, in order to promote open justice ceedings taking place in all four corners serve that the social and other media (see www.judiciary.gov.uk/wp-content/ of our country, there is also the realistic blasts and immediacy make the sub ju- uploads/JCO/Documents/Guidance/ point that not everyone wants to come dice rule nearly impossible to hold and ltbc-guidance-dec-2011.pdf, accessed to court to find out what is happening. to keep, … [w]hat is more it will be near 3-6-2015). ‘The message remains clear: Instead, they rely on the media to tell impossible for the courts to police the Delayed information is as good as de- them. And we do not want a system in rule.’ which the judicial system is “shrouded nied information. There is no reason in mystique and protected at all times not to, as a default position, permit live Accuracy tweeting and whatever else from the from the prying eye of the camera or the Justice Moseneke added that one of the courtroom. There is no logic in asking invasive ear of the microphone” [South challenges for open justice is the role of the media to step outside of the court- African Broadcasting Corporation Lim- the media as it is the media’s responsi- room to press “send”.’ ited v National Director of Public Prosecu- bility to report on events that happen tions and Others 2007 (1) SA 523 (CC) at in a courtroom and convey the events para 33].’ Media presence in the as accurately as possible. ‘Open justice Justice Moseneke said the Pistorius tri- courtroom is all for nought if the media does not al broke boundaries that were previously accurately convey what happens in the Speaking on open justice, Justice Mo- unbroken as international journalists courtroom. … The media must also be seneke said the challenge for open jus- flocked to the country. Media and social careful not to sensationalise cases and tice is the effect of media presence on a media were flooded with information turn them into media circuses,’ he said. witness in court and is something that and even a 24-hour television channel In conclusion, Justice Moseneke said: must be guarded very carefully. ‘The was created with the sole purpose of tel- ‘We, the media and the courts, share a media’s presence subjects witnesses to evising and discussing the proceedings. common goal. We want the public to potential intimidation, both from others ‘All of this was made possible because, know. Indeed, it is our shared respon- and from within themselves. … But these before the trial even began, Judge Mlam- sibility to ensure that they do. The trial concerns are not enough to warrant clos- bo did what no South African court had against Oscar Pistorius may have at- ing the courtroom doors to reporters before dared to do: Media organisations tracted great media attention, but it is and cameras. To prevent the possibility were given permission to broadcast, live the decision in Multichoice that will set of witness intimidation, we would quite and in full Technicolour, a criminal trial.’ the trend for many years to come. It has literally need to bar everyone from the paved the way for us to begin reassess- courtroom except the litigants … . Open Technology in the court ing how to achieve open justice in a tech- justice demands quite the opposite,’ nological age.’ room he added. Justice Moseneke referred to Justice Moseneke said the question of some measures available to protect wit- technology in the court room is a two- nesses and the options ranged from: pronged one, namely: • anonymity orders to protect vulnerable • What technology should the court itself witnesses’ identities; Kathleen Kriel use? • allowing witnesses to testify through [email protected]

DE REBUS – JULY 2015 - 21 - Additional R 3 million boost for SCCs

ustice Minister, Michael Masutha, agreement by a further period of ten R 15 000. If the amount under dispute is signed a R 3 million extension months, ending in December 2015, with more than R 15 000 the person claiming agreement with the Swiss Con- an additional contribution of R 3 million. can lessen their claim to R 15 000. federation on the re-engineering In a press release the Justice Depart- It is free to resolve cases at SCCs, all Jof small claims courts (SCCs) in ment said the project has significantly one has to pay are the sheriff’s fees. May. The agreement, which has been im- contributed to the following successes: These courts are used to settle minor plemented in two phases from 2007 to • The establishment of 331 SCCs to date, civil disputes and claims between par- 2011 is aimed at improving the function- with only 46 more still to be established ties. The plaintiff must prove that the de- ing and efficiency of SCCs. countrywide. Since 2009, the Depart- fendant has done something that makes According to the Justice Department, ment has established 142 new SCCs. him or her liable for damages. Examples government entered into an agreement • The training of 270 clerks and 487 of this would be that the defendant has with the government of the Swiss Con- commissioners. failed to pay rent owed, caused an ac- federation to implement the re-engineer- • The promotion of legislative amend- cident resulting in damage to the plain- ing project of the SCCs through donor ments to the Small Claims Courts Act 61 tiff’s property or ordered and received funding. of 1984. goods without paying for them. Other Phase 1 of the project started in • Improved SCC functional operations. claims may relate to money lent, promis- March 2007 and came to an end in Feb- In these courts, claims are resolved sory notes and credit agreements. ruary 2011, with a total contribution of speedily, inexpensively, informally and Commissioners who preside in these R 4,5 million. An independent evaluation litigants conduct their own cases with- courts are drawn from a pool of expe- was done and due to positive assess- out legal representation. Before 2010, rienced legal professionals and academ- ment results, phase 2 was subsequently SCCs could deal with cases involving ics, who provide their services free of approved and ran from March 2011 to small civil claims of R 7 000 and below. charge. February 2015, with a further contribu- The jurisdiction of SCCs was increased to • See 2011 (June) DR 12. tion of R 10 million. R 12 000 in 2010 and a further increase The Justice Department said towards was gazetted in April 2014. This means the end of the second phase, the Swiss that claimants involved in civil disputes Nomfundo Manyathi-Jele Confederation offered to extend the can now claim for amounts of up to [email protected]

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The following conditions apply to entries. The article should not exceed 2 000 words in length and should also comply with the other guidelines for the publication of articles in De Rebus. • The article must be published between 1 January 2015 and 31 December 2015 • The Editorial Committee of De Rebus will consider contributions for the prize and make the award. All contributions that qualify, with the exception of those attached to the Editorial Committee or staff of De Rebus, will be considered. • The Editorial Committee’s decision will be fi nal. Any queries and correspondence should be addressed to: The Admont Abbey Library, Austria The Editor, De Rebus, PO Box 36626, Manlo Park, 0102. Tel: 012 366 8800, Fax: 012 362 0969, Email: [email protected] Please note: image is for illustration purposes only.

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C001/15

C001-15_LN_prize_ad_120x175_6.indd 1 2015/01/16 2:46 PM DE REBUS – JULY 2015 - 22 - NEWS

LPO report launched

he Department of Trade and At the launch, director of business Industry (DTI) and the Law process services at the DTI, Ntokozo Society of South Africa have Mthabela, said India is a global busi- launched the legal process ness process outsourcing (BPO) hub with outsourcing (LPO) report. The South Africa among the top three global Treport was launched in Sandton on 27 locations that can support the English May. language on a large scale. The comprehensive report is split into Mr Mthabela said South Africa has es- two parts. The first part involves an anal- tablished itself as a credible and value ysis of the shared service centres (SSCs) offering BPO destination supported by and LPO subsectors; and the second part an accessible talent pool, domain skills looks at a provincial analysis of business and cultural affinity with the United process services (BPS) opportunities and Kingdom, United States, Australia and competencies in six of South Africa’s New Zealand markets. He said South provinces, namely, Eastern Cape, Free Africa offers a range of outsourcing ser- State, Limpopo, Mpumalanga, Northern vices from basic customer service voice Cape and North West. work to high level back office processes. In the report, an SSC is described as ‘The offshore business process servic- the centralisation of support functions es industry in South Africa is growing at Co-chairperson of the Law Society (such as human resources, finance, in- more than 40% each year and has recent- of South Africa, Richard Scott, gave formation technology and procurement) ly witnessed the entry of several leading the welcome address at the launch for a particular company, which may global investors,’ he said. of the legal process outsourcing have branches in various regions. The The report is available for the public report in Sandton in May. SSC takes over certain non-core func- and can be found at www.LSSA.org.za. tions of the organisation, allowing the • See also: 2014 (July) DR 34; 2012 various business units of the firm to fo- (May) DR 20; 2011 (Nov) DR 18; and 2011 Nomfundo Manyathi-Jele cus on their core business functions. (May) DR 24. [email protected]

Update on assisted suicide case Stransham-Ford v Minister of Justice and Correctional Services and Others (GP) (unreported case no 27401/15, 4-5-2015) (Fabricius J)

he High Court in Pretoria (a)(i) … absence of a legislative framework has granted leave to ap- (ii) there is some other compelling that regulates assisted suicide, it is peal its 30 April judgment reason why the appeal should be heard, important that the Supreme Court of regarding the assisted sui- including conflicting judgments on the Appeal makes a pronouncement on cide case. matter under consideration.’ it, which is why we felt the judgment TIn the appeal application, Judge According to Judge Fabricius, the com- engrossed on legislative powers of Hans Fabricius granted the govern- pelling reason is ‘the necessity to devel- parliament because parliament makes ment and the Health Professions op the common law’. the laws, not the courts especially on Council of South Africa leave to ap- Mr Stransham-Ford’s lawyer, Sally matters of this nature.’ peal his earlier ruling in which he gave Buitendag told De Rebus that her team Leave to appeal was granted on 2 Cape Town advocate, Robin Stransh- welcomes the appeal. She said: ‘We think June and the debate regarding as- am-Ford, who was terminally ill, per- it is the right step for the matter to be sisted suicide will now move to the mission to have a doctor assist him in decided by a higher court due to the high Supreme Court of Appeal in Bloem- dying. Mr Stransham-Ford (65) died of public interest grounds involved in this fontein. prostate cancer hours before the judg- case.’ • See 2015 (June) DR 4. ment was delivered. The spokesperson for the Justice De- Leave to appeal was granted in partment, Mthunzi Mhaga said this rul- terms of s 17(1)(a)(ii) of the Superior ing was most welcome. He said: ‘We made Court Act 10 of 2013, which states: it clear when the judgment was delivered ‘Leave to appeal may only be given that it has far reaching implications and where the judge or judges concerned how it is to be interpreted and possibly Nomfundo Manyathi-Jele

are of the opinion that – abused by others and, therefore, in the [email protected] q

DE REBUS – JULY 2015 - 23 - LSSA NEWS

Compiled by Barbara Whittle, communication manager, Law Society of South Africa, [email protected] LSSA Environmental Affairs Committee offers assistance in fight against rhino poaching

he Environmental Affairs ciety, the conservation community and pivotal year in the battle to deter the il- Committee of the Law Soci- also to the LSSA. legal killing of South Africa’s rhino. ety of South Africa (LSSA), The LSSA indicated that it appreciates chaired by Johannesburg the extremely confidential nature of the attorney Catherine Warbur- anti-poaching initiatives but wished to ton, has offered its support offer the DEA and the NPA its support Tto the Department of Environmental Af- and assistance, where it is necessary and fairs (DEA) and the National Prosecut- to provide such support without com- ing Authority (NPA) in the fight against promising the success and effectiveness rhino poaching. The LSSA indicated that of any initiatives. certain specialised criminal and environ- The LSSA recognised and applauded mental legal services of its committee the efforts of the specialist teams set members could possibly be of value to up to address the matter, as well as the the organisations. The LSSA said it has various other interventions coordinated been following the rhino poaching epi- by the DEA. The LSSA noted that these The Law Society of South Africa’s demic in South Africa with shock and interventions have significantly contrib- Environmental Affairs Committee concern, and the outcomes of the fight uted to the increase in arrests and con- has offered their assistance in the against the poaching of rhino’s in South victions of poaching perpetrators. fight against rhino poaching. Africa are increasingly critical to civil so- The LSSA stressed that 2015 will be a

Commonwealth Lawyers FIDH delegation Association appoints new president visits the LSSA aw Society of South it to the LSSA and other gov- Africa (LSSA) Co- ernment institutions and chairperson Busani civil society organisations LMabunda, met with to introduce the organisa- a delegation from the In- tion’s new office in South ternational Federation for Africa. FIDH inaugurated Human Rights (FIDH) in its office which is based Pretoria at the end of May. with the Lawyers for Hu- The FIDH delegation, which man Rights’ (LHR) new of- was led by its president – fice in Pretoria. LHR is the exiled Iranian human rights South African member of lawyer, Advocate Karim FIDH. Lahidji – paid a courtesy vis-

David Bekker (right), who represents the Law Society of South Africa on the council of the Commonwealth Law- yers Association (CLA), together with Upul Jayasuriya, President of the Bar Association of Sri Lanka, who was awarded the Second Commonwealth Law Conference Rule of Law Award at the CLA conference in Glasgow, Scotland in April this year. With them is Alex Ward (left), who was elected President of the CLA for the next two years.

2015 examination dates Admission examination: • 18 August and 19 August Photographed with Mr Mabunda (front right) and Mr Lahidji (centre) are Tchérina Jerolon, FIDH Af- Conveyancing examination rica Desk Deputy Director and (back) LSSA Profes- • 9 September sional Affairs Manager Lizette Burger; Clément Phebe Mavungu, FIDH African Court Notarial examination Programme Coordinator; and LSSA Chief Executive

• 21 October. Officer, Nic Swart. q

DE REBUS – JULY 2015 - 24 - PEOPLE & PRACTICES People and practices Compiled by Shireen Mahomed

Eversheds has promotions and new Hogan Lovells in Johannesburg has Bisset Boehmke appointments. four new promotions as associates. McBlain Attorneys Gregory Shapiro Palesa Letsaba in Cape Town has has been promoted appointed Carina as a partner in the de Jongh as a senior commercial and cor- associate in the porate department corporate and com- in Johannesburg. mercial department.

Shepstone & Wylie Gwen Mathebula Nicole Stigling has has appointed been promoted to Johan Kotze as a senior associate a tax executive in the litigation consultant in Johan- department in nesburg. He special- Johannesburg. ises in tax dispute resolution.

Megan Nicholas Rooth & Wessels Attorneys in Laura Schlebusch Pretoria has two new appointments. has been appointed as an attorney in the litigation depart- Joelene Moodley ment in Johannes- has been appointed burg. as a director in the commercial depart- ment. Eben van Zyl Robyn Downs has been appointed as a senior associate in the conveyancing Pieter Smith has and property de- been appointed as a partment in Durban. director in the High Court litigation and appearances depart- ment. Samantha Fasken Martineau Gramoney has been in Johannesburg appointed as an has appointed associate in the Sarvani Morgan as commercial and cor- an associate in the Please note in future issues five porate department labour, employment or more people featured from in Durban. and human rights one firm, in the same area, will department. have to submit a group photo.

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DE REBUS – JULY 2015 - 25 - PRACTICE NOTE

Sectional title: Sale of units prior to Township Proclamation and Erf 441 Robertsville Property CC and Another v New Market Developments By (Pty) Ltd 2007 (2) SA 179 (W) Neels Engelbrecht

he question wheth- properties were, therefore, more of the erven therein will erty in the scheme, the merx er units in a sec- void in terms of s 67 of the be transferred to the seller. sold could not be an erf or a tional title scheme Town-planning and Township (2) Any contract entered portion of an erf as defined in may be validly sold Ordinance 15 of 1986 (Trans- into conflict with the provi- the ordinance and, therefore, where the develop- vaal) (the ordinance). Section sions of subsection (1) shall s 67 was not applicable. Tment was situated on land in 67 of the ordinance provides be of no force and effect. (I do not deal with the por- respect of which a township as follows: (3) Any person who contra- tion of the judgment in re- application was lodged with ‘(1) After an owner of land venes or fails to comply with spect of the description of the relevant local authority has taken steps to establish subsection (1) shall be guilty the merx as it is trite law). but was not yet proclaimed a township on his land, no of an offence. was decided in the Roberts- person shall, subject to the (4) For the purpose of sub- Practical ville matter. provisions of section 70 – section (1) – implication (a) enter into any contract (a) “steps” includes steps The facts for the sale, exchange or al- preceding an application The case is of tremendous im- ienation or disposal in any in terms of section 69(1) or portance for developers and The developer of a certain other matter of an erf in the 96(1); the public alike in instances, sectional title development, township; (b) “any contract” includes as is often the case, where New Market Developments (b) grant an option to pur- a contract which is subject units (or rather ‘sections’) are (Pty) Ltd, sold several proper- chase or otherwise acquire an to any condition, including a sold in unproclaimed town- ties in a mixed development erf in the township, until such suspensive condition.’ ships. consisting of freehold stands time as the township is de- It has been decided in sev- It is particularly important and sectional title units. The clared an approved township: eral Appeal Court decisions for the public as it means that township application in re- Provided that the provisions that a sale entered into in pre-proclamation contracts for spect of the land on which of this subsection shall not contravention of s 67 of the the sale of sectional title sec- the properties (freehold erven be construed as prohibiting ordinance is of no force and tions are valid and enforce- and sectional title schemes) any person from purchasing effect, namely, void ab initio. able in our courts. were situated was lodged land on which he wishes to In an application to enforce It often happened in the with the Johannesburg City establish a township subject the transfer of a sectional past that developers sold Council but the township was to a condition that upon dec- title unit in a sectional title stands in new developments not yet proclaimed. laration of the township as an scheme situated on an un- prior to proclamation (as was The sale of the freehold approved township, one or proclaimed stand that was the case in the Robertsville sold prior to the proclama- matter), and then voided the tion of the township, the transaction by relying on question arose whether the s 67 of the ordinance. The sale is similarly void, namely, problem with s 67 is that, al- because of the application of though it is a criminal offence s 67 of the ordinance. to sell stands prior to procla- The respondent (Newmar- mation, the penalty is a rela- ket) took the point that a sec- tively small fine and is sel- tional title unit is an erf or a dom enforced. This door has portion of an erf as defined now been closed in respect of in the definition of ‘erf’ in the sectional title properties. ordinance, and that s 67 is, I am of the view that the therefore, applicable. legislator should review the The judgment provisions of s 67 of the or- dinance, with regard to the Goldstein J in the Gauteng penalties imposed. Local Division, Johannesburg, found that it could be argued that a unit could possibly be regarded as an erf as defined in the definition of erf, but Neels Engelbrecht BLC because what was actually LLB (UP) is an attorney at sold consists of a ‘section’ be- Neels Engelbrecht attor- ing the unit plus an undivided neys in Randburg. share in the common prop- q

DE REBUS – JULY 2015 - 26 - financial intelligence centre REPUBLIC OF SOUTH AFRICA

UPDATE NOTICE TO ALL ATTORNEYS IN SOUTH AFRICA

THE AMENDMENT BILL Providing for the implementation of the United Nations Se- 4.curity Council Resolutions relating to the freezing of assets The Financial Intelligence Centre (the FIC) is in the process of The Bill empowers the Financial Intelligence Centre to administer amending the Financial Intelligence Centre Act No. 38 of 2001 as the measures adopted by the United Nations Security Council in its amended (the FIC Act) to align with the most recent International Resolutions. The acquisition, collection or use of the property of per- Standards on Combating Money Laundering and the Financing of sons or an entities whose names appear in the sanctions list shall be Terrorism and Proliferation (AML/CFT) which were adopted by the prohibited, including the provision of financial services and products Financial Action Task Force (FATF) in February 2012. The Amend- to those persons or entities. ment Bill to the Financial the FIC Act, was published for public com- ment on 21 April 2015. Prominent Influential Persons 5.The Bill introduces the concept of domestic and foreign Promi- The Bill seeks to enhance South Africa’s ability to combat financial nent Influential Persons (PIPs). These classifications are meant to crimes by proposing measures to address threats to the stability of aid accountable institutions in properly identifying their clients, and South Africa’s financial system posed by money laundering and ter- thereby enabling them to apply appropriate standards of due dili- rorism financing. The Bill also addresses regulatory gaps identified gence. from the 2009 FATF mutual evaluation and the 2014 International Monetary Fund (IMF) South Africa Financial Sector Assessment Pro- gramme Technical Note on AML/CFT. REGISTRATION WITH THE CENTRE Accountable institutions are reminded that it is a requirement to reg- The Bill enhances South Africa’s AML and CFT regulatory regime by ister with the FIC in terms of section 43B of the FIC Act. The FIC will specifically: be engaging supervisory bodies to take administrative action against • Providing for the implementation of the United Nations Security unregistered accountable institutions. Council Resolutions relating to the freezing of assets; • Enhancing the supervisory powers of the FIC and extending its functions in relation to suspicious transactions; ICT ENHANCEMENTS AND REPORTING • Providing for the adoption of a risk-based approach to customer OBLIGATIONS due diligence measures; The FIC Act requires all accountable and reporting institutions to • Introducing the concepts of beneficial ownership, on-going due dili- submit: gence, and foreign and domestic prominent influential persons; • Cash threshold reports in terms of section 28; • Enhancing the customer due diligence requirements; • Suspicious and unusual transaction reports to the FIC in terms of • Dissolving the Counter-Money Laundering Advisory Council; and section 29; and • Enhancing certain administrative and enforcements mechanisms. • Terrorist property reports (TPR) to the FIC in terms of section 28A of the FIC Act. Additions to the Bill include: The FIC has embarked on a programme to enhance its information Enhancing the customer due diligence requirements of ac- and communications technology (ICT) systems to strengthen and 1.countable institutions broaden the FIC’s capability to meet and discharge its legislative ob- The Amendment Bill broadens and enhances the elements of cus- jectives and functions as set out in sections 3 and 4 of the FIC Act. tomer due diligence requirements which includes the determination These enhancements will ensure that the FIC stays relevant and of the customer’s identity, the duty to keep records, identifying the effective in the fight against money laundering and terror financing beneficial owner and understanding the purpose and the intended globally, and that South Africa will be able to continue to be a role nature of the business relationship. On-going due diligence of the player in the global fight against crime and terror financing. customer’s transaction records and the enhanced measures for per- sons entrusted with prominent public or private sector functions was The programme solution is envisaged to be an integrated system also included. that will advance the system capability of the FIC to manage the core processes as mandated: Providing for the adoption of a Risk-Based Approach (RBA) • The registration of accountable and reporting institutions; 2.to customer due diligence • Receiving of all intelligence reports submitted by reporters; RBA entails that an accountable institution should identify, assess, • Analysis of submitted intelligence data; and and understand its AML/CFT risks by developing, documenting, • Case management and provision of intelligence products to law maintaining and implementing AML/CFT Risk Management and enforcement and supervisory bodies in a seamless and secure way. Compliance Programmes. New reporting formats for reporting in terms of Risk Management and Compliance Programs section 28, 28A and 29 will be communicated 3.The Amendment Bill requires accountable institutions to de- velop, document, maintain and implement a Risk Management and with accountable institutions in due course. Compliance Programme. The customer due diligence measures mentioned above are linked with an accountable institution’s appli- Queries on this and other compliance matters cation of a risk based approach through the institution’s AML/CFT can be directed to [email protected] compliance and risk management programme. or call 0860 222 200. PRACTICE NOTE

By Kevin Interim measures brought about O’Reilly through Attorneys Amendment Act

he Attorneys Amendment Act quest such certificate from the society, [Court]] the High Court or a magistrate’s 40 of 2014 was promulgated the society must provide same on re- court having jurisdiction within the area in GG38821/27-5-2015 in De- ceipt of the prescribed fee. of jurisdiction of which the cause of ac- cember 2014 and came into Section 9 tion arose.”’ operation on 29 May 2015. Section 55 and 77 TIts aim is to amend the Attorneys Act Unless the article clerk has received writ- 53 of 1979 as an interim measure. ten consent from the law society having The sections dealing with the TBVC areas Below is a summary of the sections jurisdiction in the area, an article clerk have been repealed in its entirety due practitioners should take note of. may not have any other occupation. Fur- to the dissolution of the law societies in ther, he or she may not have interest those areas. Section 3 in the company, therefore, they cannot Section 71 A candidate attorney may do their arti- profit share. cles at a law clinic if that law clinic has Allows a law society to investigate un- been certified by the law society having Section 10 professional/dishonest and unworthy jurisdiction in that area. One may cede one’s articles within two conduct of a practitioner on the roll, if months of starting one’s articles. This the practitioner falls within its jurisdic- Section 4 and 4A requires one to notify the law society of tion. This applies irrespective of whether Prior to entering into articles or starting the cession and provide affidavits. that person is a member of that society. community service, a candidate attorney The society may take steps against such must submit the required documents to Section 19 a person regardless of when or where the secretary of the law society having To be admitted or readmitted one must such conduct took place, or when the jurisdiction in that area. send his or her application along with person may or may not have become a supporting documents to the relevant member of the society. Section 5 law society – Within two months of date of contract, • at least one month (admission); or Section 78 the principal to the candidate attorney • at least three months for readmission The section highlights that only the law must lodge the original contract of arti- before the date of his or her application. society with jurisdiction may inspect a cles or service with the secretary of the practitioner’s books or bring an applica- law society that has jurisdiction in that Section 20 tion to have a curator bonis appointed area. If one was admitted as an attorney, in- over the trust account of a practice. cluding those admitted in former Repub- Section 8 lics of Transkei, Bophuthatswana, Venda Section 86 An article clerk may only appear in a and Ciskei (TBVC), then to have ones This section addresses the practitioners magistrate’s court and not the High name placed on the roll of attorneys one and persons who were admitted or ob- Court, Supreme Court of Appeal or the needs to obtain a certificate stating one tained degrees in the TBVC areas will be Constitutional Court. An article clerk has not been struck off the roll and that recognised and be allowed to continue can appear instead of his or her principal there are no pending cases against one. practicing or commence articles, as long and charge the same fee. An article clerk as such person has complied with the may only appear in the regional court, Section 23 requirements of the law society having as per s 2 of the Magistrates’ Court Act This section allows a firm to have a jurisdiction. 32 of 1944, once the requirements of the name of its choice provided it has been principal Act have been complied with, approved by the law society. Section 86A namely, the article clerk practiced as an This section was included to confirm advocate for six months or has served Section 49 that the amendment applies to the entire one year of the contract of articles or One may bring an application against the Republic of South Africa. previously acted as a state advocate, Fidelity Fund in the magstrate’s court. In conclusion, the Amendment Act has magistrate or state prosecutor for one Section 19 states: ‘Section 49 of the prin- brought about uniformity in the profes- year. An article clerk may request a cer- cipal Act is hereby amended by the sub- sion that can be seen by the dissolving of tificate from the law society having juris- stitution for subsection (4) of the follow- the old TBVC law societies. diction to issue a certificate to confirm ing subsection: “(4) Any action against that he or she meets the requirements to the fund may, subject to the provisions Kevin O’Reilly MA (NMMU) is a sub- appear in the regional court. of this Act [and the regulations made editor at De Rebus. The society has discretion to issue thereunder], be brought in [any pro- such certificate. Should the principal re- vincial or local division of the Supreme q

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DE REBUS – JULY 2015 - 28 - PRACTICE MANAGEMENT

By the Financial Find the problem Forensic Investigation Team of the Attorneys Fidelity Fund before it finds you

llowing events to destroy • Are you employing the right calibre of provided by The Committee of Sponsor- the vision you have of your staff? ing Organizations of the Treadway Com- firm can be managed and • Are you compliant with the legislative mission (COSO) (the five sponsporing limited, but how? and regulatory environment? organisations are: American Accounting When you decide to open • Have you identified your stakeholders Association; American Institute of Cer- aA firm, irrespective of size, you have tified Public Accountants; Institute of whose expectations you need to fulfil? taken a decision to run a business. Wiki- These are some of the areas you need Internal Auditors; Institute of Manage- pedia defines a business as ‘an organisa- to visit and understand, and the list is ment Acounts; and Financial Executives tion involved in the trade of goods, ser- not exhaustive, in order for you to find International) as outlined in COSO’s En- vices, or both to consumers [or clients]’ the problem before it finds you. terprise Risk Management – Integrated (http://en.wikipedia.org/wiki/business, Figure 1 below depicts some of the Framework, published in 2004 (www. accessed 25-5-2015). Legal firms are stakeholders that a firm may have to coso.org/documents/COSO_ERM_Execu- mainly involved in providing profession- consider, as well as how they overlap, tiveSummary.pdf, accessed 25-5-2015) al services to clients. While you may have which requires a balanced response to has gained prominence and acceptance thought through what you would like their needs and interests. by many organisations. to achieve in running a business, there This article seeks to address Enter- COSO defines ERM as ‘a process, ef- could be opportunistic events that may prise Wide Risk Management (ERM) and fected by an entity’s board of directors, affect the realisation of your goals. revealing its benefits for business, a management and other personnel, ap- Before getting excited about own- concept that should be at the forefront plied in strategy setting and across the ing and running a business, and before of each practitioner’s mind. This pro- enterprise, designed to identify poten- counting the chickens before they hatch, cess should involve everyone in the firm tial events that may affect the entity, take a step back and ask the following irrespective of their position. and manage risk to be within its risk questions: appetite, to provide reasonable assur- • Have you taken the time to find the What is ERM? ance regarding the achievement of entity problem before it finds you? ERM is sometimes viewed as a way of objectives’. • Do you know and are you keeping aggregating, managing and reporting on This definition reflects certain funda- watch of what can destroy your vision? all of the risks facing an organisation mental concepts. ERM is: • Do you know and are you conversant – a way to consolidate the information • ‘A process, ongoing and flowing through with challenges that may be posed by In- within the individual risk silos. That is an entity formation Technology (IT) in your firm? a necessary and desirable goal, but it • Effected by people at every level of an • Do you keep abreast of developments is not specifically ERM. There are many organisation in the industry? definitions of ERM, but the definition • Applied in strategy setting • Applied across the enterprise, at every level and unit, and includes taking an en- tity level portfolio view of risk • Designed to identify potential events Clients that, if they occur, will affect the entity Attorneys and to manage risk within its risk appe- Legislators Fidelity tite Fund • Able to provide reasonable assurance to an entity’s management and board of directors • Geared to achievement of objectives in one or more separate but overlapping Employees Public categories’ (see COSO Enterprise Risk Management – Integrated Framework op Firm cit). According to the framework (op cit): ‘This definition is purposefully broad. Attorneys It captures key concepts fundamental Government Insurnace to how companies and organisations Indemnity manage risk, providing a basis for ap- Fund plication across organisations, indus- Service tries, and sectors. It focuses directly on Regulators providers achievement of objectives established by a particular entity and provides a basis for defining ERM effectiveness.’ Although risk management is a busi- Figure 1: Overlapping stakeholders ness process, it is not a process that

DE REBUS – JULY 2015 - 29 - functions in isolation. Risk management Compliance objectives – • Terminate – the firm has no appetite is also not a once-off activity but is per- for the risk and will, therefore, stop the formed on a daily basis as part of on- • relate to those activities designed to process, activity, etcetera. going operations. For risk management align actual firm with regulatory and • Treat – introduce controls and conti- to be effective, it needs to be linked and contractual requirements and organi- nuity strategies in order to reduce the integrated with all business processes, satonal policy. These would include impact and likelihood of the risk mate- from strategic planning to operational the legislative environment and rules rialising. processes. There are eight key compo- applicable to a firm. These response strategies are at times nents of the ERM process and these are referred to as the 4T’s. Value creation is discussed below: 3. Event identification one of the principles in ERM. It is, there- fore, important that in responding to a Once the objectives have been set, in- 1. Internal environment risk, the cost involved should not exceed ternal and external events that could This encompasses the tone at the top the benefit to be derived. and sets the basis for how risk is viewed potentially affect the achievement of and addressed by the organisation’s peo- those objectives should be identified. 6. Control activities These could arise from sources such ple. It would include defining the risk ap- These are part of the process by which as key business processes, technology, petite of the organisation, integrity and a firm strives to achieve its business people, economic factors and client de- ethical values, and the environment in objectives. They are policies and proce- mographics and behaviours. Potential which they operate. Practitioners should dures that help ensure risk responses events with a negative effect on the firm always keep in mind that their stake- are properly executed. It is best practise represent a risk to the firm and these holders, both internal and external, want to have both the policies and procedures should be managed, while events with a to know what the firm stands for – its documented. The Business Dictionary positive effect represent opportunities, ethics, values and intentions. They want defines ‘policies and procedures’ as ‘a which should be channelled back to the to know that it can be trusted to do the set of principles, rules, and guidelines strategic objectives. This step is crucial right things in view of increasing con- formulated or adopted by an organisa- as proper identification can protect a cerns about – among other issues – brib- tion to reach its long-term goals and firm from possible downfall, while poor ery, corruption, fraud, failures in data typically published in a booklet or other event identification can leave room for security, etcetera. An example of how a form that is widely accessible’ (www. a downfall. Of importance is that risks practitioner could set a tone around its businessdictionary.com/definition/pol- are identified at different levels in the lack of tolerance for fraud perpetrated icies-and-procedures.html, accessed 25- organisation, at both strategic and op- by staff against the firm could be by ex- 5-2015). It is common for small firms not erational levels. Risks identified at stra- posing such individuals through various to have documented policies and proce- tegic level should be taken down to op- forms, including, laying criminal charges dures, and practitioners are encouraged erational level as the actual management against such employees. to have and maintain these documents takes place through day-to-day activities irrespective of the size of the firm. 2. Objective setting at operational level. It is important and necessary to de- 7. Information and 4. Risk assessment fine the direction that the firm should communication take. There should be a process to set The identified risks need to be assessed Information is needed at all levels of an objectives of the firm, which objectives for their impact and likelihood in the entity to identify, assess and respond to should support and be aligned with the achievement of the objectives. In as- risks, including emerging risks. Informa- firm’s vision and mission and consistent sessing the risks, both the inherent and tion can be obtained in various forms with its risk appetite. It is also impor- residual risks should be assessed. The from various sources, in qualitative or tant to document the objectives that the inherent risk refers to that risk that ex- quantitative form. The information ob- firm should achieve. Documenting the ists with the mere existence of the busi- tained allows ERM to respond to chang- set objectives assists in keeping watch ness and/or activity, before any controls ing conditions in real time. Without in- throughout risk management to ensure are put in place. The residual risk refers formation around developments in, for that whatever processes/interventions to the risk that remains (residue) after example, the legal fraternity, the tax take place they remain in line with the controls have been put in place, and this legislation, the basic conditions of em- set objectives. Objectives may be set at is the risk that the practitioner should ployment, the economic conditions, et- various levels of the firm. The diagram mainly be concerned with. The risk re- cetera, the firm may find itself exposed that follows depicts the four main types maining after the controls (residual) to a number of risks that it did not an- of objectives: should not be greater than the defined ticipate. Should you be caught off guard, risk appetite of the firm. The outcomes you may find yourself out of business. Strategic objectives – of the risk assessments should be docu- Communication should raise awareness mented in a risk register, which should about the importance and relevance of • relate to the way the firm intends to be reviewed and updated as frequently effective ERM. fulfil its mission and achieve its vision. as required by the firm. 8. Monitoring 5. Risk response Monitoring of ERM involves the assess- Operational objectives – Once risks have been assessed, the prac- ment of both the presence and effective- titioner should evaluate various strate- • relate to the effective and efficient ness of its components and the quality gies to respond to the assessed risks. deployment of resources in achieving of their performance over time. It can Below are the various strategies that the the strategic objectives. take place through ongoing activities or practitioner can decide on: separate evaluations. • Tolerate – the risk is known and ac- An example of a risk that a firm may Reporting objectives – cepted by the firm. face could be stakeholder dissatisfac- • Transfer – the risk continues to exist, tion. The likelihood and impact of this • relate to the communication of infor- but it is passed on to a third party to risk for the firm could be catastrophic as mation both internally and externally. manage, for example an insurer or out- it could lead to a collapse of the firm. The sourcer. risk could be managed by the firm under-

DE REBUS – JULY 2015 - 30 - PRACTICE MANAGEMENT standing the expectations of its various Events identification Information and stakeholders and ensuring that there are communication measures in place to address these. As a • Identify internal and external events measure, the firm may explore ways to that may affect the achievement of ob- • Identify relevant information, cap- involve some of the stakeholders in the jectives, distinguishing between risks ture it and communicate it in a form development of the risk management and opportunities. that enables people to carry out their processes and keeping people informed. responsibilities. Putting these measures in place should reduce the residual risk. Ensuring that Risk assessment measures remain effective throughout Monitoring the life of the firm would further require • Analyse risks, considering the likeli- ongoing monitoring, obtaining feedback hood of them materialising and the • Monitor ERM and modify as neces- and reviewing those measures so as to impact it would have on the firm. As- sary. ensure they remain relevant in managing sess on an inherent and residual basis. the risk. Risk response The risk identification and assess- Conclusion ment activity can happen as often as the The eight components of ERM are sum- • Select risk responses – whether to firm deems necessary, but it is advisable marised in the diagram below: tolerate, transfer, terminate of treat to conduct it at least on an annual ba- the risk. sis. It may be costly, time consuming, frustrating and probably impossible to Internal environment reverse the damage that may be caused Risk response by a problem if it finds you. • Define a tone that is reflective of how So, go on and find the problem before • Select risk responses – whether to risk is perceived in the firm and define it finds you and enjoy the rewards of tolerate, transfer, terminate of treat the risk appetite for the firm. that investment. the risk.

Objective setting Control activities The Financial Forensic Investigation Set objectives before indentifying • • Implement policies and procedures Team of the Attorneys Fidelity Fund potential events that may affect their to ensure risk responses are effectively in Centurion. achievement. carried out. q

DE REBUS – JULY 2015 - 31 - Inference of negligence – is it time to jettison the maxim res ipsa loquitur?

By Pat van den Heever and Natalie Lawrenson

Picture source: Gallo Images/iStock ome accidents occur in circumstances where the evidence of the alleged negligence of the defend- ant is not easily available to the plaintiff but is, or should be, to the defendant. The maxim of res ipsa loquitur is generally considered to be no more than a convenient label to describe situa- tions where notwithstanding the plaintiff’s inabil- Sity to establish the exact cause of the accident the fact of the accident by itself is sufficient to justify the conclusion that the defendant was probably negligent, and in the ab- sence of an explanation by the defendant to the contrary that such negligence caused the injury to the plaintiff (P van den Heever and P Carstens Res Ipsa Loquitur & Medi- cal Negligence: A Comparative Survey (Cape Town: Juta 2011) at 2). In Horner v Northern Pacific Benefitial Asso- ciation Hospitals Inc (1963) 382 P.2d 518 at 523 Hale J expressed the following instructive thoughts on the maxim: ‘The rule is a good one, and it ought not to be muddled with over-refinement and the casu- istry so frequently the by-product of overwrit- ing and overtalking about the same subject’. In Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA) Ponnan JA, writ- ing for an undivided Bench (Leach JA, Saldulker JA, Mbha JA and Mathopo AJA concurring) referred to the judgment in Buthelezi v Ndaba 2013 (5) SA 437 (SCA) where Brand JA, after refer- ring to the seminal case of Van Wyk v Lewis 1924 AD 438 pointed out that the maxim of res ipsa loqui- tur ‘could, rarely, if ever, find application to a case based on alleged medical negligence.’ Pon- nan JA explained that the evident reluctance of our courts to apply the maxim in cases of this nature is the fact that things do some- times go wrong in surgical opera- tions and medical treatment due to misadventure. To hold a medical practitioner negligent simply because something went wrong would be to ‘im- permissibly reason backwards from effect to cause’ (para 9).

DE REBUS – JULY 2015 - 32 - FEATURE

The court then provided the following flicting expert evidence, the trial proce- had been at liberty to adduce evidence exposition of the maxim with reference dure, which is essentially the same as in to show that reasonable care had been to relevant authorities (which authori- other cases, is designed to accommodate exercised towards the plaintiff by the ties are trite and therefore not repeated those issues and thus no special difficul- defendant’s employees intra-operatively, here): ‘The maxim is no magic formula ty ought to be encountered to deal with which it declined to do. No version was ... . It is not a presumption of law, but them. When an inference of negligence put during cross-examination to either merely a permissible inference which the would be justified and to what extent ex- the plaintiff or her expert witness. No court may employ if upon all the facts it pert evidence would be required would reasons were offered by the defendant appears to be justified … . It is usually depend on the facts of the particular to explain why the medical staff who invoked in circumstances when the only case. A court is not called on to decide treated the plaintiff were not called as known facts, relating to negligence, con- the issue of negligence until all of the witnesses (para 19). In Ratcliffe v Plym- sist of the occurrence itself … – where evidence is concluded (see Arthur v Be- outh and Torbay Health Authority [1998] the occurrence may be of such a nature zuidenhout and Mieny 1962 (2) SA 566 EWCA Civ 2000 (11 February 1998) Lord as to warrant an inference of negligence. (A) at 573 H). Any explanation offered by Justice Brooke observed that: ‘It is like- The maxim alters neither the incidence the defendant will thus form part of the ly to be a very rare medical negligence of the onus nor the rules of pleading evidential material to be considered in case in which the defendants take the … – it being trite that the onus resting deciding whether a plaintiff has proved risk of calling no factual evidence, when upon a plaintiff never shifts … . Noth- the allegation that the injury was caused such evidence is available to them, of ing about its invocation or application, by the negligence of the defendant (see circumstances surrounding a procedure I dare say, … is intended to displace Osborne Panama SA v Shell & BP South which led to an unexpected outcome for common sense’ (para 10). The court also African Petroleum Refineries (Pty) Ltd a patient. If such a case should arise, the pointed out that it is inappropriate to 1982 (4) SA 890 (A) 897 G – H). judge should not be diverted away from resort to piecemeal processes of reason- In the Goliath matter Ponnan JA found the inference of negligence dictated by ing and to split up the inquiry regarding that the court of first instance allowed the plaintiff’s evidence by mere theo- proof of negligence into two stages. The itself to be diverted away from the infer- retical possibilities of how that outcome court does not adopt the piecemeal ap- ence of negligence displayed by the evi- might have occurred without negligence: proach of first drawing the inference of dence in this case from its ‘heightened The defendants’ hypothesis must have negligence from the occurrence itself (re- focus on the applicability of the maxim the ring of plausibility about it’ (para 48). garding this as prima facie evidence) and res ipsa loquitur to cases based on al- The Goliath judgment provides au- then considers whether this inference leged medical negligence’. In this regard thority for the proposition that a plain- has been rebutted by the defendant’s the court held that the important des- tiff in a medical negligence action is explanation. There is only one inquiry, tinction between onus of proof and an now at liberty to allege that the facts, as namely whether the plaintiff, having re- obligation to produce evidence had be- known to the plaintiff at the time he or gard to all the evidence in the case, has come blurred. At the close of the plain- she pleads his or her case, give rise in discharged the onus of proving, on a tiff’s case in Goliath the plaintiff had themselves to a prima facie case of neg- balance of probabilities, the negligence produced sufficient evidence to support ligence. This may or may not be upheld averred against the defendant. In this re- an inference of negligence on the part at the end of the trial, but at the plead- gard, Ponnan JA opined that it would be of one or more of the medical staff in ing stage it has the effect of compelling better to leave the question in the realm the employ of the defendant who treated the defendant to provide an exculpatory of inference than to ‘become enmeshed the plaintiff. The court pointed out that explanation or run the risk of judgment in the evolved mystique of the maxim’ it was important to bear in mind that in being granted against him. Once the de- (para 11). a civil case it was not necessary to prove fendant has produced an explanation The defendant against whom the infer- that the inference she requests the court the question will be whether the court ence of negligence is sought to be drawn to draw is the only reasonable inference. has been satisfied that in the light of all may produce evidence in order to explain It would suffice for her to persuade the the evidence at the trial that negligence that the occurrence was unrelated to any court that the inference that she advo- and causation have been proved. In the negligence on her part. The defendant’s cates is ‘the most readily apparent and course of reaching that conclusion the explanation will be tested by considera- acceptable inference from a number of judge may or may not be prepared to tions such as probability and credibility. possible inferences’ (see AA Onderlinge draw the inference originally invited by At the end of the case, the court has Assuransie- Assosiasie Bpk v De Beer 1982 the plaintiff (see Hussain v King Edward to decide whether, on all the evidence, (2) SA 603 (A) and Cooper and Another VII Hospital [2012] EWHC 3441 (QB) and probabilities and inferences, the plaintiff NNO v Merchant Trade Finance Ltd 2000 Thomas v Curley [2013] EWCA Civ 117). has discharged the onus of proof on the (3) SA 1009 (SCA)). In Goliath the defend- The occurrence giving rise to the pri- pleadings, on a preponderance of prob- ant, in failing to produce any evidence ma facie inference of negligence should ability, just as the court would do in any whatsoever, took the risk of judgment be one that in common experience does case concerning negligence. The court being granted against it. The defendant not ordinarily happen without negli- then concluded that in every case, in- cluding one where the maxim of res ipsa loquitur is applicable, the inquiry at the ‘The Goliath judgment provides end of the case is whether the plaintiff authority for the proposition that a has discharged the onus resting on her in connection with the issue of negli- plaintiff in a medical negligence action gence. In this regard, the court suggested is now at liberty to allege that the facts, that the time may well have come for our courts to jettison the maxim from our as known to the plaintiff at the time legal lexicon. he or she pleads his or her case, give rise Although medical negligence cases sometimes involve questions of factual in themselves to a prima facie complexity and difficulty, possibly re- case of negligence’. quiring evaluation of technical and con-

DE REBUS – JULY 2015 - 33 - FEATURE gence. The inference of negligence must plaintiff, the defendant must produce prove his explanation. (See P van den be derived from the facts of the occur- evidence sufficient to displace the infer- Heever and P Carstens op cit 34-35 and rence alone. The inference of negligence ence that the precaution was not taken. the authorities referred to.) is only permissible while the cause re- The nature of the defendant’s reply is, ‘Lawyers are often accused of using mains unknown. The instrumentality therefore, dependent on the relative abil- Latin tags to befuddle the public and that causes the harm or damage must ity of the parties to contribute evidence demonstrates that the law is far too diffi- be within the exclusive control of the on the issue. cult to be left to mere laymen. Some Lat- defendant or of someone for whom the • The degree of persuasiveness required in phrases, seem to befuddle the lawyers responsibility or right to control exists. by the defendant will vary according to themselves. Res ipsa loquitur is a case in The prima facie inference of negligence the general probability or improbability point’ (see van den Heever and Carstens may call for some degree of proof in of the explanation. If the explanation is op cit at 183) . rebuttal of the inference. In general the regarded as rare and exceptional in the explanation must comply with the fol- ordinary course of human experience, Pat van den Heever BIur LLB (UFS) lowing principles: much more would be required by way of LLM (UCT) LLD (UP) is an advocate • In cases where the taking of a precau- supporting facts. and Professor of Law at the Uni- tion by the defendant is the initial and • Probability and credibility are consider- versity of the Free State and Nata- essential factor in the explanation of ations that the court will employ to test lie Lawrenson MMus (UKZN) LLM the occurrence, and the explanation is the explanation. (UCT) is an advocate in Cape Town. accessible to the defendant but not the • There is no onus on the defendant to q

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DE REBUS – JULY 2015 - 34 - The widest range of trusted Juta Law titles now available as eBooks!

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@jutalaw Juta Law The beginning of the end – dissolution of marriage under accrual system

By Clement Marumoagae

sets and liabilities are merged in a joint estate in which both spouses, irrespective of the value of their contributions hold equal shares’ (JA Robinson ‘Matrimonial Property Regimes and Damages: The Far Reaches of the South African Consti- tution’ (2007) 10 3 PER 70 at 71). Unless excluded by a will, the general rule is that all the assets that the spouses had before the marriage, as well as assets they accumulate after Picture source: Gallo Images/iStock entering into the marriage fall into the joint estate. Nonethe- less, spouses may retain a separate estate in that certain exceptions do exist where assets do not fall into the joint estate (see s 7(7) of the Divorce Act 70 of 1979). It is well documented that in terms of South African Family Law, people can either marry in community of property, out of community of property with or without the application of the accrual system. The marital regime choice that prospective spouses make will determine their proprietary rights both during the subsistence of their mar- riage and when their marriage is dissolved either by death or divorce. In order for a prospective spouse to marry in any re- gime other than community of property, they have to s a family law practition- conclude an antenuptial contract (ANC). An ANC may er, I have realised that be referred to as a contract that is concluded by pro- when entering into mar- spective spouses before the marriage, which details riage, most people are the terms and conditions of the union and thus ex- not aware of the laws clude community of property. This contract can, that haveA direct effect on their estates and among others, ensure that spouses are not held only get to be conscious of them when liable for each other’s debts and do not share in they divorce. The aim of this article is to each other’s profits arising from the marriage. It highlight different matrimonial regimes in further enables parties to transact without each South Africa, but more particularly to dis- other’s consent where consent would ordinarily be cuss an option available to those whose mar- required if they were married in community of proper- riage is subject to an accrual system as far as ty. In terms of s 87(1) of the Deeds Registries Act 47 of 1937 protecting their claim to the growth of their spouses’ ‘[a]n antenuptial contract executed in the Republic shall be estates is concerned. I will show that the Matrimonial attested by a notary and shall be registered in a deeds Property Act 88 of 1984 (the Act) does provide for registry within three months after the date of its execu- the division of the growth of the marriage without tion or within such extended period as the court may on the parties thereto actually instituting divorce pro- application allow’. As such, I submit that it is imperative ceedings. that such a contract is drafted by a practising notary public, because vaguely drawn antenuptial contracts Marital regimes and the can result in costly litigation when parties divorce, accrual system as was the case in B v B (SCA) (unreported case no 952/12, 24-3-2014) (Lewis JA). In B v B the In practice, parties to a marriage often en- court held that: ter into a marriage without deciding the ‘It is clear to me that the parties did intend marital regime that will be applicable to to exclude community of property and profit their marriage. On divorce, parties are and loss and to adopt the system of accrual: faced with consequences that they did But it is far from clear how they intended not prepare themselves for when they to do that. If the contract had included only married. It is trite that: ‘[i]n the absence the first three clauses they would effectively of an antenuptial contract providing have achieved a contract out of community otherwise, marriage ex lege creates com- of property, subject to the accrual system munity of property and of profit and loss regulated by the Act. But the clauses that fol- – communio bonorum. Community comes lowed are so contradictory and incoherent that into being by operation of law as soon as the in my view they vitiate the contract as a whole. marriage is solemnised. It can be described No certainty has been achieved as to what the as a universal economic partnership of contract meant – what the parties in- the spouses in which all their as- tended to achieve. The contract does

DE REBUS – JULY 2015 - 36 - FEATURE not embody terms that enable this court Division of accrual during either spouse has a right to ensure that to give effect to what their intention he or she protects his or her potential might have been’ (para 19). the subsistence of the claim to the growth of the other spouses’ In this case, the terms of the ANC were marriage estate. Fortunately, the law provides re- inconsistent and incoherent and the con- lief to one spouse if his or her spouse is text did not clarify precisely what the The accrual system can be thought of doing anything that might prejudice his parties intended to achieve. As such, the as a deferred community of gains (HR or her claim to that spouse’s estate. Sec- contract was held to be void for vague- Hahlo The South African Law of Husband tion 8(1) of the Act provides that: ness and the marriage was regarded to and Wife 5ed (Cape Town: Juta 1985) at ‘A court may on the application of a be in community of property (see the 304). ‘During the subsistence of the mar- spouse whose marriage is subject to the headnote of the case). Badly drawn ANCs riage, it is out of community of property accrual system and who satisfies the may lead to spouses being unable to pre- and community of profit and loss. Each court that his right to share in the ac- vent their assets being part of the accru- spouse retains and controls his or her es- crual of the estate of the other spouse at al of the marriage, and thus be subject to tate, but on dissolution of the marriage the dissolution of the marriage is being division when parties divorce. the spouses share equally in the accrual or will probably be seriously prejudiced The Act introduced into South Afri- or growth their estates have shown dur- by the conduct or proposed conduct of can Law the system of accrual, which ing the subsistence of the marriage’ (J the other spouse, and that other persons could be made applicable to marriages Heaton South African Family Law 3ed will not be prejudiced thereby, order the contracted out of community of prop- (Durban: LexisNexis 2010) at 94). The immediate division of the accrual con- erty and of profit and loss by way of an practical implication of the accrual sys- cerned in accordance with the provisions ANC (See B v B (SCA) (unreported case no tem is outlined in s 3(1) of the Act, which of this Chapter or on such other basis as 700/2013, 25-9-2014) (Gorven J) para 4). provides that ‘[a]t the dissolution of a the court may deem just.’ In terms of s 2 of the Act all marriages marriage subject to the accrual system, This is a remarkable provision in our out of community of property, in terms by divorce or by the death of one or both family law, which has not yet been tested of an ANC are subject to the accrual of the spouses, the spouse whose estate by our courts, simply because we are not system ‘except insofar as that system is shows no accrual or a smaller accrual advising our client of this possibility. expressly excluded by the [ANC]’. This than the estate of the other spouse, or With this provision, spouses need not simply entails that if spouses do not his estate if he is deceased, acquires a institute divorce proceedings in order wish an accrual system to be applicable claim against the other spouse or his to protect their share in the accrual of to their marriage they need to expressly estate for an amount equal to half of the estate of their spouses. If one spouse exclude it from their ANC. Nonetheless, the difference’. It was held in Reeder v has acquired any financial benefit that if parties decide to marry out of commu- Softline Ltd and Another 2001 (2) SA 844 grew his or her estate, namely, shares, nity of property subject to the accrual (W) at 849, that ‘a spouse who alleges and subsequently negligently disposes system, they still have a choice to list that her estate has shown no accrual or of such shares with ‘a view of prejudic- their individual assets, which they wish a smaller accrual than the estate of the ing’ the potential share the other spouse not to be part of the accrual, which will other spouse, and who ... claims half the on his or her estate, then the spouse who effectively be excluded when the accrual difference of the accrual between the two is likely to be prejudiced may launch an is calculated should they divorce. How- estates, has a contingent right and not a application to the High Court for the di- ever, it must be borne in mind that there vested right.’ This simply means that no vision of the accrual in terms of s 8(1) are certain assets that are automatically spouse has a claim to a specific asset in without first having to institute divorce excluded from forming part of an indi- the estate of the other, but has a future proceedings. In terms of s 8(2) of the Act vidual spouse’s estate. In terms of s 5(1) claim that could arise when parties di- if the court orders immediate division, it of the Act ‘[a]n inheritance, a legacy or vorce or in terms of s 8 of the Act to the may also order that the marriage will no a donation which accrues to a spouse accrual in the other spouse’s estate. longer be subject to the accrual system during the subsistence of his marriage, Even though it is rare and case law is and will from the date of the order be as well as any other asset which he ac- not particularly clear in this regard, it subject to complete separation of prop- quired by virtue of his possession or nonetheless appears that if the estates erty. former possession of such inheritance, of parties to a marriage subject to an ac- legacy or donation, does not form part crual system are substantially the same, Conclusion of the accrual of his estate, except in so there can be no sharing. The accrual sys- The discussion regarding calculation far as the spouses may agree otherwise tem was designed to protect the spouse of the accrual is beyond the scope of in their antenuptial contract or in so far whose estate during the marriage could this article, which has shown that it is as the testator or donor may stipulate not grow substantially the same as com- possible for spouses who are married, otherwise’. pared to that of his or her spouse thus subject to an accrual system, to apply Furthermore, ‘a donation between allowing a spouse with a smaller estate during the marriage for the division of spouses, other than a donation mortis to claim a share in his or her spouse’s growth of the estate of the other spouse. causa, is not taken into account either estate, which showed greater or sub- Basically as far as the accrual system is as part of the estate of the donor or as stantial growth. The accrual system of- concerned, spouses have independent part of the estate of the donee’ in the de- ten becomes a reality when the spouses estates, which they are individually re- termination of the accrual of the estate divorce or in death because in terms of sponsible for and on the dissolution of of a spouse (see s 5(2) of the Act). It is s 3(2) of the Act a spouse with a smaller the marriage, the growth in the value of important to note that ‘an asset which accrual can only claim on the dissolution such estates, which was accumulated has been excluded from the accrual sys- of the marriage. during the subsistence of the marriage tem in terms of the [ANC] of the spouses, Every spouse who is married subject will be shared equally between the par- as well as any other asset which he ac- to an accrual system has an interest on ties. quired by virtue of his possession or for- how the estate of the other is doing. As mer possession of the first-mentioned such, it is in the interest of both spouses Clement Marumoagae LLB LLM asset, is not taken into account as part that their separate independent estates (Wits) LLM (NWU) Diploma in Insol- of that estate at the commencement or are not handled in such a manner as to vency (UP) is an attorney at Maru- the dissolution of his marriage’ (s 4(1)(b) prejudice the potential claim that the one moagae Attorneys in Itsoseng. q (ii) of the Act). has on the other’s estate. I submit that

DE REBUS – JULY 2015 - 37 - Picture source: Gallo Images/iStock source: Picture

By Jacques F Rossouw Beware of undertakings: The irrevocable instruction that was revoked

ommercial realities demand Factual background which later formed the basis of the re- that conveyancing attorneys spondent’s cause of action against the provide guarantees and un- The appellant, Stupel & Berman Inc, was appellant. dertakings in order to fulfil appointed by the seller to transfer an im- The appellant gave undertakings that their mandates to transfer im- movable property sold at auction. it was attending to the transfer, that the Cmovable property. Pending transfer, the client obtained respondent had purchased the sale pro- What then is the legal effect of these two bridging finance loans (the discount- ceeds (the cession which formed the ba- undertakings and to what extent do prac- ing agreements) from the respondent, sis for the undertaking) and that it had titioners unwittingly expose themselves Rodel Financial Services, in the amount received ‘irrevocable instructions’ from to personal liability by giving them? of R 1,4 million. the client to pay the loan amount to the The Supreme Court of Appeal (SCA) re- The agreements consisted of two respondent on transfer ‘unless prevent- cently had to rule on this suit. The case parts, the discounting schedule and sep- ed by interdict or operation of law’. The turned on the legitimacy of a client’s arate terms and conditions. undertakings further obligated the ap- purported irrevocable instructions, and Each schedule was signed by the cli- pellant to keep the respondent advised more specifically the answer to the ques- ent, the respondent and the appellant, of all material developments in the sale tion of when an attorney may disregard in its capacity, as conveyancer. In each and to advise in the event that the client such instructions. schedule the client purported to cede to terminated or attempted to terminate its This SCA’s judgment was delivered the respondent its right, title and inter- mandate. under the citation of Stupel & Berman Inc est in the nett proceeds of the sale. Pursuant to a transfer duty dispute, v Rodel Financial Services (Pty) Ltd 2015 Each schedule contained a section the client cancelled the sale agreement, (3) SA 36 (SCA). titled ‘Undertaking by Conveyancer’, whereupon the purchaser obtained an in-

DE REBUS – JULY 2015 - 38 - FEATURE terim interdict to prevent the client from titioners are well advised to take note of security for repayment, the client pro- disposing of the property. This dispute the other defences. vides the bank with a power of attorney became settled and the parties agreed to The court a quo was not persuaded to register a mortgage bond over the proceed with the sale and transfer. The and awarded judgment against the ap- client’s immovable property. After ad- respondent was informed of these devel- pellant. It applied a (rather perplexed) vancement of the loan, but before the opments by both the client and the ap- hybrid of legal principles involving agen- mortgage bond is registered, the client pellant, although the client misinformed cy, tripartite agreement, stipulatio alteri withdraws the bank’s mandate to act. the respondent about the settlement in and adjectus solutionis causa, and there- Since the bank has a real interest in the an attempt to pay the respondent a re- by concluded that the appellant was not mandate it may regard the instruction as duced amount. entitled to withdraw its undertakings truly irrevocable and may thus proceed The respondent then elected to cancel (see the court a quo judgment at Rodel to register the mortgage bond notwith- the discounting agreements, presumably Financial Services (Pty) Ltd v Stupel & Ber- standing the purported withdrawal of on the basis of the client’s misrepresen- man Inc and Another (GJ) (unreported the mandate (Natal Bank Ltd v Natorp tation and proceeded with legal action case no 2011/43229, 28-10-2013) (Claas- and Registrar of Deeds 1908 T.S. 1016). against the client for payment of the full sen J)). It did, however, provide leave to amount owing. appeal directly to the SCA, stating that Revoking the irrevocable The client accepted the cancellation the relevant principles were of national instruction and instructed the appellant to withdraw importance to practitioners. A third party will never obtain a right from ‘any and all undertakings’ provided The SCA found that the undertakings to bind an agent to a mandate revoked by the appellant to the respondent on provided by the appellant did not con- by the principal, even if the exception to the client’s behalf. The client thus re- stitute irrevocable undertakings binding the general rule of agency applies. The voked what purported to be its irrevoca- the appellant personally. The very terms mandate may be regarded as irrevocable ble instructions. of the undertakings foresaw the possibil- only at the agent’s instance and for its The appellant consequently advised ity of the client withdrawing the appel- benefit only. the respondent that its mandate (to lant’s mandate, and had the undertak- It follows that in the case under dis- provide the undertakings) had been ter- ings been personal, termination of the cussion the respondent could not rely minated and it therefore withdrew its mandate would have been inconsequen- on the exception to the general rule of undertakings. The respondent failed to tial to the respondent. agency. It was found that the appellant’s lay claim to the proceeds, object or even In terms of the law of agency instruc- interest in its fees for the conveyancing reply to the appellant at all. tions to an agent are generally revocable transaction was derived from the sale Approximately five weeks later, the at the instance of the principal. The fact agreement and it had no real interest in transfer of the property was registered that instructions are described as ‘irrev- the discounting agreements. Even if the in the name of the purchaser and the ocable’ does not detract from this prin- appellant had a real interest in the dis- nett proceeds of the sale were paid to the ciple (Ward v Barrett NO and Another counting agreements, the right to regard client. The respondent proceeded to ob- 1962 (4) SA 732 (N) at 737 D – E). the mandate as irrevocable vested in the tain civil judgment against the client and The converse is also true – even if an appellant and not in the respondent. its surety, whereafter it attempted to undertaking makes reference to agency The SCA further found that the re- execute without success. Approximately or is not described as irrevocable, it may spondent’s predicament had resulted five months after the withdrawal, the re- nonetheless bind the agent personally from its own failure to protect its inter- spondent demanded payment (including (Ridon v Van der Spuy and Partners (Wes- ests by taking appropriate action. Had substantial discounting fees) from the Kaap) Inc 2002 (2) SA 121(C)). the respondent claimed a right to the appellant. In determining whether an undertak- proceeds at the time of the appellant’s ing is truly irrevocable and thus per- withdrawal of the undertakings, inter- Litigation sonally binding on the agent, context is pleader proceedings would have result- The appellant denied liability and the re- everything. Regard should be had to the ed. At that stage the respondent was also spondent instituted legal action against true import of the undertaking within in a position to interdict the client and/ it on the basis of the appellant’s suppos- the full context of the circumstances in or the appellant but failed to do so. edly irrevocable undertakings. Protract- which it is given (Ekurhuleni Metropoli- Consequently, the SCA upheld the ap- ed litigation followed. tan Municipality v Germiston Municipal peal and found that the appellant was The appellant raised various defences Retirement Fund 2010 (2) SA 498 (SCA) not merely entitled, but indeed obliged, including: para 13). Practitioners should be sure to to act on the client’s termination of its • Agency, in that the appellant, as agent, categorically and unequivocally record mandate, thereby precluding the appel- was obliged to withdraw from its under- the context within which they give an lant, by the operation of law, from paying takings. undertaking, to avoid being personally the respondent from the sale proceeds. • Invalid cession, in that there was a bound. Rather overemphasise than un- To recapitulate, when an attorney acts prior cession to the mortgagee, the pur- derscore this fact. as agent for his client and has no real chaser did not consent to the cession of The question then arises as to whether interest in the matter at hand, there is a portion of the sale proceeds and also a client can ever provide an attorney no such thing as an ‘irrevocable instruc- that the cession reverted on cancellation with a truly irrevocable instruction, in tion’. the absence of the attorney binding him- of the discounting agreements. • See 47. self personally. The answer is ‘yes’, but • Waiver and estoppel, in that the re- • Mr Rossouw’s firm was the appellant in only if the agent has a real interest in spondent only disputed the validity of the above matter. the appellant’s revocation of its mandate the mandate. This constitutes an excep- after the property had been transferred. tion to the general rule of agency (Con- solidated Frame Cotton Corporation Ltd Agency – the irrevocable v Sithole and Others 1985 (2) SA 18 (N) undertaking and at 22J – 23C). An example of an agent vested with a Jacques F Rossouw BProc LLB (UJ) instruction real interest in the mandate of the prin- is an attorney at Stupel and Berman This article will focus on the agency as- cipal is that of a finance bank (agent) Inc in Johannesburg. q pect of the appellant’s defence, but prac- making a loan to a client (principal). As

DE REBUS – JULY 2015 - 39 - Picture source: Gallo Images/iStock source: Picture

Biodiversity law and the weeding out of alien species

By Ian Cox, Ilan Lax and Peter Britz

DE REBUS – JULY 2015 - 40 - FEATURE

t took the threat of a court order, environment anthropocentrically (hu- species. Yet, neither NEMBA nor NEMA, but the Minister of Environmental man centred). The environment is thus contains any policies, norms or stand- Affairs (Minister) has finally given not just the physical world we live in. It ards that assist the Minister in deciding effect to ch 5 of the National Envi- incorporates a human, people first per- which alien species should be exempted ronmental Management: Biodiver- spective of the environment by including or how permits should be issued. It is sity Act 10 of 2004 (NEMBA) and as an essential attribute of the environ- not surprising, therefore, that the Minis- Ipublished the alien and invasive spe- ment, ‘the physical, chemical, aesthetic ter has abrogated most of part 1 of ch 5 cies (AIS) lists and regulations. Rushed and cultural properties and conditions’ by exempting all alien species lawfully through on 1 August 2014, nearly eight of that physical world insofar they ‘influ- introduced into South Africa. years out of time, in order to beat the ence human health and well-being’. judgment in the matter of Kloof Con- Invasive species servancy v Government of the Republic NEMBA and NEMA Invasive species must be listed as such of South Africa and Others (KZD) (unre- NEMBA was enacted to provide for the by the Minister before they are regarded ported case no 12667/2012, 22-10-2014) management and conservation of South as invasive. ‘Invasive species’ are defined (Vahed J), the lists proclaim 559 invasive Africa’s biodiversity. Sections 6 and 7 as species ‘whose establishment and species in terms of what is a bewildering of NEMBA require it to be read in con- spread outside of its natural distribution matrix of areas, categories and exemp- junction with NEMA and applied in con- range – tions. formity with the NEMA principles. Thus (a) threaten ecosystems, habitats or The purpose of this article is to look NEMBA must also be interpreted and ap- other species or have demonstrable po- critically at ch 5 of NEMBA and ask: Are plied so that the needs of human beings tential to threaten ecosystems, habitats the AIS lists and regulations lawful? are placed uppermost and references to or other species; and the environment must be consistent with (b) may result in economic or environ- NEMA the NEMA definition. mental harm or harm to human health.’ NEMBA is one of the laws built around Section 73(2)(b) of NEMBA states that the framework that is the National Envi- Chapter 5 of NEMBA ‘A person who is the owner of land on ronmental Management Act 107 of 1998 Chapter 5 of NEMBA deals with the man- which a listed invasive species occurs … (NEMA). NEMA is a human rights-based agement of alien species and the control must take steps to control and eradicate law that is intended to give effect to the of species that are to be listed as inva- the listed invasive species and to prevent environmental right contained in s 24 of sive. Alien species are dealt with in part it from spreading.’ ‘Control’ is defined in the Constitution. 1 of ch 5 and invasive species in part NEMBA as meaning ‘to combat or eradi- The Constitutional Court described 2. Chapter 5 also deals with genetically cate … or … where such eradication is the environmental right in these terms modified organisms in part 3 (that falls not possible, to prevent, as far as may be in Fuel Retailers Association of Southern outside the scope of this article). practicable, the recurrence, re-establish- Africa v Director-General: Environmen- ment, re-growth, multiplication, propa- tal Management, Department of Agri- Alien species and NEMBA gation, regeneration or spreading of an culture, Conservation and Environment, NEMBA defines alien species as any alien or invasive species.’ Mpumalanga Province, and Others 2007 species introduced deliberately or ac- Like alien species, the use of invasive (6) SA 4 (CC). cidentally into South Africa by human species is strictly circumscribed through ‘The Constitution recognises the inter- beings at any time during human exist- a process of permitting and exempting relationship between the environment ence. Alien species cannot become natu- restricted activities. The same criminal and development; indeed it recognises ralised under NEMBA. The principle is: sanctions apply. Unlike alien species, the the need for the protection of the envi- Once alien always alien. Consequently issue of permits is limited in terms of ronment while at the same time it recog- many species that have been present s 91 to cases where the impact on bio- nises the need for social and economic in South Africa for centuries and which diversity is negligible. Exemptions only development. It contemplates the inte- hugely benefit human health and wellbe- apply to restricted activities as invasive gration of environmental protection and ing must nonetheless be managed under species themselves cannot be exempted. socio-economic development. It envis- NEMBA because they are alien. For exam- ages that environmental considerations ple, most species used in agriculture are What is invasive? will be balanced with socio-economic alien. There are no policies or norms and considerations through the ideal of sus- Indigenous species can also become standards that assist the Minister in tainable development. This is apparent alien if they are introduced into areas deciding what is invasive or inform the from s 24(b)(iii), which provides that the within South Africa where they did not public how this decision is made. De- environment will be protected by secur- originally occur. These are called extra- partment of Environmental Affairs (DEA) ing “ecologically sustainable develop- limital indigenous species. It also follows says that it lacks the capacity to give ment and use of natural resources while that most so-called indigenous gardens reasons for listing each of the 559 listed promoting justifiable economic and so- in fact contain such alien plant species invasive species, which makes it difficult cial development”. Sustainable develop- because those plants are not endemic to to identify the reasons underlying the ment and sustainable use and exploita- the area where the garden is located. Minister’s decision to do this. This dif- tion of natural resources are at the core NEMBA legislates for the management ficulty is compounded by the fact that of the protection of the environment.’ of alien species including extra-limital many socially and economically useful NEMA gives effect to this purpose. It indigenous species by prohibiting a wide species have been listed as invasive de- seeks to encourage sustainable develop- range of restricted activities, unless the spite the legislated obligation to control ment by integrating the environmental species is exempted by the Minister or such species by a process of eradication principles set out in s 2 of NEMA into de- the activity is authorised by a permit. or prevention. velopment planning and implementation The penalties for noncompliance are se- It is suggested that one reason why but always on the basis that people and vere and could result in a fine of up to socially and economically useful species their needs must be placed at the fore- R 10 million or up to ten years’ imprison- have been listed as invasive is that the front of a decision maker’s concern. ment or both. definitions used in science for determin- It should not be surprising given the No other country in the world has at- ing what is invasive are not the same as human rights perspective of the envi- tempted such an ambitious or draconian the legal definition. The science, which ronmental right that NEMA defines the scheme for defining or managing alien studies the impact of alien species on in-

DE REBUS – JULY 2015 - 41 - FEATURE digenous or native species is known as and regulations that allows for the con- than one meaning is possible, each pos- invasion biology. Invasion biology is a tinued use and propagation of socially sibility must be weighed in the light of relatively new field of study with the re- and economically useful listed invasive all these factors. The process is objec- sult that there is still uncertainty among species by listing them under four dif- tive not subjective. A sensible meaning invasion biologists regarding the scope ferent categories (1(a), 1(b), 2 and 3). is to be preferred to one that leads to and nature of the science and even what insensible or unbusinesslike results or is an invasion. For example, invasion bi- Are the AIS lists and undermines the apparent purpose of the ologists define invasive species either in regulations lawful? document.’ terms of the capacity of self-sustaining Laws having penal consequences must We do not think the AIS list and regula- alien species to spread over long distanc- also be interpreted narrowly (see, for tions are lawful. We see them as an in- es or in terms of the capacity of those example, Democratic Alliance v African vention of the DEA designed to try and species to harm indigenous species (DM National Congress and Another 2015 (2) fit a science based definition of invasive Richardson (ed) Fifty Years of Invasion SA 232 (CC)). NEMBA is such a law. species in a legal scheme that defines in- Ecology (New Jersey: Wiley Blackwell We therefore submit that when the vasive species in much narrower terms. 2011) at 413 (www.leg.ufpr.br/~eder/eb- definition of invasive refers to environ- We contend that the DEA’s ‘science- ooksclub.org__Fifty_Years_of_Invasion_ mental harm one is not dealing only based’ approach ignores the anthro- Ecology__The_Legacy_of_Charles_Elton. with harm to the physical world we live pocentric nature of constitutional pdf, accessed 2-6-2015). in. The harm to that physical world must legislation and the balancing act that These scientific definitions of inva- also be sufficiently severe to harm hu- is required in the implementation of siveness are much wider than the defini- man health and wellbeing. Likewise one such laws through consultation and tion contained in NEMBA. They are also cannot ignore the definition of control. in particular the cooperative govern- wider than the legal definition of inva- Control in NEMBA means to eradicate ance mechanisms set out in NEMA. We siveness as it is applied elsewhere in the and, if that is not possible, to prevent are concerned that the misalignment world. Thus, for example, the recently the propagation or spread of the species. between this approach and the rights- promulgated European Union Invasive This clear and plain meaning of control based principles enshrined in the Con- Species Regulations (Regulation of the is, we argue, not compatible with the stitution and carried through into NEMA European Parliament and the Council propagation of an invasive species for not only poses a threat to human rights, on the prevention and management of beneficial use such as would happen, for but it has created a governance problem the introduction and spread of invasive example, if the species is used in agri- which can be seen, inter alia, in the huge alien species 2013/0307 (COD)) also de- culture. delay in publishing the Environmental fine invasiveness in relation to the harm The application of this narrow legal Impact Assessment Lists and Regula- a species causes to human health and definition of invasive would result in tions. wellbeing. a much shorter list of invasive species At a technical level this approach also than the 559 species that are currently ignores the definition of control as it The DEA’s approach declared invasive. This would result in is applied to invasive species and the a much more practical and cost effec- The DEA adopts what it calls a science meaning of environment as it is used in tive approach to the implementation of based approach to managing biodiversi- that definition. Legal canons of interpre- NEMBA. ty. It relies heavily on invasion biologists tation demand the precise interpretation to assist and advise it in the implementa- of words in order to ascertain the pur- Conclusion tion of this approach. pose and meaning of statutes. The SCA We, therefore, question the validity of The DEA does not accept that there held in Natal Joint Municipal Pension the present AIS lists and regulations. We is any difference between the scientific Fund v Endumeni Municipality 2012 (4) suggest that the DEA has misunderstood definition of invasive and the definition SA 593 (SCA) that: the anthropocentric nature of the envi- of invasive in NEMBA. In particular, it is ‘Whatever the nature of the document, ronmental right. The intended imple- of the view that its approach to listed consideration must be given to the lan- mentation also disregards the meaning invasive species is not limited to merely guage used in the light of the ordinary of control as it is used in ch 5 of NEMBA controlling these species, but includes rules of grammar and syntax; the con- and the application of the constitution- the general management of invasive spe- text in which the provision appears; the al principles of good governance and cies even for the purposes of propaga- apparent purpose to which it is directed; sustainable development articulated tion for beneficial use. The Minister has and the material known to those respon- in NEMA. The root of the problem ap- thus introduced a scheme in the AIS list sible for its production. Where more pears inherent in DEA’s science-based approach. A solution may lie in a more integrated, balanced and constitutional Do you have something that you would like approach, which admits the rights-based governance imperatives that exist out- to share with the readers of De Rebus? side of science and which concentrate on how South Africa can protect its biodi- Then write to us. versity while at the same time sustaining the health and wellbeing of present and future generations of South Africans. De Rebus welcomes letters of 500 words or less.

Letters that are considered by the Editorial Committee Ian Cox BA LLB (UKZN) is an attor- deal with topical and relevant issues that have a ney at Cox Attorneys in Durban, Ilan Lax BA LLB (UKZN) is an attorney at direct impact on the profession and on the public. Ilan Lax Attorneys in Pietermaritz- burg and Peter Britz PhD (Rhodes) is Send your letter to: [email protected] a professor at Rhodes University in Grahamstown. q

DE REBUS – JULY 2015 - 42 -

THE LAW REPORTS

May 2015 (1) South African Law Reports (pp 1 – 312); [2015] 2 All South African Law Reports April no 1 (pp 1 – 126); and no 2 (pp 127 – 250); 2015 (3) Butterworths Constitutional Law Reports – March (pp 243 – 376)

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Heinrich Schulze BLC LLB Criminal Law Reports. Readers should note that some reported judgments may (UP) LLD (Unisa) is a have been overruled or overturned on appeal or have an appeal pending against professor of law at Unisa. them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.

Abbreviations: the defendant of the mandate plaintiff’s ability to work was tiff’s claim for general dam- given to it to institute and totally compromised. The ages. The plaintiff’s claim was CC: Constitutional Court pursue the claim against the court had to place itself in thus dismissed with costs. ECP: Eastern Cape Local Divi- RAF with the standard of dili- the defendant’s position in However, the court referred sion, Port Elizabeth gence, care and skill, which August 2011 and ascertain to the attorney and client GJ: Gauteng Local Division, could reasonably be expected the plaintiff’s condition as bill of costs prepared by the Johannesburg of a practising attorney. Es- assessed by the defendant- defendant and held that the GP: , Pretoria sentially, the plaintiff con- attorney at that time. If the amount of hours and days SCA: Supreme Court of Ap- tended that the defendant court found that there had charged for in the attorney peal should have pursued both a been negligence as described, and client bill were substan- WCC: Western Cape Division, claim for loss of support and the plaintiff had to prove tially higher than those re- Cape Town a claim for loss of earning po- damages, which required flected in the party and party tential as they were not mutu- proof of the likelihood of suc- bill of costs. The inference Attorneys ally excluding. cess in the action and that was inescapable that the at- Actions against attorneys: The crisp question before the damages were within the torney and client bill was ma- In Fourie v Ronald Bobroff & the court was whether the de- contemplation of the parties nipulated in order to obtain Partners Incorporated [2015] fendant was negligent in as- when the contract was con- a higher fee from the plain- 2 All SA 210 (GJ) Fourie, the sessing that the plaintiff was cluded. tiff. The court accordingly plaintiff, was an erstwhile still able to work and that her In applying these legal prin- ordered that the matter be client of Ronald Bobroff At- income earning capacity was ciples to the facts, the court investigated by the provincial torneys, the defendant. The only diminished by 10%. pointed out that an actuarial law society. plaintiff sued the defendant Weiner J held that the ques- report established that the for damages allegedly suf- tion whether the defendant defendant had accepted a Company law fered in her personal capacity acted negligently, involved settlement significantly in Intervention and postpone- and on behalf of her minor ascertaining whether the de- excess of the actuarial as- ment of winding-up: In Absa son, as a result of the alleged fendant, in choosing to pur- sessment of the total value of Bank Ltd v Africa’s Best Miner- under-settlement on 1 August sue the loss of support claim plaintiff’s loss of support and als 146 Ltd; In re: Sekhukhune 2011 of her and her son’s as opposed to the loss of loss of earnings claims. The NO v Absa Bank Ltd [2015] 2 claims against the Road Ac- earning capacity claim, acted defendant could, therefore, All SA 8 (GJ) the facts were as cident Fund (RAF). The plain- negligently. That turned on not be held to have been neg- follows: In September 2010 tiff’s claim was based on the the question whether the de- ligent in settling as it did. The the applicant, ABSA, and the alleged negligent breach by fendant’s assessment of the same applied for the plain- respondent, African Best Min-

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DE REBUS – JULY 2015 - 44 - LAW REPORTS erals Ltd (ABM), entered into it should grant a winding-up of the unit, and consequently (CD) were entitled to claim a written loan agreement in order. Section 344(f) of the there had never been con- payment of the entire debt terms of which ABSA ad- Companies Act 61 of 1973 sensus as to the subject of forthwith if Arun Holdings vanced an amount of R 9,55 (the Act) provides that a com- the sale. Tatrim’s mistake defaulted and failed to cor- million to ABM. ABM had to pany may be wound-up if it was also reasonable. As for rect the default within four repay the loan over a period is unable to pay its debts in the ‘representation clause’, days of receiving a written of 83 months. One of the terms of s 345 of the Act. Sec- it, along with the rest of the notification by CD. terms of the loan agreement tion 345 is a deeming provi- agreement, had been void Arun Holdings failed to was that, should ABM fail to sion. In terms of that provi- from the start. In this regard make payment of an instal- make any monthly payment sion, a company is deemed the court held as follows: ‘[T] ment of R 42 133 and was due, the full outstanding unable to pay its debts if a he [misrepresentation] taints duly notified by CD by e-mail. amount became due and pay- debt exceeding R 100 is due, consent to the whole con- Arun Holdings made payment able. The loan agreement also the creditor has served a de- tract, including the exemp- within the period allowed, but contained the usual ‘no in- mand for payment and the tion clause. All the terms of failed to pay an additional dulgence and full agreement’ company has for three weeks the contract together regulate amount of R 87 in default clause in the agreement. thereafter failed to meet the the contract’s object, and it is interest. The e-mail demand ABM defaulted by failing to demand. difficult to see how the con- made no mention of the de- make payment as required. ABSA had made out a case sent can but stand or fall as fault interest. As a result, ABSA applied for the relief it sought, and a whole. It seems impermissi- After a disagreement ab­ for a final winding-up order the court granted the wind- ble to find a separate untaint- out an unrelated event, CD against ABM. The court was ing-up order. ed consent to the exemption claimed payment of the full also asked to pronounce on clause.’ outstanding amount of R 7,6 the merits of an application Contract law The appeal was dismissed million and execution on the by the Honourable King KK Consensus: In Spenmac (Pty) with costs. security (cession of shares) Sekhukhune (King Sekhuk- Ltd v Tatrim CC 2015 (3) SA provided by Arun Holdings. hune) who sought leave to 46 (SCA); [2014] 2 All SA 549 Legality of acceleration Arun Holdings contended intervene in the matter on a (SCA) the appellant, Spenmac, clause: The facts in Combined that the e-mail notification number of grounds, and an was the owner of a unit in a Developers v Arun Holdings from CD did not constitute application by ABM for post- sectional title scheme. Spen- and Others 2015 (3) SA 215 a demand as contemplated ponement, linked to the inter- mac innocently misrepresent- (WCC) were as follows: The in the contract. It read as fol- vention application. ed to the respondent, Tatrim, parties concluded a loan lows: Vally J held that a party that the unit was one of only contract containing an ac- ‘Please see below and at- that wishes to intervene must two in the scheme, and that celeration clause in terms of tachment, we have not yet demonstrate an interest in the owner of the unit had a which Combined Developers received payment. Will you the proceedings that is not right to veto any subdivision just a mere financial interest. of the other unit. The misrep- An application to intervene resentation induced Tatrim solely as a shareholder or to enter into an agreement to solely as a creditor is insuf- buy the unit. One of the provi- ficient. The intervener must sions of the contract was an demonstrate that he has a acknowledgement by Tatrim legal interest to protect and that it had not been induced Time billing at your fingertips not just a financial interest in by any representation to en- the matter. The legal interest ter into the agreement; and must also be material enough that it waived any rights it to affect the outcome of might have acquired as a re- the winding-up application. sult of such a representation Those requirements were not (the so-called ‘representation met in the application to in- clause’). tervene, and the application Tatrim later became aware was accordingly dismissed. of the true position and it ABM’s application to post- applied successfully to the Your time is finite - why waste pone the matter was said to ECP for a declaration that the it on manual capturing? be to allow ABM to file an agreement was void. application for direct access On appeal by Spenmac to Capture every call accurately, to the Constitutional Court. the SCA, Mthiyane DP ex- reliably and simply, directly on your mobile phone No steps had yet been taken plained that at the heart of in that regard, and there was the dispute between the par- Use the MobiTrac time billing App to track no explanation for that from ties is whether a misrepre- consulting time in meetings ABM. The application for sentation on the part of Spen- postponement was thus de- mac’s representative, at the Automatically added to your billing system at nied. time of the conclusion of the your hourly rate Regarding the winding-up agreement, resulted in a fun- application, the court noted damental mistake. MobiTrac – South Africa’s premium time billing that ABM was indebted to The court held that the App for increased recoveries ABSA, had failed to pay the agreement had been void amount due and owing, and from the outset. Spenmac’s T: 011 656 5000 E: [email protected] www.ecodas.co.za was commercially insolvent. misrepresentation had in- The only remaining issue be- duced Tatrim to make a mate- fore the court was whether rial mistake about the nature

DE REBUS – JULY 2015 - 45 - please rectify it and if pay- NO and Another v Shoprite stances would be against pub- was required to furnish one ment has already been made, Checkers (Pty) Ltd t/a OK lic policy. performance and seven war- forward proof payment of the Franchise Division 2004 (5) ranty guarantees (the prin- same’ (own translation). SA 248 (SCA); [2004] 2 All SA Nature of on demand guar- cipal guarantees) to the UOI. Davis J held that there is 268 (SCA)). antee: In State Bank of India Denel instructed the second nothing inherently wrong The court reasoned that an and Another v Denel Soc Lim- respondent, ABSA, to attend with an acceleration clause objective standard to deter- ited and Others [2015] 2 All to the issuing of the principal which requires constitutional mine unconscionability can SA 152 (SCA) the court was guarantees. ABSA instructed scrutiny. However, the inter- be found in the normative asked to pronounce on the the appellants, the Indian pretation and enforcement of framework of the Constitu- nature of ‘on demand guaran- banks, to issue the eight prin- contract clauses must not go tion. Relying on the concept tees’. In doing so it confirmed cipal guarantees in favour of against public policy, which of ubuntu, there is a require- the position as laid down in a the UOI. In turn, ABSA issued must accord with the norms ment in contract that parties long line of earlier decisions, eight counter-guarantees in of the Constitution. The court should interact with each including those in Loomcraft favour of the Indian banks pointed out that this was the other in good faith. It con- Fabrics CC v Nedbank and in consideration for the eight legal position also in the pre- cluded that implementation Another 1996 (1) SA 812 (A); principal guarantees issued Constitutional era (see Sasfin of the acceleration clause in [1996] 1 All SA 51; Lombard by the Indian banks. (Pty) Ltd v Beukes 1989 (1) SA this case is so startlingly dra- Insurance Co Ltd v Landmark When the UOI contended 1 (A)). conian and unfair that this Holdings (Pty) Ltd and Others that Denel had breached its The court was at pains particular construction of the 2010 (2) SA 86 (SCA); [2009] contractual obligations and in emphasising that courts clause must be in breach of 4 All SA 322; and Guardrisk called on the Indian banks to should be careful to invoke public policy. Insurance Company Ltd and pay the amounts of the prin- public policy, it does not The court accordingly dis- Others v Kentz (Pty) Ltd [2014] cipal guarantees to it, the In- mean that public policy has missed the claim with costs. 1 All SA 307 (SCA). dian banks duly complied and no role to play in this context. It based its decision on two The salient facts were that then called on ABSA to pay A creditor who implements a grounds. First, the demand the first respondent, Denel, the corresponding amounts contract in a manner which in the e-mail was ambiguous and the third respondent, due in terms of the counter- is unconscionable, illegal or and not a proper demand as Union of India (UOI), con- guarantees. ABSA advised immoral will find that a court required in terms of the con- cluded four written contracts Denel that it intended mak- will refuse to give effect to tract. The demand should un- in terms of which Denel un- ing payment to the Indian such implementation even der the circumstances at least dertook to supply the UOI banks of the amounts due in though the contract remains have specified the amount with defence-related equip- terms of the eight counter- binding. In this regard the claimed. Secondly, a strict ment. As security for the guarantees and to recover court referred with approv- enforcement of the accelera- due performance of its con- the aggregate payments from al to the decision in Juglal tion clause under the circum- tractual obligations, Denel Denel. Denel argued that the

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UOI was entitled to call up Repudiation: In B Braun conveyancer in the registra- proceeds from the sale from the principal guarantees. As a Medical (Pty) Ltd v Ambasaam tion and transfer of certain Stupel. result, so Denel argued, ABSA CC 2015 (3) SA 22 (SCA) the immovable property. The The court a quo held that was not lawfully bound to court was asked to pronounce property was sold by one Am- Rodel was in the position of honour the counter-guaran- whether a demand for perfor- ber Falcon Properties 3 (Pty) an adjectus solitionus causa tees. It obtained an interim mance, linked to a right of Ltd (Amber). While awaiting (adjectus), and as a result, interdict restraining ABSA cancellation of the contract transfer of the property, Am- Amber could not withdraw its from making payment to the in the event of non-adherence ber obtained bridging finance instruction to Stupel to pay Indian banks on the counter- to the demand, constitutes from the respondent, Rodel, Rodel. Stupel was ordered to guarantees. The interim order breach of contract in the form in terms of two discounting pay the proceeds to Rodel. was confirmed. The Indian of repudiation. agreements (the agreements). On appeal Brand JA point- banks appealed the decision At the heart of the dis- In terms of the agreements ed out that an adjectus is an to confirm the interim order. pute, between the appellant, Stupel was appointed as con- entity, other than the credi- Fourie AJA confirmed the Braun, and the respondent, veyancer and Amber under- tor, to whom, by agreement trite principle that banks Ambasaam, were two letters took not to withdraw Stupel’s between the debtor and the should honour the obliga- of demand written by Braun’s mandate to act as such. creditor, the debtor is enti- tions they have assumed in attorney to Ambasaam dated, Both agreements contained tled to pay what is due to the terms of guarantees issued 9 March 2011 and 14 March a section entitled ‘Undertak- creditor and so discharge the by them. 2011 respectively. The let- ing by Conveyancer’, which creditor’s obligations to the An ‘“on demand” guaran- ter dated 9 March 2011 con- was signed by Stupel. In adjectus. tee’ such as the principal and cluded ‘our client shall pro- terms of the undertaking Stu- The court held that Rodel counter-guarantees in the ceed to cancel the [contract pel commited itself ‘irrevoca- could not be regarded as an present case is not unlike an of carriage] without further bly’ to pay the nett proceeds adjectus because the under- irrevocable letter of credit. notice to Ambasaam CC and of the sale of the property taking relied on by Rodel was A guarantee establishes a to claim damages from Am- to Rodel on transfer of the not part of a tripartite agree- contractual obligation on the basaam, in the event that Am- property. After Amber re- ment involving the debtor, part of the guarantor to pay basaam does not timeously ceived the money it had bor- creditor and adjectus. The the beneficiary on the occur- adhere to the aforementioned rowed from Rodel in terms of undertaking by Stupel was a rence of a specified event. demands’. the agreements, it instructed ‘stand-alone’ agreement be- Both ‘first demand’ and The sole issue for deter- Stupel to withdraw the un- tween it and Rodel; and sec- ‘counter’ guarantees, such as mination in the appeal was dertakings provided to Rodel. ondly, Stupel was never in the those present here, are inde- whether this demand for per- Stupel obliged with Amber’s position of a debtor, nor was pendent of the underlying formance by Braun directed instruction. Rodel cancelled Amber in the position of Stu- contract, which gives rise to to Ambasaam, constituted the discounting agreements pel’s creditor. the guarantee. Therefore, re- a repudiation by the former and proceeded to claim the In terms of the agreement gardless of a dispute between of its obligations in terms of the parties to the underly- a contract of carriage, which ing contract, the guarantee entitled Ambasaam to can- must be paid on demand. The cel the agreement and claim only exception to this rule, is damages from Braun. The GP where there is fraud on the held that Braun had repudi- part of the beneficiary. The ated the agreement, which party alleging fraud has to es- Ambasaam had subsequently tablish it clearly on a balance validly cancelled. YOU'VE BEEN of probabilities. Swain JA held that contrac- A bank issuing an on de- tual repudiation depends on mand guarantee is only perception, not intention, and SERVED! obliged to pay where a de- a reasonable person would mand meets the terms of the not understand a demand for guarantee. Thus, the benefi- performance to be an indica- ciary in the case of an on de- tion of repudiation. mand guarantee should com- The interpretation of a con- LegalServe is an authenticated electronic document ply with the requirements tract is a matter for the court exchange solution between attorneys. stipulated in the guarantee. and not for witnesses, and LegalServe is a web interfaced solution that will:- Examining each of the guar- extraneous evidence must, to • Facilitate the exchange of documents antees in this case, the court the extent that it is admissi- • Provide a full audit trial where you can see whether the found that save for one of the ble, be used as conservatively receiving party has in fact, viewed, downloaded or forwarded ABSA counter-guarantees, the as possible. the document court correctly held that the The court thus held that • Issue an authenticated time and date stamp of each serve • Provide access, anytime, anywhere to even the most remote requirements were met for Braun’s demand for perfor- areas the granting of prohibitory mance did not constitute a • Constant backup of all documents on the system interdictory relief to Denel. repudiation of the contract. • Fully compliant with all the Rules of Court Because of this finding by The appeal was thus allowed • Reduce your current document delivery and / or correspondent cost significantly the court, it was unnecessary with costs. for it to pronounce on the LegalServe is building a national footprint with our LegalServe alleged fraud of the Indian Conveyancing Serve Centre’s that will allow you to have court documents filed or delivered on your behalf via a Serve Centre in almost any banks. Agent of seller: In Stupel & jurisdiction. The appeal was upheld Berman Inc v Rodel Financial solely in respect of the single Services (Pty) Ltd 2015 (3) SA 062 278 5153 086 551 1503 ABSA counter-guarantee re- 36 (SCA) the appellant, Stu- [email protected] www.legalserve.co.za ferred to above. pel, was instructed to act as

DE REBUS – JULY 2015 - 47 - between Amber and Stupel, The law of agency provides acting in breach of its obliga- peal on the merits of the final the latter, as agent, had to do for an exception to the gen- tion in terms of the discount- order, the appellants argued two things: eral rule that instructions ing agreements, to which Stu- that the restrictive interpre- • transfer the property to the given to an agent can be ter- pel was not a party, is of no tation by the SCA in Gungu- purchaser; and minated by the principal. The consequence. The appeal was doo of the word ‘employees’ • pay the nett proceeds to exception to the general rule allowed with costs. in s 9(4A) rendered the pro- Rodel. is where the authority of the • See 38. vision unconstitutional for If Rodel was truly an adjec- agent to act on behalf of the discriminating against do- tus, it would have no claim principal can be ‘coupled Insolvency mestic employees, infringing against Stupel at all. Because with an interest’. In terms of their rights to dignity, fair Stupel gave the undertakings this exception, the interest to Notification of insolvent’s labour practices and access to Rodel in its capacity as an be protected by irrevocabil- employees: In Stratford and to courts. The court also had agent, on the instructions of ity, must be that of the agent Others v Investec Bank 2015 to indicate whether notifica- his principal (Amber), the law (Stupel), as opposed to that (3) SA 1 (CC); 2015 (3) BCLR tion was peremptory or not. of agency provided that, as of the third party or adjectus 358 (CC) the facts were as The sequestration order was a general rule, those instruc- (Rodel). follows: The appellants were handed down in the WCC. The tions could be terminated. The court mentioned in a married couple and had SCA refused leave to appeal. The fact that the instructions passing that the correct rem- three domestic employees. On appeal to the CC, Leeuw were described as ‘irrevoca- edy for money-lenders who The couple’s joint estate was AJ held that s 9(4A) of the ble’ in the undertaking by find themselves in Rodel’s placed in final sequestration Act must be interpreted in Stupel, did not detract from shoes, is to keep the money- despite the objection of the conformity with the Consti- the general principle. Amber lending agreement intact employees that they had not tution. This means that in could thus withdraw Stupel’s and rather seek an interdict been properly notified of the cases of doubt, a reasonable mandate and Stupel had no against the principal (Amber), application for provisional se- interpretation that promotes option but to act on Amber’s joining the agent (Stupel) as questration. the spirit, purport and objec- instructions. Because Rodel an interested party, to pre- In 2002 the Insolvency tives of the Bill of Rights must cancelled the agreements, vent the agent from giving ef- Act 24 of 1936 (the Act) was be preferred. The decision in it left Amber free of its con- fect to the termination of the amended by the insertion of Gungudoo did not deal with tractual undertaking towards mandate by the principal. s 9(4A), which requires a pe- the constitutional arguments Rodel not to terminate Stu- Finally, the court held that tition for sequestration to be raised in the Stratford case. pel’s mandate. whether or not Amber was ‘furnished’ to the debtor’s The court further held that employees. The copy must despite the indicators relied be put on any notice board on by the SCA in Gungu- accessible to employees in- doo, the word ‘employees’ in side the debtor’s premises s 9(4A) is indeed capable of or otherwise affixed to the including non-business em- front gate or front door of ployees. In this regard the the premises from which the court reasoned that the link debtor conducted any busi- between work and the right ness at the time. to dignity is well established. The candidate attorney Notification serves to alert serving the initial application employees to the financial in the present case had asked difficulties of their employer. the employers whether they It enables them to seek alter- had any domestic employees. native employment and could They said they had a domes- avoid the situation where tic worker, but they did not they turn up for work only to mention the gardener and find that their services have handyman they employed. A been suspended and they will copy of the application was not be paid. left on the kitchen table for An inclusive interpretation the domestic worker. of ‘employees’ in the notifica- In 2012, on the day after tion provision will thus bet- the provisional order in this ter promote the objectives of matter was granted, the SCA the Bill of Rights. In view of held in another matter (Gun- the finding that domestic em- gudoo & Another v Hannover ployees are indeed included Reinsurance Group Africa in s 9(4A), the challenge to the (Pty) Ltd & Another 2012 (6) constitutional validity of this SA 537 (SCA)) that s 9(4A) ap- provision falls away. plied only in respect of an in- As to the question whether solvent’s business employees and that domestic employees compliance with s 9(4A) is did not have to be notified. peremptory or not, the court This interpretation relied, held that it is significant that among other things, on the it does not require a notice to reference to the business be ‘served’ on employees, but premises of the debtor. rather that it be ‘furnished’ to In addition to raising an ap- them. This means that the no-

DE REBUS – JULY 2015 - 48 - LAW REPORTS tice must be made available 1998 provides that an insur- in a manner reasonably likely er may avoid liability on the to make it accessible to em- ground of misrepresentation. ployees. The effort made by That is, a representation that the candidate attorney in this was not true or amounted to matter was sufficient to meet non-disclosure of informa- this standard. tion, ‘if [it were] ... likely to The insolvent debtor may have materially affected the not oppose a sequestration assessment of the risk under order by relying on a failure the policy concerned at the to inform his or her employ- time of its issue’. ees, as that would be a techni- The insurer relied on two cal defence invoked to avoid sources of evidence in prov- or postpone sequestration. ing the misrepresentation/ In some exceptional circum- non-disclosure by the em- stances a provisional order ployee. First, the transcript may be granted on an urgent of a telephone conversation basis despite non-compliance between the insurer and the with s 9(4A), for example to employee during which the avoid the concealment of as- latter was asked certain ques- sets. tions relating to her state of The court confirmed that health. Secondly, records of the declaration of the mean- the hospital that the employ- ing of ‘employees’ as includ- ee visited that contain details ing domestic employees does of the employee’s medical not have retrospective effect, complaints. The court a quo except in relation to matters held in favour of the insurer. where domestic employees On appeal, Swain JA, held Ensure that you were not notified and a pro- that the insurer bears the visional order has been made. onus of proving that the em- Finally, it held that a copy of ployee had misrepresented always rely on “good the application must be fur- to it that she had never had nished to domestic employ- any episodes of anxiety or law” with Butterworths ees before a final order can stress, and that she had never be granted. In the light of the received medical advice or Legal Citator potential impeachable trans- treatment for fainting and actions listed by the bank, it chest pains. The admissibil- was clear that sequestration ity of the telephonic conver- sation and hospital records would be to the advantage of The Butterworths Legal Citator is a unique the couple’s creditors. Hence must be distinguished from the evidential status of their research tool which allows you to view a the CC refrained from inter- decision’s precedential weight, quickly and easily, fering with the High Court’s contents. The records are ad- final sequestration order. missible. by using a series of signal indicators. Link directly However, because the doc- to the text of judgments reported by LexisNexis Insurance tor who conducted the inter- and to legislation, rules and regulations. view with the employee at Misrepresentation: In Vis- the hospital was not called to ser v 1 Life Direct Insurance testify about the correctness How? Ltd 2015 (3) SA 69 (SCA) the of the hospital records, the • Signal indicators immediately provide the appellant, the beneficiary, evidential value and status of current status of a case. took out life insurance cover these records had not been • Check whether a case has been overruled or on the life of one of her em- proved. upheld on appeal. ployees, the employee. The Only once the correctness • View how other courts have dealt with a case. beneficiary lent money to the of these records was proved, • Enables you to review parallel citations employee to start her own could the further issues of no matter what your primary law report business. Fourteen months misrepresentation or non- after the policy was issued disclosure by the employee subscription is. the employee died from un- arise. The expert witness on natural causes. The respond- behalf of the beneficiary testi- Get all of this for only R5,974.46 ent, the insurer, rejected the fied that the hospital records (incl. VAT, excl delivery) beneficiary’s claim in terms were incomplete and that one of the policy. It argued that had to speculate concerning To order your Butterworths Legal Citator the employee had misrepre- the causes of the symptoms or to fi nd out more call 0860 765 432 or sented and failed to disclose of the employee. to the insurer certain details Finally, the SCA held that email [email protected] or visit of her pre-existing medical the court a quo erred in find- www.lexisnexis.co.za/LegalCitator condition, which materially ing that ‘it is not in dispute affected the assessment of that the illnesses [of the em- the risk. ployee] are noted, correctly, www.lexisnexis.co.za Section 59(1) of the Long- in the hospital records’. The term Insurance Act 52 of insurer therefore failed to

DE REBUS – JULY 2015 RS031-15A_BLC_ads_249x85_2.indd- 49 - 1 2015/06/12 4:15 PM LAW REPORTS discharge the onus of prov- failing to advise the insurer of 1998, which induced it to and assume the risk. Once ing the trust and accuracy of that the premises was occu- enter into the contract; and materiality has been proved it the contents of the hospital pied by a tenant who manu- • if there was a material non- would be difficult for the in- records and the appeal was factured truck and trailer disclosure, whether the in- sured to overcome the hurdle upheld with costs. bodies using fibre glass and sured established either es- of showing no causation. The In a separate concurring resin. Both are highly flam- toppel or waiver of reliance test for inducement is subjec- judgment, Willis JA, agreed mable materials. This consti- by the insurer on non-disclo- tive. that the issue of materiality tuted a risk that the insurer sures. In considering whether did not arise but considered argued it would not have un- Lewis JA held that at com- there was a failure to disclose that it nevertheless had to be dertaken had it known of the mon law, an insured, when the nature of the risk in the dealt with, to give the unsuc- nature of the business. The requesting insurance cover, present case, the court held cessful litigant who failed for fire was caused by employees must make a full and com- that the presence of the tenant lack of evidence an indication of the tenant in the course of plete disclosure of all matters in the building, and the fact of what it might have been ex- manufacturing. material to the insurer’s as- that it occupied a substantial pected to prove. The High Court found that sessment of the risk. Failure portion of the building, made the insurer was liable to pay to do so will entitle the in- a material difference to the Non-disclosure: The facts in the sum claimed on the basis surer to reject a claim under a risk. The reasonable person Regent Insurance Co Ltd v that it was estopped from re- policy and to treat it as void. would have regarded that fact King’s Property Development lying on the defence of non- Legislation has been enacted, as material and disclosed it to (Pty) Ltd t/a King’s Prop 2015 disclosure. It reasoned that, however, to preclude insur- the insurer. The request for (3) SA 85 (SCA); [2015] 2 All when the insurance broker ers from relying on trivial the survey did not relieve the SA 137 (SCA) were as follows: for the insured had procured misrepresentations and non- insured of the duty to make a On 16 March 2010 the par- the insurance cover, he had disclosures to avoid liability full disclosure as to the use of ties concluded a contract of asked the insurer to do an under an insurance contract. the premises. insurance in respect of which urgent survey of the prem- The test in respect of both The insurer was thus enti- the appellant, the insurer, ises. The High Court held that misrepresentations and non- tled to reject the claim. The insured the premises of the the insured had been misled disclosures is an objective appeal was upheld with costs. respondent, the insured, into believing that the survey one. The question is thus against certain risks, which had been done, and had ac- whether the reasonable per- Other cases included fire damage. The in- cordingly paid the premiums son would have considered Apart from the cases and top- sured premises burnt down on the assumption that the the fact not disclosed as rel- ics that were discussed above, in May 2010. The insured insurance covered the prem- evant to the risk and its as- the material under review claimed the cost of repairs ises. sessment by an insurer. The also contained cases dealing and payment in respect of The relevant issues on ap- onus rests on the insurer to with administrative law, civil rental income lost, from the peal were the following – prove materiality. The insurer procedure, company law, con- insurer. The insurer rejected • what was in fact disclosed must prove that the non- stitutional law, criminal law, the claim, alleging a material by the insured to the insurer disclosure or representation disciplinary bodies, intellec- non-disclosure by the insured about the premises; induced it to conclude the tual property, land, local au- when applying for insurance • whether the insurer estab- contract. Thus, the insurer thorities, marriage, medical cover in respect of the prem- lished a material non-disclo- must show that the repre- aids, parent responsibilities, ises. The non-disclosure, so sure in terms of s 53(1) of the sentation or non-disclosure practice, prescription, ship- the insurer reasoned, lay in Short-Term Insurance Act 53 caused it to issue the policy ping and wild animals. q

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Revised checklist The witness is for leave to appeal on screen – to the SCA video technology assisting the court process New e-commerce hate speech is a crime The debt collection scandal VAT directives equality Court rules in favour of domestic worker Judge’s ruling in ‘Beware the hired gun’ assisted suicide case Are expert witnesses unbiased? divides South Africa

DE REBUS – JULY 2015 - 50 - CASE NOTE

Interpretation of s 133(1) of the Companies Act 71 of 2008 – the principle of moratorium

By re-defined under business rescue Romeo Cloete Murray and Another NNO v FirstRand Bank Ltd Tsusi t/a Wesbank 2015 (3) SA 438 (SCA)

he enactment of the Compa- The Supreme Court of Appeal (SCA) in Wesbank, subsequently dispatched a let- nies Act 71 of 2008 (the Act) the recent judgment of Cloete Murry at ter of cancellation of the agreement to brought about s 7, envisaging para 14, Fourie AJA held that it is gen- Skyline due to failure to pay the monthly the purpose and application of erally accepted that a moratorium on instalments, and advised it would repos- the Act, inter alia, subs k ‘pro- legal proceedings against a company sess the goods; it would value and sell Tvide for the efficient rescue and recovery under business rescue, is of cardinal same; and credit the proceeds to the rel- of financially distressed companies, in a importance since it provides the crucial evant accounts and to claim damages. manner that balances the rights and in- breathing space or a period of respite The business rescue practitioner ap- terests of all relevant stakeholders, and to enable a company to restructure its pointed in terms of the Act to oversee introduces business rescue proceedings affairs and that, it was aptly described the proceedings consented to the repos- for financially distressed companies. moratorium is a cornerstone of all busi- session and selling of the goods. The Act entrenched these provisions ness rescue procedures. The business rescue, by order of court under ch 6 of the Act – ss 128 to 156. The temporary moratorium referred was discontinued and Skyline was placed Section 128(1)(b) defines business rescue to above in terms of s 128(1)(b)(ii) has in liquidation. The liquidators challenged as ‘proceedings to facilitate the rehabili- been enacted by means of s 133(1). Sec- Wesbank’s cancellation of the agreement tation of a company that is financially tion 133(1)(a) – (b) under the heading ‘[g] and alleged that it was contrary to the distressed by providing for – eneral moratorium on legal proceedings provision of s 133(1), and of no force or (i) the temporary supervision of the com- against company’ provides that – ‘[d]ur- effect. The application was dismissed in pany, and of the management of its af- ing business rescue proceedings, no le- the court a quo (Gauteng Local Division, fairs, business and property; gal proceeding, including enforcement Pretoria, Jordaan J sitting as court of (ii) a temporary moratorium on the action, against the company, or in rela- first instance). rights of claimants against the company tion to any property belonging to the The SCA was faced with the issue of or in respect of property in its posses- company, or lawfully in its possession, determining the proper meaning of sion; and may be commenced or proceeded with in s 133(1), particularly the correct inter- (iii) the development and implementa- any forum, except – pretation of the term ‘… no legal pro- tion, if approved, of a plan to rescue the (a) with the written consent of the ceeding, including enforcement action, company by restructuring its affairs, practitioner; against a company [under business res- business property, debt and other liabili- (b) with the leave of the court and in cue] may be commenced.’ ties, and equity in a manner that maxim- accordance with any terms the court Therefore, the cancellation of the ises the likelihood of the company con- considers suitable; ... .’ agreement by Wesbank was alleged to tinuing in existence on a solvent basis or, be interpreted to constitute an ‘enforce- if it is not possible for the company to Interpretation of s 133(1) as ment action’ as meant in s 133(1) by the so continue in existence, results in a bet- held in the Cloete Murry liquidators and thus the absence of the ter return for the company’s creditors or matter written consent by the business practi- shareholders than would result from the tioner or leave of the court in terms of immediate liquidation of the company.’ The appeal was heard by Fourie AJA subs (1)(a) and (b) meant that the cancel- (Navsa ADP, Ponnan and Zondi JJA and lation was of no force or effect. In con- Section 133(1) of the Act – Schoeman AJA concurring) dealing with trast, Wesbank submitted that the can- temporary the interpretation of s 133(1), whether cellation did not constitute ‘enforcement moratorium once business rescue proceedings under action’ as envisaged by the section, thus the Act have commenced, the creditor of no consent or leave by the court was re- For the purposes of this article, focus a company under business rescue can quired to cancel the agreement. will be on s 128(1)(b)(ii) of the Act – the unilaterally cancel an extant instalment Fourie AJA, held that an interpreta- temporary moratorium on the rights of sale agreement (agreement) that it had tion of s 133(1) called for, the crisp is- claimants against the company or in re- concluded with the company prior to the sue being whether the cancellation of spect of property in its possession dur- company being placed under business the agreement constituted ‘enforcement ing business rescue proceedings. rescue. FirstRand Bank Ltd t/a Wesbank action’ as meant in s 133(1) of the Act? The temporary moratorium against a (Wesbank) entered into an agreement The Act places a moratorium on ‘legal company under business rescue is effec- with Skyline Crane Hire (Pty) Ltd (Sky- proceedings’ and ‘enforcement action’, tive on commencement of business res- line) in terms of which Wesbank sold which definition of the said terms is not cue proceedings. There is an automatic and delivered movable goods to Skyline, contained in the Act. and general moratorium (or stay) on Wesbank retaining ownership in the legal proceedings or executions against goods until the purchase price had been ‘Legal proceeding’ the company, its property, assets and on paid in full. It was held at para 31 that this term is the exercise of the rights of creditors of Skyline was placed under business res- well-known in South Africa legal par- the company (FHI Cassim (managing ed) cue, and had already been in arrears in lance and usually bears the meaning of Contemporary Company Law 2ed (Cape respect of the monthly instalments pay- a lawsuit or ‘hofsaak’, in the Afrikaans Town: Juta 2012) at 878). able to Wesbank under the agreement. translation. Therefore cancellation of an

DE REBUS – JULY 2015 - 51 - agreement does not constitute a legal ing, including enforcement action, “may s 133(1) was held to contextually be un- proceeding in terms of s 133(1). be commenced or proceeded with in derstood to refer to enforcement action any forum” (my emphasis). A “forum” is by way of legal proceedings. ‘Enforcement action’ normally defined as a court or tribunal Fourie AJA at para 32 accepted that in (see the Concise Oxford Dictionary 12 ed Conclusion our legal parlance, ‘enforce’ or ‘enforce- (2011)) and its employment in s 133(1) Therefore, a creditor of a company under ment’, usually refers to the enforcement conveys the notion that “enforcement business rescue proceedings may cancel of obligations. Evaluating the context action” relates to formal proceedings a contract if such company is in breach of s 133(1), reference is made to ‘no le- ancillary to legal proceedings, such as of the agreement, this cannot, according gal proceeding, including enforcement the enforcement or execution of court to s 133(1) be regarded as an enforce- action’ as such, inclusion of the term orders by means of writs of execution or ment action falling under the notion of ‘enforcement action’ under the generic attachment’. moratorium. The court concluded that phrase ‘legal proceeding’ was held to in- Therefore, Fourie AJA held at para 33 ch 6 of the Act provides for safeguard dicate that: that the concepts of ‘enforcement’ and provisions to prevent the disastrous re- • ‘enforcement action’ is considered to ‘cancellation’ are traditionally regarded sult foreshadowed by the liquidators (ss be a species of ‘legal proceeding’; or, as mutually exclusive. ‘Cancellation’ 136(2); 154(2) of the Act). • at least, is meant to have its origin in connotes the termination of obligations between parties to an agreement and the legal proceedings. Romeo Tsusi LLB (UWC) is a can- cannot be interpreted to mean enforce- This conclusion was further held to be didate attorney at Herold Gie ment action as envisaged under s 133(1), strengthened by the wording of s 133(1), Attorneys in Cape Town. which ‘provides that no legal proceed- as such the correct interpretation of q

NEW LEGISLATION NEW LEGISLATION

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COMMENCEMENT OF ACTS Broad-Based Black Economic Empower- GG38767/11-5-2015 and GenN415 ment Act 53 of 2003 GG38790/15-5-2015. Spatial Planning and Land Use Manage- Clarification notice: Amended Codes of Rules, forms and particulars which shall ment Act 16 of 2013. Commencement: 1 Good Practice. GenN396 GG38764/5-5- be furnished. GN385 GG38769/15-5- July 2015. Proc26 GG38828/27-5-2015. 2015 and GenN444 GG38799/15-5-2015. 2015. Amendment of the amended Codes of Financial Services Board Act 97 of 1990 Attorneys Amendment Act 40 of Good Practice. GenN407 GG38765/6-5- Levies on financial institutions. BN101 2014. Commencement: 29 May 2015. 2015. GG38768/8-5-2015. Proc R24 GG38821/27-5-2015. Codes of Good Practice: Amended guide- Health Professions Act 56 of 1974 • See 28 lines for developing and gazetting of sec- Regulations defining the scope of prac- tor codes. GenN408 GG38766/6-5-2015. tice of clinical associates. GN R433 Spatial Data Infrastructure Act 54 of GG38816/25-5-2015. Civil Aviation Act 13 of 2009 2003, ss 12 and 14-18. Commencement: Magistrates’ Courts Act 32 of 1944 Eighth amendment of the Civil Avia- 29 June 2015. Proc25 GG38822/29-5- Appointment of one or more places tion Regulations, 2015. GN R444 2015. within each district for the holding of GG38830/27-5-2015. a court (Hermanus, George and Stellen- SELECTED LIST OF Collective Investment Schemes Control bosch). GN412 GG38774/8-5-2015 and Act 45 of 2002 DELEGATED LEGISLATION GN415 GG38777/8-5-2015. Exemption of managers of collec- National Environmental Management: Agricultural Product Standards Act 119 tive investment schemes in securities Biodiversity Act 10 of 2004 of 1990 from the duty to maintain seed capital Amendments to the regulations on bio- Regulations regarding the control of in exchange traded portfolios. BN104 prospecting, access and benefit-sharing. the export of animal products. GN R422 GG38782/15-5-2015. GenN447 GG38809/19-5-2015. GG38804/22-5-2015. Compensation for Occupational Inju- National Health Act 61 of 2003 Regulations regarding the control of the ries and Diseases Act 130 of 1993 Health infrastructure norms and stand- export of processed goods. GN R423 Annual increase in medical tariffs for ards guidelines. GN R414 GG38776/8-5- GG38804/22-5-2015. medical service providers. GenN409 2015.

DE REBUS – JULY 2015 - 52 - NEW LEGISLATION

Emergency Medical Services Regulations. s 23(3)(b)(ii). GN R447 GG38836/29-5- tural Product Standards Act 119 of 1990. GN R413 GG38775/8-5-2015. 2015. GenN401 GG38757/8-5-2015. Regulations regarding the continuous Draft rules for investigations, discipli- Road Accident Fund Act 56 of 1996 and regular activities in terms of s 23(3) nary hearings and appeals in terms of Adjustment of tariffs. BN107 (d). GN R446 GG38836/29-5-2015. the Council for the Built Environment GG38803/22-5-2015. Veterinary and Para-Veterinary Profes- Act 43 of 2000. BN100 GG38757/8-5- Skills Development Act 97 of 1998 sions Act 19 of 1982 2015. Trade Test Regulations. GN R376 Amendment of regulations. GN R388- Draft National Greenhouse Gas Emission GG38758/8-5-2015. 390 GG38783/15-5-2015. Reporting Regulations in terms of the National Environmental Management: Small Claims Courts Act 61 of 1984 Draft legislation Air Quality Act 39 of 2004. GenN411 Establishment of a small claims court GG38779/11-5-2015. Draft National Policy of the Department for the area of Middelburg. GN407 Draft National Road Traffic Regulations of Basic Education on HIV, STIs and TB GG38792/15-5-2015. in terms of the National Road Traffic Act Establishment of a small claims court in terms of the National Education Policy Act 27 of 1996. GenN395 GG38763/5-5- 93 of 1996. GN411 GG38772/11-5-2015. for the areas of Wynberg, Mitch- Draft Regulations relating to the classifi- ells Plain and Simon’s Town. GN406 2015. Draft Amendment Regulations regard- cation, packing and marking of fruit and GG38792/15-5-2015. vegetable juices, nectars, drinks and re- Establishment of a small claims ing the grading, packing and marking of sunflower seed intended for sale in lated products intended for sale in South court for the area of Qumbu. GN405 Africa in terms of the Agricultural Prod- GG38792/15-5-2015. South Africa in terms of the Agricultur- al Product Standards Act 119 of 1990. uct Standards Act 119 of 1990. GenN417 Establishment of a small claims GG38782/15-5-2015. court for the area of Tsolo. GN404 GenN399 GG38757/8-5-2015 and GN Draft amendment of the Electricity Regu- GG38792/15-5-2015. R380 GG38758/8-5-2015. lations on New Generation Capacity, 2011 Establishment of a small claims Draft Amendment Regulations regarding in terms of the Electricity Regulation Act court for the area of Indwe. GN403 the grading, packing and marking of du- 4 of 2006. GN R419 GG38801/19-5-2015. GG38792/15-5-2015. rum wheat intended for sale in South Af- Proposed National Liquor Policy in terms Establishment of a small claims court rica in terms of the Agricultural Product of the Liquor Act 59 of 2003. GenN446 for the area of Wodehouse. GN402 Standards Act 119 of 1990. GN R372 and GG38808/20-5-2015. GG38792/15-5-2015. GN R375 GG38758/8-5-2015. Draft Policy on the Customary Practice Establishment of a small claims court Draft Amendment Regulations regard- of Initiation in South Africa. GenN471 for the area of Tabankulu. GN401 ing the grading, packing and marking GG38814/22-5-2015. GG38792/15-5-2015. of soft wheat intended for sale in South Draft Appeal Regulations in terms of the Establishment of a small claims Africa in terms of the Agricultural Prod- National Environmental Management: In- court for the area of Libode. GN400 uct Standards Act 119 of 1990. GenN397 tegrated Coastal Management Act 24 of GG38792/15-5-2015. GG38757/8-5-2015 and GN R374 2008. GenN450 GG38803/22-5-2015. Establishment of a small claims court GG38758/8-5-2015. Draft Amendment Regulations pertain- for the area of Babanango. GN399 Draft Amendment Regulations regard- ing to the conduct, administration and GG38792/15-5-2015. ing the grading, packing and marking of bread wheat intended for sale in South management of the senior certificate Traditional Leadership and Govern- Africa in terms of the Agricultural Prod- examination in terms of the South Af- ance Framework Act 41 of 2003 uct Standards Act 119 of 1990. GenN398 rican Schools Act 84 of 1996. GN R420 Guidelines for determination of the GG38757/8-5-2015 and GN R373 GG38810/25-5-2015. number of members of traditional coun- GG38758/8-5-2015. Proposed amendments to the Johan- cils. GN397 GG38782/15-5-2015. Draft Amendment Regulations regard- nesburg Stock Exchange Debt Listing Value-Added Tax Act 89 of 1991 ing the grading, packing and marking Requirements in terms of the Finan- Regulations regarding requirements for cial Markets Act 19 of 2012. BN112 175x78REPRO.pdf 1 2012/05/02 11:09of sorghum AM products intended for sale the registration as a vendor in terms of in South Africa in terms of the Agricul- GG38822/29-5-2015. q

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DE REBUS – JULY 2015 - 53 - EMPLOYMENT LAW Employment law update

Lallie J found that there was no legal ba- sis for a finding of res judicata as each consulting party may experience proce- dural unfairness in different ways and thus the agreement reached between Solidarity and the employer regarding procedural unfairness as perceived by Solidarity did not preclude other con- sulting parties from approaching the court in terms of s 189A(13). Mr Ketse argued that the termination of his employment was unlawful as the Talita Laubscher BIur LLB (UFS) LLM Monique JeffersonBA (Wits) LLB (Rho- parties had not consulted for the pre- (Emory University USA) is an attorney des) is an attorney at Bowman Gilfillan in scribed time period. A facilitator had at Bowman Gilfillan in Johannesburg. Johannesburg. been appointed and thus the parties were required to consult for a minimum of 60 days. The consultation period had Dismissals for operational tion process. In this regard, an employer been 120 days and thus Lallie J found is first required to consult with any per- requirements that the termination was not unlawful. son with whom it is required to consult Lallie J dismissed Mr Ketse’s argument In Ketse v Telkom SA Soc Ltd and Oth- in terms of a collective agreement. In the that the employer had breached s 189A ers [2015] 4 BLLR 436 (LC), Mr Ketse ap- absence of a collective agreement the as it had not appointed a Commission proached the Labour Court in terms of employer is required to consult with a for Conciliation, Mediation and Arbitra- s 189A(13) of the Labour Relations Act workplace forum and registered trade tion facilitator but instead a private facil- 66 of 1995 (LRA) to apply for an urgent union. Only if there is no trade union is itator. Thus, the termination of employ- order that his notice of termination was the employer then required to consult ment was found to be lawful. of no force and effect and that he be rein- with the individual employees. Mr Ketse stated until the employer complies with on the other hand argued that s 189(1) a fair retrenchment procedure. He also of the LRA should be purposively in- sought an order interdicting the employ- terpreted and to recognise a hierarchy In Vermeulen v Investgold CC and Anoth- er from appointing any other employees of consulting parties would mean that er [2015] 4 BLLR 447 (LC), a stock con- to his position pending his reinstate- non-unionised employees would not be troller, Ms Vermeulen, was issued with ment. In the event that the court found consulted with and would be denied re- a s 189(3) letter on 6 December 2012 that an order in terms of s 189A(13) was course to procedural fairness in terms of and told to pack her bags and remain at not appropriate, he sought just and equi- s 189A(13). home until attending a meeting on 12 table compensation. Lallie J considered the arguments December 2012. During the meeting the The employer opposed the application by both the employer and Mr Ketse as employer rushed through all the topics alleging that Mr Ketse did not have locus regards locus standi and followed the required for consultation such as the standi to bring the application as he had cases where it had been found that operational rationale, selection criteria, not been a consulting party as contem- there is a hierarchy in s 189(1) govern- proposed alternatives, timing and sever- plated in s 189A(13) of the LRA. In this ing the consultation process. He found ance pay. Ms Vermeulen’s representative regard, the employer alleged that the that in cases where a failure to consult proposed that she be trained so that she various trade unions who had partici- with individual employees was found to could occupy a vacant position of as- pated in the consultation process were constitute procedural unfairness, there sistant accountant. A second proposal the consulting parties who had the locus had not been a collective agreement in was that she be offered an enhanced standi to bring the s 189A(13) applica- place that required consultation with a severance package. Ms Vermeulen was tion. particular body. This was distinguish- requested to put her proposal in writ- The employer further alleged that the able from the present case where the ing, which she then did. On 14 December dispute relating to alleged non-compli- employer had consulted with the unions, 2012 Ms Vermeulen was issued with a ance with the procedural requirements which it was required to consult with in retrenchment notice and given details of of the LRA was res judicata as Solidar- terms of recognition agreements. Lallie J her retrenchment package. ity had already brought an application to accordingly held that Mr Ketse was not a As regards substantive fairness, Ms this effect and an agreement had been consulting party as defined in s 189(1). Vermeulen did not directly challenge reached as to the consultation process Furthermore, Lallie J found that Mr Ket- the operational rationale for her dis- and the appointment of a facilitator, se was not able to show that he was a missal but alleged that the dismissal was which agreement was made an order of de facto consulting party as he had not substantively unfair as she was not ap- court. It was also argued that the termi- been present at the facilitated meetings pointed to available positions as an al- nation of Mr Ketse’s employment was and although he had been provided with ternative to retrenchment. In this regard, lawful as more than 120 days had lapsed certain information by the employer, he there were two vacant positions that she since the s 189(3) letter had been issued. had adopted a passive role and had not was suitably qualified for but would re- The employer argued that Mr Ketse engaged with the employer on this infor- quire her to undergo a pay cut. There was not a consulting party as defined mation. It was accordingly held that he was also the role of assistant account- in s 189(1) of the LRA and referred to a did not have locus standi to bring the ap- ant, which she would have been able to number of cases that recognised a hier- plication in terms of s 189A(13). perform if she received adequate train- archy of consulting parties in a consulta- As regards the issue of res judicata, ing. Van Niekerk J held that it was not

DE REBUS – JULY 2015 - 54 - unreasonable for the employer to not stantial salary cut. It was held that the Niekerk J commented that there may be offer Ms Vermeulen the role of assistant dismissal was substantively fair. circumstances where a truncated consul- accountant as she would require about As regards procedural fairness, Van tation process may be justified. This may eight to 12 months training and the busi- Niekerk J held that it is not appropriate to be the case if the survival of a business ness could not be expected to delay the simply apply a checklist approach to re- is at stake but this was not the case in appointment for such a long period of trenchments and that the employer must these circumstances. Van Niekerk J con- time. As regards the other positions, engage openly and honestly in a manner cluded that the employer should have Van Niekerk J found that given the fact that allows both parties to express their engaged further with the employee and that Ms Vermeulen had indicated that views and proposals. Procedural fair- thus the employer failed to engage in she would not accept a lower salary, the ness also requires an employer to seri- a joint consensus seeking manner. The employer did not act unfairly in failing ously consider any proposals made by dismissal was accordingly procedurally to consider Ms Vermeulen for the other the employees. In this case the consul- unfair and compensation equal to three two positions that would require a sub- tation process took only two hours. Van months’ pay was ordered.

Rabkin-Naicker J, in Solidarity and to the appellant, the plan was based on Others v Department of Correctional Ser- ‘race and gender norming’ without any vices and Others (Police and Prisons Civil proper regard to the individual’s circum- Rights Union as amicus curiae) (2014) 35 stances and past disadvantages. ILJ 504 (LC), found the DCS’s plan unfair In addressing this argument the LAC in that it failed to take into consideration held: regional demographics. In failing to do ‘Much of the debate before this court so, the court found that the DCS recruit- turned on the distinction between a quo- ment and selection process amounted to ta, which in terms of the EEA, is an im- discrimination, which was not protected permissible mechanism, and the permis- by either the EEA or the Constitution. sible concept of numerical targets. The Moksha Naidoo BA (Wits) LLB (UKZN) The judge ordered that when setting nu- key distinguishing factor between these is an advocate at the Johannesburg Bar. merical targets, the DCS must consider two concepts turns, it appears, on the both national as well as regional demo- flexibility of the mechanism. An inflex- Numerical targets v quotas graphics. The remaining relief sought by ible set of numbers with which the des- the employees was dismissed with no ignated employer is required to comply, – national demographics v order as to costs. “come what may” constitutes a quota and regional demographics At the LAC the appellant’s appeal lay would therefore be in breach of s 15(3) against the decision of the court a quo of the EEA. By contrast, a plan based on Solidarity and Others v Department of refusing to grant the relief sought. The designated groups filling specified per- Correctional Services and Others (LAC) respondents cross-appeal was limited to centages of the workforce, but which al- the finding that the DCS’s plan did not (unreported case no CA23/13, 10-4- lowed for deviations therefrom so that take into account regional demograph- 2015) (Waglay JP, Davis JA et Mngqibisa there was no absolute bar to present or – Thusi AJA). ics. continued employment or advancement Ten of the appellant’s members, cited The LAC began by examining the DCS of people who do not fall within a des- as the second to 11 appellants (the em- plan. ignated group (s 15(4)) would pass legal ployees) applied for various promotions The plan created numerical targets muster. Similarly, a plan which provides while working for the Department of by race and gender; these targets were that the numbers provided for in the Correctional Services (DCS) in the West- informed by the national demographics plan constitute a goal to be achieved ern Cape. estimated in 2005. Material to the judg- over a defined period would be congru- Save for one employee, the remaining ment is the fact that the plan allowed ent with the EEA.’ employees were unsuccessful in their the National Commissioner of the DCS Relating this to the merits at hand, the respective applications, prompting the to deviate from the plan when consider- LAC observed that from 2010 to 2013 appellant to refer an unfair discrimina- ing business delivery, critical positions tion dispute to the Labour Court. The or when an employee from underrepre- the DCS had deviated from its plan 13 appellant’s claim centred on the allega- sented groups was not available. Simi- times in the Western Cape. This fact sup- tion that the DCS’s employment equity larly the DCS affirmative action plan also ported the view that the DCS was not in- plan (the plan) contravened the Employ- affords the Commissioner the discretion flexible when implementing the plan and ment Equity Act 55 of 1998 (EEA) in that to deviate from the affirmative action that there was no absolute bar to promo- it firstly, required a rigid application of plan in consideration of certain factors tions and appointments as argued by the quotas based on demographic represen- and circumstances. appellant. tation; and secondly, failed to take into Did the plan embody a quota system In addressing the argument that the account regional demographics of the that was impermissible in terms of the plan violated the right to equity, the Western Cape (nine of the ten employees EEA or did the plan set numerical targets court adopted the Constitutional Court were members of the Coloured commu- contemplated in the EEA? test used to decide whether a restitution nity residing in the Western Cape.) The appellant argued that the DCS’s measure, in casu the DCS’s plan, violated In terms of relief, the employees want- plan embodied a quota system whereby the equality provision contained in s 9(2) ed to be placed into the posts they ap- appointments, transfers and promotions of the Constitution. The test is a three- plied for and which remained vacant, were done in strict accordance to na- fold inquiry, which seeks to evaluate alternatively that they be constructively tional demographics without taking into whether the measure – promoted (ie, be given the same remu- account the individual circumstances of • targets persons or categories of per- neration and benefits associated with those applying for promotions, transfers sons who have been disadvantaged by the post they applied for). etcetera. As a result thereof, according unfair discrimination;

DE REBUS – JULY 2015 - 55 - EMPLOYMENT LAW

• is designed to protect or advance such The coloured community in the Western sion the court held that it would be dif- persons or categories of persons; and Cape made up 50% of the economically ficult to envisage how a plan could pass • promotes the achievement of equity. active population yet the DCS’s plan legal muster without taking into account The court was satisfied that the DCS’s only allowed 8,8% of its workforce in the regional demographics and that a failure plan met the first two requirements. In Western Cape to be employed from the to do so would substantively reduce the dealing with the third requirement the coloured community. Therefore the im- contribution of restitution towards sub- court acknowledged that it is at this plementation of the plan would result in stantive equality. stage that the rights of individuals can a ‘clear infringement on dignity to those On the issue of remedy, given the lack be protected and a court is required to who were the very target of Apartheid’s of certain evidence, in particular that balance an individual’s right to dignity racist policies’. certain employees would have been pro- against the substantive nature of the Prior to making this point the court moted had the DCS’s plan taken account right to equity. The measure must not did, however, say that the mere fact that of regional demographics, as well as ‘impose disproportionate burdens … one person from a designated group is having regard to the lapse in time from or impose substantial and undue harm’ advantaged over another person also when the dispute arose to when the ap- against those who do not benefit from from a designated group does not in it- peal was heard; the court did not grant such measures. self lend to an equity plan being contrary the relief the employees sought. In keeping with the third requirement to the EEA nor was it axiomatic that un- Both the appeal and cross appeal were of the inquiry the court upheld the find- der such circumstances, the designated dismissed with no order as to costs. ing that the failure of the DCS to take person excluded from the measure into account the regional demographics would be successful in a claim for unfair of the Western Cape meant the plan was discrimination. Do you have a labour law- not compliant with the EEA and hence The court also rejected the DCS’s argu- unfairly discriminated against the appel- ment that under the 2014 amendments related question that you lants. to the EEA, there was no longer an obli- would like answered? Section 42 of the EEA obliged the DCS to gation to consider regional demograph- Send your question to take into consideration both regional as ics when developing an equity plan (s 42 well as national demographics when im- of the amended EEA replaced the word [email protected] plementing an employment equity plan. ‘must’ with ‘may’). In justifying its deci- q

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NOW INCLUDES COMPREHENSIVE WORD AND PHRASES INDEXING

ABOUT THE AUTHOR: ALLEN WEST

Allen West was the Chief of Deeds Train- ing from 1 July 1984 to 30 September 2014 2015 EDITION and is presently a Property Law Specialist The 2015 edition includes all new at MacRobert Attorneys in Pretoria. He is the co-author updates for the past year and now also The Guide now incorporates of numerous books on conveyancing and has published has an index to assist both the student • a subject index of all Chief registrars more than one hundred articles in leading law journals. and professional alike. Circulars from 1940 to date; and Allen is a lecturer at the University of Pretoria and a • a word and phrases index to moderator and consultant of Conveyancing subjects at The Guide has been updated with facilitate research. UNISA. He has presented courses for the LSSA (LEAD) • more than 130 Conference Resolutions; since 1984 and has served on the following boards: • all recent case law; The Guide is Sectional Title Regulation Board, Deeds Registries • the last two years new legislation and • Concise and easy to read; Regulation Board, and Conference of Registrars, as well amended legislation • A handy reference for further research as numerous other related committees. Until September • the last two years Chief Registrars on a topic; and 2014, Allen was the editor of the South African Deeds Circulars, in total exceeding 50; and • A must-have for preparation of deeds Journal (SADJ) since its inception. • the latest practice and procedures. and documents.

2015 Practitioner’s Guide to Conveyancing and Notarial Practice is sold by LEAD. To buy, please download the order form from the website www.LSSALEAD.org.za or contact LEAD on tel: 012 441 4600 or email: [email protected]

Legal Education and Development (L.E.A.D) | Tel: +27 (0)12 441 4600 (switchboard) | Fax: +27 (0)12 441 6032 (sales) Email: [email protected] | Website: www.LSSALEAD.org.za | Address: PO Box 27167 Sunnyside 0132 Lifelong learning Docex 227 Pretoria | Old Main Building, Unisa Sunnyside Campus, 145 Steve Biko Street, Sunnyside, Pretoria towards a just society Law Society of South Africa (LSSA) | Tel: +27 (0)12 366 8800 | Fax: +27 (0)12 362 0969 | Email: [email protected] Website: www.LSSA.org.za | Address: PO Box 36626 Menlo Park 0102 | Docex 82 Pretoria | 304 Brooks Street, Menlo Park, Pretoria By Meryl Recent articles and research Federl

Where articles are available on an open access platform, articles will be hyperlinked on De Rebus Digital.

Abbreviations: Consumer law racy amalgamation made worse by the Draft Traditional Affairs Bill’ (2014) 29.2 EL: Employment Law (LexisNexis) Barnard, J and Kok, A ‘A consumers SAPL 343. PER: Potchefstroom Electronic Law Jour- fundamental right to equality in terms Monye, SM ‘Freedom of expression and nal (North West University) of the Consumer Protection Act and the traditional communities: Who can speak PLD: Property Law Digest (LexisNexis) role of the Promotion of Equality and and when?’ (2014) 29.2 SAPL 323. SAPL: Southern African Public Law (Uni- Prevention of Unfair Discrimination Act’ Ndima, DD ‘The resurrection of the in- sa) (2015) 78.1 THRHR 1. digenous values system in post-apart- THRHR: Tydskrif vir Hedendaagse-Hol- Barnard, J ‘Ongevraagde goedere in- heid African law: South Africa’s con- landse Reg (LexisNexis) gevolge die Wet op Verbruikersbesk- stitutional and legislative framework TSAR: Tydskrif vir die Suid-Afrikaanse erming in regsvergelykende perspektief’ revisited’ (2014) 29.2 SAPL 294. Reg (Juta) (2015) 2 TSAR 268. Ntlama, N ‘The constitutional divide of Banking law Contract post-apartheid South Africa in the juris- diction of the traditional justice system’ Lawack, VA and Pretorius, JT ‘The Bhana, D ‘Contract law and the Consti- (2014) 29.2 SAPL 282. “sale” of a bank account’ (2015) 78.1 tution: Bredenkamp v Standard Bank of THRHR 104. South Africa Ltd (SCA)’ (2014) 29.2 SAPL Delict 508. Neethling, J and Potgieter, JM ‘Delictual Business and human rights Ismail, R ‘Complexities with the forma- liability for negligent interference with Gwanyanya, M ‘The South African Com- tion of a contract – Command Protec- a contractual relationship – Minister for panies Act and the realisation of cor- tion Services (Gauteng) (Pty) Ltd t/a Maxi Safety and Security v Scott’ (2015) 78.1 porate human rights responsibilities’ Security v South African Post Office Ltd’ THRHR 162. (2015) 18.1 PER 3103. (2015) 78.1 THRHR 149. Nortje, M ‘Pre-contractual duties of dis- Education law Child law closure in the South African common Murcott, M ‘A Future for the Doctrine Ferreira, S ‘Step-parent adoption – Cen- law (part 1)’ (2015) 2 TSAR 347. of Substantive Legitimate Expectation? tre for Child Law v Minister of Social De- The implications of KwaZulu-Natal Joint velopment’ (2015) 78.1 THRHR 140. Credit law Liaison Committee v Mec for Education, Strode, A ‘A critical review of the regu- Fuchs, MMM ‘Huidige regsontwikkeling KwaZulu-Natal’ (2015) 18.1 PER 3133. lation of research involving children in ten aansien van uitwinbaarverklaring Murungi, LN ‘Inclusive Basic Education South Africa: From self-regulation to hy- van verband oor onroerende saak’ (2015) in South Africa: Issues in its conceptuali- per-regulation’ (2015) 2 TSAR 334. PER 18.1 3260. sation and implementation’ (2015) 18.1 Van Heerden, CM and Renke, S ‘Perspec- PER 3160. Civil procedure tives on selected aspects regarding the Erasmus, HJ ‘Judicial case management registration of credit providers in terms Environmental law and the adversarial mindset – the new of the National Credit Act 34 of 2005 (2)’ Du Plessis, A and Alberts, R ‘Coopera- Namibian rules of court’ (2015) 2 TSAR (2015) 78.1 THRHR 80. tive environmental governance: At the 259. coalface of sustainable infrastructure Criminal law development in South Africa’ (2014) 29.2 Competition law Nienaber, A ‘The “intentional” sexual SAPL 441. Van Heerden, C and Botha, M ‘Chal- transmission of HIV: A note of caution in lenges to the South African corporate light of Phiri v S’ (2014) 29.2 SAPL 522. Family law leniency policy and cartel enforcement’ Swanepoel, M ‘Legal aspects with regard Coetzee Bester, B and Louw, A ‘Domes- (2015) 2 TSAR 308. to mentally ill offenders in South Africa’ tic partners and “The Choice Argument”: (2015) 18.1 PER 3238. Quo Vadis?’ (2015) 18.1 PER 2951. Constitutional Court De Jong, M and Pintens, W ‘Default mat- Rautenbach, IM ‘Overview of consti- Customary law rimonial property regimes and the prin- tutional court judgments on the Bill of Fagbayibo, B ‘How central is the African ciples of European family law – a Euro- Rights – 2014’ (2015) 2 TSAR 379. Union to the promotion of traditional pean – South African comparison (part African values? A critical engagement’ 1)’ (2015) 2 TSAR 363. Constitutional law (2014) 29.2 SAPL 313. Heaton, J ‘The pitfalls of international Pretorius, JL ‘Deliberative democracy Iya, P ‘Challenges and prospects for tra- surrogacy: A South African family law and constitutionalism: The limits of ra- ditional leadership in Africa: Towards in- perspective’ (2015) 78.1 THRHR 24. tionality review’ (2014) 29.2 SAPL 408. novative ideas to enhance African values Van Niekerk, G ‘The registration of Venter, R ‘The new parliamentary rule among the youth in South Africa’ (2014) customary marriages: Banda v General on motions of no confidence: An exer- 29.2 SAPL 260. Public Service Sectoral Bargaining Coun- cise of legislative incompetence or qjudi- Kohn, L ‘The failure of an arranged mar- cil (JR3273/2009) (26 February 2014)’ cial mockery?’ (2015) 2 TSAR 395. riage: The traditional leadership/democ- (2014) 29.2 SAPL 494.

DE REBUS – JULY 2015 - 58 - RECENT ARTICLES AND RESEARCH

Insolvency law to demands made on parents’ decision- making in the neonatal intensive care Evans, R and Mthethwa, K ‘Can a debtor unit: Mediation or litigation?’ (2015) 78.1 Open access law waive rights to property envisaged in THRHR 63. section 82(6) of the Insolvency Act 24 of journals: 1936 in an application for voluntary sur- Mining law • African Human Rights Law Jour- render?’(2014) 29.2 SAPL 548. Hartzer, S and du Plessis, W ‘The liabil- nal: www.chr.up.ac.za/index.php/ ity of historical mine authorisation hold- about-the-journal.html ers for rehabilitation of “old order mine • African Public Procurement Law Amechi, EP ‘Leveraging Traditional dumps”’ (2014) 29.2 SAPL 469. Journal (Faculty of Law, Stellenbos- Knowledge on the medicinal uses of ch University, South Africa) http:// plants within the patent system: The dig- Private law applj.journals.ac.za/pub itisation and disclosure of knowledge in Dirix, E ‘Multiculturalism in private law • De Jure published by the Universi- South Africa’ (2015) 18.1 PER 3072. in Europe’ (2015) 2 TSAR 221. ty of Pretoria: www.dejure.up.ac.za/ International criminal law • Journal for Juridical Science pub- Property law lished by the Faculty of Law, Univer- Tladi, D ‘A horizontal treaty on coop- Botha, M ‘The final word: Can a home- sity of the Free State: https://african- eration in international criminal matters: owner’s association veto transfer upon sunmedia.snapplify.com/product/ The next step for the evolution of a com- insolvency?’ (2015) March PLD 2. journal-for-juridical-science-382 prehensive international criminal justice Marais, EJ ‘When does state interference • Law, Democracy & Development system?’ (2014) 29.2 SAPL 368. with property (now) amount to expropri- is the journal of the Faculty of Law at Judicial independence ation? An analysis of the Agri SA Court’s the University of the Western Cape: state acquisition requirement (part I)’ www.ldd.org.za/current-volume. Swart, M ‘Judicial independence at the (2015) 18.1 PER 2983. html regional and sub-regional African courts’ Marais, EJ ‘When does state interference • Potchefstroom Electronic Law (2014) 29.2 SAPL 388. with property (now) amount to expropri- Journal: www.nwu.ac.za/p-per/vol- Judicial review ation? An analysis of the Agri SA Court’s umes state acquisition requirement (part II)’ • Speculum Juris published by the Okpaluba, C ‘Constraints on judicial re- (2015) 18.1 PER 3033. Nelson R Mandela School of Law, view of executive conduct: The juridical Pienaar, GJ ‘The real agreement as causa University of Fort Hare: www.specu- link between the Marikana minework- for the transfer of immovable property’ lumjuris.co.za/articles ers’ imbroglio and the Gauteng e-tolling (2015) 78.1 THRHR 47. saga’ (2015) 2 TSAR 286. Smit, T ‘The unexpected special levy’ Open access Labour law (2015) March PLD 5. websites: Sonnekus, JC ‘Gebrek aan wetenskap Ebrahim, S ‘May an employer substitute vervlak regspraak tot kasuïstiek’ (2015) a sanction imposed by the chairperson • www.lawsofsouthafrica.up.ac.za 2 TSAR 405. for its own? – SARS v CCMA’ (2015) 78.1 • www.saflii.org Van Schalkwyk, LN ‘Sessie van eiendom- THRHR 132. sreg en van terugvorderingsbevoegdheid Fourie, E ‘What constitutes a benefit by – Kan ’n saaklike reg deur sessie oorge- virtue of section 186(2) of the Labour dra word? – Page Automation (Pty) Ltd v Relations Act 66 of 1995? Apollo Tyres Profusa Properties CC t/a Homenet OR South Africa (Pty) Ltd v CCMA 2013 5 Tambo’ (2015) 78.1 THRHR 170. Please note that copies of BLLR 434 (LAC)’ (2015) 18.1 PER 3300. the articles mentioned in Grogan, J ‘Joined at the hip: Shadow over Religious and cultural substance in dismissal disputes’ (2015) this feature are not sup- rights 31.2 EL 3. plied by the author, but Grogan, J ‘Reviewing disciplinary mat- Ratiba, MM ‘“Just piles of rocks to de- ters – section 158(1)(h) of the LRA con- velopers but places of worship to Native may be obtained from the sidered’ (2015) 31.2 EL 10. Americans” – exploring the significance publishers of the journals, McGregor, M ‘Justifying sexual harass- of earth jurisprudence for South African ment based on culture? Never, never, cultural communities’ (2015) 18.1 PER or a law library. never’ (2015) 78.1 THRHR 121. 3197. Rautenbach, IM ‘Requirements for af- For LexisNexis articles firmative action and requirements for Security law the limitation of rights’ (2015) 2 TSAR Sonnekus, JC and Schlemmer, EC ‘Sa- kindly contact: customer- 431. meloop van ’n pactum de non cedendo [email protected] for sessie in securitatem debiti en retensiere- Language rights gte (deel 1)’ (2015) 2 TSAR 239. the publication details. Malan, JJ ‘Die begrip “amptelikheid” van ’n taal in die lig van onlangse buitelandse Sport law regspraak’ (2015) 78.1 THRHR 116. Cornelius, S ‘Die regsgeldigheid van verpligte arbitrasie by geskille oor die Which journals would Local government gebruik van verbode middels in sport’ you like to see featured (2015) 2 TSAR 443. Mathenjwa, MJ ‘The role of the principle in this column? of legality in preserving municipal con- stitutional integrity’ (2014) 29.2 SAPL Meryl Federl BA, Higher Dipl Li- 534. brarianship (Wits) is an archivist Forward your suggstions to

at the Johannesburg Society of Medical law Advocates library. E-mail: mer- [email protected] Van der Westhuizen, CS ‘The solution [email protected]

DE REBUS – JULY 2015 - 59 - OPINION

By Tobie Business rescue plan Jordaan not published timeously

ection 150(5) of the Companies company under business rescue to be set 70637/13, 19-12-2015) (Lazarus AJ), Act 71 of 2008 (the Act) requires aside; or disagreed. Lazarus AJ found that the Act a business rescue practitioner to • application could be made for the does not expressly require a meeting to publish a business rescue plan setting aside of the resolution under be held to extend the time periods for within 25 days after the date of s 130(2)(a). the publication of the business rescue Shis or her appointment, or such longer In terms of s 132(2) of the Act, busi- plan. time as may be allowed by the court or ness rescue proceedings end when the It appears that despite the introduc- the holders of the majority of the credi- court sets aside a resolution or court tion of ‘business rescue’ to the South tors voting interests. order commencing business rescue pro- African corporate landscape years ago, Sections 151 and 152 of the Act re- ceedings, converted the proceedings to even more loopholes are being discov- quire the business rescue plan to then liquidation proceedings, the practitioner ered and creditors are left with more be considered, and possibly adopted, by has filed a notice of termination of pro- questions than answers. It unfortunate- creditors and holders of recognised vot- ceedings or where a business rescue plan ly, furthermore appears that judicial har- ing interests at a meeting convened for has been adopted. mony is still to be reached in respect of such purpose. The further implementa- Gorven J’s decision was, however, certain key aspects of the Act, pertain- tion and success or otherwise of a com- not followed in the recent decision of ing to business rescue; most particularly pany’s business rescue proceedings are Shoprite Checkers (Pty) Ltd v Berry Plum those pertaining to the consequences of dependent on the approval or rejection Retailers CC and Others (GNP) (unre- a failure to timeously publish a business of the business rescue plan. ported case no 47327/2014, 11-3-2015) rescue plan and the manner and form in What happens, however, when a busi- (Tuchten J). which the prescribed publication period ness rescue plan is not published time- In the Shoprite Checkers matter, can be extended. It is hoped that an ap- ously? This question is particularly per- Tuchten J found that failure to publish peal court can settle these uncertainties tinent as the Act does not specify the a business rescue plan within the pre- sooner rather than later. consequence of a failure to publish a scribed or allowed period did not result Creditors are advised to protect them- business rescue plan timeously. in an automatic termination of the busi- selves in the interim by being diligent Until recently, the leading case deal- ness rescue process. and vigilant in protecting their rights ing with the consequences of a failure to Tuchten J further found that if the leg- by ensuring that the business rescue publish a business rescue plan within the islator’s intention was to provide for a practitioner timeously meets his or her prescribed or allowed time period was termination of the business rescue pro- obligations. If creditors believe that a that of Gorven J in the DH Brothers In- cess on the failure to timeously publish company’s placing itself under volun- dustries (Pty) Ltd v Gribnitz NO and Oth- a business rescue plan, an express pro- tary business rescue is simply a strategy ers [2014] 1 All SA 173 (KZP). Gorven J vision to that effect would have been to delay and frustrate creditors or that held that the Act’s silence on this score included in the Act. Tuchten J held that the prescribed time periods for the pub- constituted ‘yet another drafting lacuna’. creditors are not left entirely without lication of a business rescue plan have After considering the trespass on remedy as the Act provides for the con- not been met, creditors can and should creditor’s rights when a company places sent by the holders of the majority of the approach a court to set aside the reso- itself under voluntary business rescue, creditors voting interests to be obtained lution placing the company under busi- Gorven J was of the opinion that the fail- for an extension of the time frames in ness rescue. Consideration should at the ure to publish a plan within the given or which to publish the business rescue same time be given to seeking an order extended period resulted in the termina- plan. The extension must be approved or for winding-up the company. As an alter- tion of the business rescue proceedings. allowed by the holders of the majority of native to winding-up the company, and if He stated that even if he was wrong, one the creditors voting interests. a creditor holds security over the assets of three further consequences followed: As an aside, in DH Brothers, Gorven J of the company, the creditor may wish • a practitioner could file a notice of held that such an extension could only to first exercise its rights, and secure its termination of the business rescue pro- be granted on due notice of a request position, in this regard. ceedings in terms of s 132(2)(b); for the extension and then at a formal • an ‘affected person’ would be entitled meeting of creditors and other affected Tobie Jordaan BCom LLB (Stell) to bring an application under s 130(1) persons. Lazarus AJ, in the recent deci- is an attorney at Cliffe Dekker on the basis that it would be just and sion of Absa Bank Ltd v Golden Dividend Hofmeyr in Johannesburg. equitable for the resolution placing the 339 (Pty) Ltd (GNP) (unreported case no q

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