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IS IT TIME to JETTISON the MAXIM RES IPSA LOQUITUR? 800Th

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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of the end – dissolution of marriage under accrual system Beware of undertakings: The irrevocable instruction that was revoked Biodiversity law and the weeding out of alien species 800th anniversary of the Magna Carta CONTENTS THE SA ATTORNEYS’ JOURNAL JULY 2015 Issue 554 THE SA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 Oscar Pistorius 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 Township 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, Pretoria. 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. Con tributions 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 neces sarily indicate approval by the Law Society marriage under accrual system for the product or service ad ver tised. 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.
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