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No Win No Fee THE SA ATTORNEYS’ JOURNAL JUNE 2018 DECODING S 2(1)(a) AND (b) OF THE CONTINGENCY FEES ACT A ‘without prejudice’ letter breathes Reinstatement except when new life into prescribed matter ‘not reasonably practicable’ – a discussion of s 193(2)(c) of the LRA No Win No Fee The right to road safety Labour law v the law of contract and the Constitution as amicus curiae? Who is responsible for accounting records? Portfolio Committee satisfied with progress made on National Minimum Wage Bill Africa Botswana Ghana Kenya Mauriti us Namibia Nigeria Swaziland Uganda Zimbabwe Zambia What if you had the widest sight of legislati on in Africa available? Africa is business-ready and with a signifi cant appeti te for growth in the conti nent, being deliberate in your legal preparati on and determined to achieve the best possible outcome, is now much easier. With our focus on advancing legal intelligence in Africa we can help you understand the legal terrain bett er. Lexis® Library provides businesses with access to country legislati on, commentary and regulatory informati on from a single, centralised platf orm. Now you can access the widest range of African legislati on and with Lexis® Assure, easily keep track of regulatory changes that may impact your business in these countries. LexisNexis makes African legislati on accessible. Find out more at www.lexisnexis.co.za/africa Call 0860 765 432 or email [email protected] advancing what’s possible REGULATORY ALERTS COMPREHENSIVE WIDEST SELECTION FOR AFRICA ONLINE RESEARCH TOOL OF AFRICA CONTENT LexisNexis, Lexis Library and the Knowledge Burst logo are registered trademarks. Other products or services may be trademarks or registered trademarks of their respecti ve companies. © 2018 LexisNexis. IMA00002-0 0118 7366_LN_Africa_DR_A4_FA.indd 1 2018/05/15 11:40 THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL CONTENTS THE SA ATTORNEYS’ JOURNAL JUNE 2018 DECODING s 2(1)(a) aND (b) 14 OF THE CONTINGENCY FEES ACT June2018 Issue 585 A ‘without prejudice’ letter breathes Reinstatement except when ISSN 0250-0329 24 new life into prescribed matter ‘not reasonably practicable’ – a discussion of s 193(2)(c) 26 of the LRA No Win No Fee Regular columns 20 The right to road safety Editorial 3 Labour law v the law of contract 36 and the Constitution as amicus curiae? Who is responsible 11 for accounting records? Letters to the editor 4 Portfolio Committee satisfied with progress 6 made on National Minimum Wage Bill News Land expropriation discussed at Cliffe Dekker Hofmeyr briefing 6 Portfolio Committee satisfied with progress made on National Minimum Wage Bill 9 People and practices 9 6 8 Practice management Who is responsible for accounting records? 11 No Win No Fee The law reports 30 Case note 14 20 Labour law v the law of contract and the Constitution as amicus curiae? 36 New legislation 39 Employment law update 40 24 26 Recent articles and research 43 DE REBUS – JUNE 2018 - 1 - EDITOR: FEATURES Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) Decoding s 2(1)(a) and (b) of the Contingency 14 PRODUCTION EDITOR: Fees Kathleen Kriel BTech (Journ) (TUT) lients should be protected against potential abuses, but the question SUB-EDITOR: SUB-EDITOR: is: What constitutes a reasonable fee and what is regarded as over- Kevin O’ Reilly Isabel Joubert Creaching? In this article, Gert Nel discusses s 2 (1)(a) and (b) of the MA (NMMU) BIS Publishing (Hons) (UP) Contingency Fees Act 66 of 1997 and focusses on a number of issues, in- NEWS REPORTER: EDITORIAL SECRETARY: cluding the origin of contingency fees, foreign law, incentives for attorneys, Kgomotso Ramotsho Shireen Mahomed the reasonability of fees and how the fees should be calculated. Mr Nel also Cert Journ (Boston) Cert Photography (Vega) asks if the client should be protected against potential abuses? He adds that EDITORIAL COMMITTEE: guidance should be given as to the qualification of what constitutes a rea- Giusi Harper (Chairperson), Peter Horn, Denise Lenyai, sonable fee and what should be regarded as overreaching, which is always Maboku Mangena, Mohamed Randera, subject to scrutiny by either the professional controlling body or the courts. EDITORIAL OFFICE: 304 Brooks Street, Menlo Park, Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. The right to road safety Tel (012) 366 8800 Fax (012) 362 0969. 20 E-mail: [email protected] outh Africa is internationally one of the most unsafe countries for road DE REBUS ONLINE: www.derebus.org.za travel. Fourteen thousand of its citizens (38 per day) die on its roads CONTENTS: Acceptance of material for publication is not a guarantee Sand as many as an estimated 524 000 persons – based on annual hos- that it will in fact be included in a particular issue since this depends on pitalisation figures and fatality rates – are annually injured in road crashes. the space available. Views and opinions of this journal are, unless otherwise stated, those of the authors. Editorial opinion or comment is, unless other- The Road Safety Annual Report 2017 published by the International Traf- wise stated, that of the editor and publication thereof does not indicate the fic Safety Data and Analysis Group and the International Transport Forum agreement of the Law Society, unless so stated. Con tributions may be edited states that out of 40 countries South Africa has the highest fatality rate per for clarity, space and/or language. The appearance of an advertisemen­­ t in this publication does not neces sarily indicate approval by the Law Society 10 000 vehicles. Professor Hennie Klopper writes that the economic costs for the product or service ad ver tised. of traffic crashes amount to a staggering R 142,92 billion per annum. Al- De Rebus editorial staff use online products from: though the South African government has framed an impressive and cred- • LexisNexis online product: MyLexisNexis. Go to: www.lexisnexis.co.za; ible road safety strategy its practical implementation seems to be inefficient and • Juta. Go to: www.jutalaw.co.za. and/or ineffective. PRINTER: Ince (Pty) Ltd, PO Box 38200, Booysens 2016. AUDIO VERSION: The audio version of this journal is available A ‘without prejudice’ letter breathes new life free of charge to all blind and print-handicapped members of 24 Tape Aids for the Blind. into prescribed matter ADVERTISEMENTS: Main magazine: Ince Custom Publishing ccording to South African law, and more specifically in the case of Contact: Greg Stewart • Tel (011) 305 7337 ABSA Bank Ltd v Hammerle Group 2015 (5) SA 215 (SCA), one excep- Cell: 074 552 0280 • E-mail: [email protected] Ation to without prejudice communication being inadmissible to court Classifieds supplement: Contact: Isabel Joubert is correspondence amounting to an acknowledgement of insolvency. The Tel (012) 366 8800 • Fax (012) 362 0969 PO Box 36626, Menlo Park 0102 • E-mail: [email protected] rationale behind the exception being, that such an admission, even if made ACCOUNT INQUIRIES: David Madonsela in confidence, cannot be considered to be privileged as public policy dic- Tel (012) 366 8800 E-mail: [email protected] tates that liquidation or insolvency proceedings are a matter, which by its CIRCULATION: De Rebus, the South African Attorneys’ Journal, is very nature, involve the public interest. The question posted to the Supreme published monthly, 11 times a year, by the Law Society of South Court of Appeal (SCA) in KLD Residential CC v Empire Earth Investments 17 Africa, 304 Brooks Street, Menlo Park, Pretoria. It circulates free of (Pty) Ltd (2017) 3 All SA 739 (SCA) was whether a second exception to with- charge to all practising attorneys and candidate attorneys and is out prejudice rule is recognised in South African law. The so-called second also available on general subscription. exception refers to where inadmissibility would not apply to without preju- ATTORNEYS’ MAILING LIST INQUIRIES: Gail Mason dice communication when the communication is solely relied on to prove an Tel (012) 441 4629 E-mail: [email protected] All inquiries and notifications by practising attorneys and candi- acknowledgement of liability, which would have the effect of interrupting date attorneys should be addressed to the relevant law society prescription in terms of s 14 of the Prescription Act 68 of 1969. Herbert which, in turn, will notify the Law Society of SA. James David Robertson deals, in this article, with two conflicting pieces of SUBSCRIPTIONS: public policy. General, and non-practising attorneys: R 892 p/a (VAT excl) Retired attorneys and full-time law students: R 684 p/a(VAT excl) Cover price: R 94 each(VAT excl) Reinstatement except when ‘not reasonably Subscribers from African Postal Union countries (surface mail): 26 R 1 615 (VAT excl) practicable’ – a discussion of s 193(2)(c) of the Overseas subscribers (surface mail): R 1 972 (VAT excl) NEW SUBSCRIPTIONS AND ORDERS: David Madonsela LRA Tel: (012) 366 8800 • E-mail: [email protected] amsanqa Mila writes that the primary remedy for an unfair dismiss- al is reinstatement or re-employment, because of the importance of Tjob security in our country. Reinstatement for a dismissed employee means returning to the position the employee held at the time of the dis- © Copyright 2018: Law Society of South Africa 021-21-NPO missal. Re-employment may place the employee into a different position, Tel: (012) 366 8800 other than the one held at the time of dismissal. For many employers facing the reinstatement of an employee they have dismissed is unpalatable and Member of will seek to persuade the Commission for Conciliation, Mediation and Arbi- The Audit Bureau of tration or Labour Court that it is not practicable to do so.
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