Revised Checklist for Leave to Appeal to the SCA

THE SA ATTORNEYS’ JOURNAL

APRIL 2015

Court-annexed mediation: Should it be embraced by the legal profession?

Redundant or relevant? The law of unjustified enrichment

Fixed or flexible: Shifren ‘shackle’

Revised checklist for leave to appeal to the SCA

CONTENTS THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL APRIL 2015 Issue 551 ISSN 0250-0329

6 Regular columns Editorial 3

Letters to the editor 4

Book announcements 5 AGM news Gumede, Fischer and Omar fondly remembered at NADEL AGM 6 News New Sheriff’s Board appointed 8 LSNP to have elections for councillors 9 Court-annexed mediation officially launched 11 SADC news Combatting corruption in the SADC 12 LSSA news LSSA and IEC celebrate their partnership for the 2016 municipal elections 14 Electoral democracy and voter education: New subject introduced to LEAD curriculum 15 Significant leadership: A programme for senior women lawyers 15 7 7 2015 examination dates 16

People and practices 18

Practice note Is using your wearable technology while driving a traffic offence? 19 Revised checklist for leave to appeal to the SCA 20

Practice management Is your client a ticking bomb? 22 9 10 The law reports 39 Case note Dally for a day: Spatium deliberandi and the importance of timing 47

New legislation 48

Books for lawyers 49

Employment law update 51

Opinion Can I protect my mobile app idea? 54 28 32 Recent articles and research 55

DE REBUS – APRIL 2015 - 1 - EDITOR: FEATURES Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) PRODUCTION EDITOR: N ews EDITOR: Court-annexed mediation: Should it be Kathleen Kriel – Nomfundo Manyathi-Jele – 24 BTech (Journ) (TUT) NDip Journ (DUT) embraced by the legal profession? BTech (Journ)(TUT) t first glance, the legal practitioner might view court- sUB-EDITOR: sUB-EDITOR: Kevin O’ Reilly – Isabel Janse van Vuren – annexed mediation with scepticism, if not finding MA (NMMU) BIS Publishing (Hons) (UP) the idea questionable that the intended mediation A Editorial secretary: may prove to be beneficial to all concerned. Indeed many Shireen Mahomed may feel mediation is a waste of time and rarely utilised Editorial Committee: successfully and the process of mediation can become a le- Danie Olivier (Chairperson), Peter Horn, gal ornament if people do not buy into the process. In this Mohamed Randera, Lutendo Sigogo article, Benjamin Charles van der Berg explores the nature Editorial Office: 304 Brooks Street, Menlo Park, of mediation and the potential benefits thereof. Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. Tel (012) 366 8800 Fax (012) 362 0969. E-mail: [email protected] 28 Mediation: A perfect solution to health DE REBUS ONLINE: www.derebus.org.za care disputes Contents: Acceptance of material for publication is not a guarantee 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 stated, those of the authors. Editorial opinion or comment is, unless other- outh African health care disputes resulting in litiga- wise stated, that of the editor and publication thereof does not indicate the tion are dramatically increasing. Not only the number, agreement of the Law Society, unless so stated. Contributions may be edited but also the sizes of medical malpractice claims have for clarity, space and/or language. The appearance of an advertisemen t in S this publication does not necessarily indicate approval by the Law Society increased. Health care disputes and following litigation do for the product or service advertised. De Rebus editorial staff use the LexisNexis online product: MyLexisNexis. not only pose huge financial risks, but are usually emotion- Go to www.lexisnexis.co.za for more information. ally loaded as patients feel humiliated, angry, frustrated and P Incerinter (Pty): Ltd, PO Box 38200, Booysens 2016. hurt, over and above the financial damages they might have Audio version: The audio version of this journal is available suffered. In her article, Marietjie Botes discusses why me- free of charge to all blind and print-handicapped members of diation is tailor made for health care disputes. Tape Aids for the Blind. Advertisements: Main magazine: Ince Custom Publishing Contact: Ian Wright • Tel (011) 305 7340 • Fax (011) 241 3040 Cell: Fixed or flexible: Shifren ‘shackle’ 082 574 6979 • E-mail: [email protected] 32 Classifieds supplement: Contact: Isabel Janse van Vuren Tel (012) 366 8800 • Fax (012) 362 0969 he Shifren principle came about in the Appellate de- PO Box 36626, Menlo Park 0102 • E-mail: [email protected] Account inquiries: David Madonsela cision of SA Sentrale Ko-op Graanmaatskappy Bpk v Tel (012) 366 8800 E-mail: [email protected] TShifren en Andere 1964 (4) SA 760 (A). There are vari- Circulation: De Rebus, the South African Attorneys’ Journal, is ous arguments for and against the Shifren principle. Recent published monthly, 11 times a year, by the Law Society of South Africa, 304 Brooks Street, Menlo Park, Pretoria. It circulates free of developments in the law has seen courts loosening the Shi- charge to all practising attorneys and candidate attorneys and is fren ‘shackle’ on some agreements through the application also available on general subscription. of public policy. In her article, Anye Jansen van Rensburg Attorneys’ mailing list Inquiries: Gail Mason Tel (012) 441 4629 E-mail: [email protected] discusses the three most recent cases where the courts have All inquiries and notifications by practising attorneys and candi- refused to enforce a non-variation clause on the basis that it date attorneys should be addressed to the relevant law society was against public policy. which, in turn, will notify the Law Society of SA. Subscriptions: General, and non-practising attorneys: R 838 p/a Retired attorneys and full-time law students: R 644 p/a Redundant or relevant? Cover price: R 88 each 36 Subscribers from African Postal Union countries (surface mail): The law of unjustified enrichment R 1 332 (VAT excl) Overseas subscribers (surface mail): R 1 626 (VAT excl) New subscriptions and orders: David Madonsela njustified enrichment and the action of the unauthor- Tel: (012) 366 8800 • E-mail: [email protected] ised administrator are legal principles that have be- Ucome redundant in our law, as opposed to legal doctrines capable of survival. Nokubonga Fakude discusses how unjustified enrichment, for practical purposes, should © Copyright 2015: not be recognised as an independent cause of action, sepa- Law Society of South Africa 021-21-NPO rate from the law of contract and the law delict and, in cer- Tel: (012) 366 8800 tain circumstances, criminal law and property law and why the actio negotiorum gestio has no place in South African Member of law. The Audit Bureau of Circulations of Southern Africa

DE REBUS – APRIL 2015 - 2 - EDITOR’S NOTE Exciting times ahead

n the next few months, ‘6 (5) The Council, with re- De Rebus will be em- gard to education in law and barking on a process of legal practice generally – redesigning its website (e) may determine, after con- so that it can be acces- sultation with relevant role- sibleI on all platforms includ- players and legal practitio- ing tablets and smartphones. ners in general, conditions Mapula Thebe – Editor Readers will be able to book- relating to the nature and ex- mark the website on their tent of continuing education devices to access it as an ap- and training, including com- Notice: plication. De Rebus wants to pulsory post-qualification have frequent and current professional development; De Rebus experienced server interaction with its readers; … difficulties over the past month therefore the website will (h) must report annually to and would like to apologise for any inconvenience caused dur- be updated regularly to give the Minister on – readers up-to-date informa- ing this time. … If you did contact us and did tion on the happenings of (iii) measures adopted to the legal profession. not receive a reply from the enhance entry into the pro- staff, please resend the e-mail The new website will have a fession, including the remu- to us at [email protected]. powerful search functional- neration of candidate legal za ity where readers can search practitioners and continuing for key phrases and have ac- legal education to develop cess to a database of articles Would you like to skills of legal practitioners.’ published in the journal that write for De Rebus? During the LPA era, CPD as dates back to 1998. Articles a form of continuing legal on our new website will also De Rebus welcomes article con- education and training will be searchable via any search tributions in all 11 official lan- form part of the mandate guages, especially from legal engine, which is not the case practitioners. Practitioners and on our current website. of the Legal Practice Coun- cil. Legal practitioners will others who wish to submit fea- The website will be user ture articles, practice notes, case friendly as we want to en- be able to use De Rebus as a notes, opinion pieces and letters courage readers to visit the platform to accumulate CPD can e-mail their contributions to website frequently. Readers points. For example, practi- [email protected]. tioners can meet their CPD The decision on whether to will be asked to register on publish a particular submission the website so that they can requirements by sending ar- is that of the De Rebus Editorial update their information and ticles to the journal or read- Committee, whose decision is be able to save articles they ing articles and being tested final. In general, contributions on the articles they have should be useful or of inter- want to read at a later stage est to practising attorneys and on the website’s dashboard. read. That is where the im- must be original and not pub- This exiting digital move will portance of the new website lished elsewhere. For more in- also assist De Rebus in fu- comes in, practitioners will formation, see the ‘Guidelines ture so that it can be used as be able to send and read ar- for articles in De Rebus’ on our ticles on the website, which website (www.derebus.org.za). a tool for continuing profes- • Please note that the word limit sional development (CPD). will be tracked. De Rebus is now 2000 words. Chapter 2 s 6(5)(e) and (h) questionnaires on articles • Upcoming deadlines for article of the Legal Practice Act 28 can also be available on the submissions: 20 April and 18 of 2014 (LPA) states that: website. May 2015.

DE REBUS – APRIL 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.

The challenge is not on ify as a legal practitioner will definitely should not be silent on this issue. The have financial implications. It will now be situation should be treated with the ur- one more expensive to become a legal practi- gency it deserves. An alarm has been raised on the quality, tioner, which some are not going to af- Matimba Hlungwane, attorney, or lack thereof, of newly qualified legal ford. Unlike qualifications in other fields Johannesburg practitioners. The general consensus of practice, there might not be many among experienced legal practitioners bursaries available for law students. If Response from Legal seems to suggest that the current LLB all institutions were to follow the same degree is not working. Hence the need route as Wits, the likelihood is that there Education and to have the curriculum revised. Wits Uni- will be less people from historically dis- Development versity became the first institution to advantaged backgrounds qualifying as ‘rectify the defect’ by restructuring the legal practitioners. It was for this reason I understand the concern of the writer. curriculum. I did not hear any reaction to that the degree was shortened in the Access to the profession and a high this from the already qualified and prac- first instance. standard of tuition to all are priorities ticing legal practitioners. For a person to One wonders if there are any other for consideration of a new dispensation. qualify for an admission to an LLB de- cheaper options out there to improve In 2014, the Council on Higher Education gree, he or she should first complete an the quality of newly qualified legal prac- (CHE) launched a review of the stand- undergraduate degree. The LLB degree titioners. How about law firms and mem- ards for the LLB. Consultation took place is now a postgraduate degree and takes bers of the Bar suggesting a uniform widely and the attorneys’ profession two years to complete. The duration for curriculum for the LLB degree for all made substantial input. In addition, the both BCom Law and BA Law degrees is institutions? Will it make a difference if profession is actively involved in a task three years. Understandably, Wits lis- law firms and members of the Bar were team with law deans, lecturers and other tened to the concerns from members of to make it part of their social responsi- stakeholders who are looking at the is- the profession. Considering the provi- bility to dedicate part of their time to sues that are raised by the writer. sions of s 26 of the Legal Practice Act 28 having workshops with law students The draft that serves before the CHE at of 2014 a person aspiring to become a le- and lecturers at the institutions with the the moment sets clear expectations with gal practitioner will (at Wits) first have to objective of closing the gap between the regard to the future curriculum. spend five years studying (ie, three years theory taught at the institutions and how No decision has been made with re- for BCom Law or BA Law and two years things are actually done in the practice gard to the structure of the LLB, in fact for an LLB), six months at the School for of law? It surely cannot be left entirely I am aware that there are different views Legal Practice (which is optional) and one to the institutions to determine a proper on the issue. The debate will continue, or two years of serving articles. way of improving the quality of Legal the impact on accessibility, financial in The lengthening of the period to qual- Practitioners. All stakeholders involved particular, will be a crucial factor.

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DE REBUS – APRIL 2015 - 4 - The profession responded to the Wits or in addition to the LLB. view the practice emanates from lack of decision, in fact, it engaged at national The elements for vocational practical intensive training in assessment of legal level with stakeholders and participated training (s 26) must still be determined issues and laxity in applying ones legal in a television debate on the issue. during the transitional process. mind to the facts in issue. These insti- The Wits degree, to the best of my tutions employ qualified professionals knowledge, will not be a post-graduate Nic Swart, Chief Executive Officer Law who are expected to be versed in legal degree. It is intended as a second degree. Society of South Africa, Director Legal intricacies. Secondly, the panel of attor- I am advised that the roll out is under Education and Development, neys who represent these institutions consideration, inter alia, the issue of ac- Pretoria cannot hide behind the veil of lack of cessibility and the position of current instructions. students. Continuation must obviously How the RAF settles With the recent introduction of court- take place in accordance with require- annexed mediation in the magistrate’s ments of the Department of Higher Edu- claims – the issue is courts, I am waiting expectantly to see if cation. broader than we may these institutions will take the bait and In terms of the Legal Practice Act 28 assume be the first to utilise this progressive of 2014 (LPA), the future Legal Practice process. Council will have the power to contrib- I cannot help but agree with my col- Since these concerns have arisen on a ute to the quality of the degree, on the league Leslie Kobrin (How the RAF set- number of occasions from time imme- same basis as currently allowed in terms tles claims 2015 (Jan/Feb) DR 5) on the morial, as a way forward, I would sug- Higher Education Act 101 of 1997. manner in which the Road Accident Fund gest that a forum constituting, among The writer is correct in his plea for (RAF) tends to settle claims at the very others, practising attorneys, costs con- practitioners to be more involved. This last moment. This waste of taxpayers’ sultants, the RAF, the office of the State will depend on faculty needs and practi- money also extends to other tax funded Attorney, the Passenger Rail Agency of tioners’ availability and keenness to par- institutions that, by lack of timeous res- South Africa, etcetera be convened to ticipate in academic programmes. olution of matters under litigation, tend which concerns of this nature can be for- I am not of the view that the LPA is pre- to wait until the very last moment before warded and addressed. scribing a longer academic programme. conceding to certain obvious legal prin- However, if a person has another, appro- ciples and facts. Andries Nthebe, attorney,

priate degree, then the LLB must be com- This practice unfortunately also ex- Leondale pleted in not less than two years. It does tends to the office of the State Attorney q not require another ‘first’ degree before and other similar institutions. In my

Book announcements

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DE REBUS – APRIL 2015 - 5 - AGM NEWS Gumede, Fischer and Omar fondly remembered at NADEL AGM

he National Association of Democratic Lawyers (NA- DEL) held its national conference and annual general meeting (AGM) at the end of February. The AGM was Theld in Cape Town from 27 February to 1 March. Delegates at the AGM included chairperson of the portfolio committee on Justice and Correctional Services, Doc- tor Mathole Motshekga, retired Justice of the Constitutional Court, Zak Yacoob, Judge in the Western Cape High Court, Vincent Saldanha, Cuban Ambassador to South Africa, Carlos Cossio and NADEL honorary member, Silas Nkanunu, who has only missed one NADEL conference since 1988 to date. The theme for this year’s AGM was ‘NADEL being part of civil society is separate from state and business institu- NADEL honorarium member, Silas Nkanunu and retired state attorney and tions – A crisis of conscience within its national executive committee member of NADEL, Krish Govender, gave a ranks’. The ninth annual Dullah Omar dialogue on the life and times of NADEL co-founder and former Memorial Lecture Dinner was also held Justice Minister, Dullah Omar, at the ninth annual Dullah Omar Memorial on 28 February. Lecture Dinner held in Cape Town during the NADEL AGM. In his opening address NADEL Presi- dent, Max Boqwana, spoke about NADEL’s relationship with Cuba. He also made a ate tasks were many but that one of them from government. We have been teth- special call to the Swaziland courts and was to renew and build the organisation. ering alone as the legal profession and government on the matter involving the ‘What has become our mission as law- being confused amongst ourselves and arrests of human rights lawyer, Thulani yers and NADEL today and what has there has not been proper direction as to Maseko, and the editor of monthly pub- become our immediate task?’ asked Mr where this country is going in terms of lication, The Nation magazine, Bheki Boqwana. He said that as lawyers, the the legal profession,’ he said. Makhubu, for articles published in the first answer to this question stems from According to Mr Boqwana, 90 years February and March 2014 editions of the the preamble of the Constitution, which later South Africa is still operating pure- magazine (see 2014 (May) DR 15; 2014 states that our duty is to heal the divi- ly on the Peace Treaty of Vereeniging of (Aug) DR 16; and 2014 (Sept) DR 15). sions of the past and establish a society 1902 adding that the current Constitu- The two were arrested after the maga- based on democratic values, social jus- tion was being ignored. This treaty was zine published a report questioning the tice and fundamental human rights; lay the peace treaty, signed on 31 May 1902. detention of a government vehicle in- the foundations for a democratic and The treaty ended the Second Boer War spector, Bhantshana Gwebu, who was open society in which government is between the South African Republic and detained for nine days without being based on the will of the people and every the Republic of the Orange Free State, on charged. The articles criticised the arrest citizen is equally protected by law; im- the one side, and the British Empire on as an abuse of authority and a lack of prove the quality of life of all citizens the other. impartiality of the Swazi judicial system. and free the potential of each person; This settlement provided for the end The article written by Mr Makhubu ap- and build a united and democratic South of hostilities and eventual self-govern- peared in the February issue of The Na- Africa able to take its rightful place as a ment to the Transvaal (South African tion, which did not receive much atten- sovereign state in the family of nations. Republic) and the Orange Free State as tion, and the one by Mr Maseko, which According to Mr Boqwana, NADEL colonies of the British Empire. The Boer dealt with the same issue but provided needed to renew and rebuild itself. He republics agreed to come under the sov- a breakdown of the legal issues involved said that at age 27, Nadel was wobbly ereignty of the British Crown and the and was published in March. and was not sure whether or not it had British government agreed on various Mr Maseko and Mr Makhubu are still in come of age. details. ‘It is a horrible indictment to us jail, their matter will go on appeal soon. Mr Boqwana said that there was a need as South Africans and it is urgent that we Mr Boqwana noted that South Africa to engage with government. He said that must take this matter forward,’ he said. has achieved much to be proud of. He the Legal Practice Act 28 of 2014 (LPA) Mr Boqwana said that NADEL under- added that the legal constitutional sys- has been promulgated adding that the stands the complaint of the lack of pool tem was stable, but that the country had LPA still had more questions than an- of black and women lawyers. He said become more divided. ‘There is a great swers. ‘It has more issues that are not so NADEL must do something radical about divide between the haves and the have- clear than where we are supposed to be that. He suggested that NADEL should nots,’ he said. He asked what needed to going. It is one of those issues where we identify eight women lawyers and every be done and said that NADEL’s immedi- have not been provided with leadership Saturday it avails judges to train them.

DE REBUS – APRIL 2015 - 6 - ‘We have done this in the past and it President. ‘You cannot have any lawyer is amazing that from that core, four of who is in business with their family them are now justices of the Supreme members, or someone in government or Court of Appeal. We need to keep this the president and at the sametime want project and progress because there is no to give them advice. How are they going longer an excuse why we do not have a to be pleasing their so called client when pool of black and women lawyers. It is they have a relationship with them? It is our responsibility as NADEL, together not unusual to see so many wrong deci- with judge presidents to do this. The sions being taken. Cases are being lost. training of young lawyers is also impor- Government officials usually just tell tant that is why it is inexcusable that we you okay bye bye, I will get me the law- do not have a training coordinator but yer who will tell me what I want to hear. have training funds,’ he said. That is the culture that is plaguing insti- Mr Boqwana concluded by saying that tutions of government and I speak as a the Attorneys Development Fund (ADF) former state attorney,’ he said. is there to assist young lawyers to start Mr Govender said that there were up their practice. He added that failure many times that his office, through his of them to not contact the ADF to start actions, was fired as state attorneys and up their practices is purely because of replaced by private lawyers. He added their own lack of will. He added that law- that all the person in power wants is to yers should work side by side and not Farieda Omar, wife of the former run a case the way that they want to and against one another. NADEL co-founder and former probably reduce someone to poverty. He Doctor Motshekga, who is one of the Justice Minister, Dullah Omar at the concluded by saying that it was the law- founding members of NADEL, said that ninth annual Dullah Omar Memo- yer’s duty to stop this practice. while there is NADEL, that South Africa rial Lecture Dinner held in Cape Justice Yacoob gave a tribute to law- still had unfinished business as it had Town during the NADEL AGM. yers and anti-apartheid activists Bram to create a national democratic lawyers Fischer and Archie Gumede. In his trib- movement that incorporates all law- ute, he reflected on the lessons that yers in the country regardless of race. torneys in doing the right thing. NADEL can learn from the two. Justice He added that there were many great He added that the rule of law is some- Yacoob said that both teach that one Afrikaners that were part of our struggle thing that attorneys must subscribe to. cannot be a lawyer in a vacuum and that and made an example of Bram Fischer, ‘If we live it in all the things that we do, lawyers cannot live by law alone. adding that there were some progres- then it will be easy to follow,’ he said. Justice Yacoob said that their story sive, enlightened Afrikaner lawyers that There was a common view from Doc- tells us that both advocates and attor- NADEL should identify and form a new tor Motshekga, Mr Boqwana and Mr Ma- neys can work together. It tells us that lawyer’s movement with. ‘The type of bunda that there is no need for NADEL the separation of the bar and side bar society we want to see is not a different and the BLA to continue to operate as is not necessarily a very good thing and society there is call for the creation of two distinct organisations. that all legal practitioners can be united a united democratic nonracial, nonsexist Mr Govender noted that when we say and should always work together. ‘Nadel democratic society that represents every we should make changes to the Consti- in a sense of having advocates and attor- citizen of the country,’ he said. tution that we should do it and feel free neys in it and all legal practitioners in a Dr Motshekga said that the Constitu- to do so. ‘I know it is not easy to amend sense embraces what Bram Fischer and tion recognises common law, Roman the Constitution and no one is saying we Archie Gumede stood for,’ he said. Dutch law, indigenous African law/cus- should amend the Constitution accord- Justice Yacoob said that they both be- tomary law but that when one goes to the ing to whichever president is in power universities, one finds that all lawyers but the Constitution is a document that are taught on Roman Dutch law, Eng- we can mould out and make a living doc- lish common law and are not taught in ument when there are problems experi- African law. He added that this did not enced and mistakes that we see happen. make sense as most of the people to If under one president nothing seriously whom the law apprise are indigenous goes wrong we will not know how the African people. ‘The judges that handle Constitution can work for or against us the cases will have information on Ro- but it takes another person who could man Dutch law but will not take into be abusing the Constitution and then account the living law of the majority we will say no hold up, let us change the of African people. There is something Constitution,’ he said. wrong with the legal education in the Mr Govender said that where there is country,’ he said. the ability to manipulate a Constitution Dr Motshekga concluded by saying or exploit a situation against what is that lawyers cannot act alone in fight- best for the country then the Constitu- ing racism, and inequality. He said that tion needed to be looked at. ‘The issue of NADEL was too quiet where its voice is land is a classic example. The land clause required. in the Bill of Rights was a compromise of Retired state attorney and national the worse kind. It was a compromise to executive committee member of NADEL, accommodate the economic status quo Krish Govender, spoke on the route of after 1994,’ he said. Retired Justice Zak Yacoob giving NADEL to this point. He said that lawyers Mr Govender said that a true and hon- a tribute to Bram Fischer and cannot say that society has to abide by est lawyer who acts ethically should nev- Archie Gumede at the recently held the rule of law and leave it like that and er have a relationship with any minister, NADEL AGM held in Cape Town. think the rule of law is going to guide at- Member of the Executive Council or the

DE REBUS – APRIL 2015 - 7 - NEWS lieved that the law was not necessarily Justice Yacoob said that there is politi- release of all of the Cuban Five was a about making money but more impor- cal reality out there and unless lawyers victory for justice and for international tantly about the reality of the relatively are prepared to get their hands dirty and solidarity. poor people in society today. are prepared to make their contribution The Cuban Five will be visiting South Justice Yacoob said that both teach in changing that political reality lawyers Africa on 26 June 2015. Their itinerary that the law can be used for proper in the country are not going to go any- will be finalised in the next month. Be- purposes and that laws which are not where. fore going to print, all arrangements for right should not be obeyed. He added Mr Saldanha reflected on national dis- the visit were due to be finalised by the that both would have valued the South course that NADEL should be dealing end of March. African Constitution, and that both of with. He recited a poem about being a them thrived, not as lawyers but thrived Somalian and asked why NADEL was not Nomfundo Manyathi-Jele in making a contribution to the political vocal about condemning xenophobia. [email protected] arena. They teach us that lawyers cannot Ambassador Cossio gave the latest live by law alone. developments in Cuba. He said that the q

New Sheriff’s Board appointed

he Minister of Justice and Con- Meko Magida rently the sheriff for Bloemfontein East stitutional Development, Mi- High and lower courts in the Free State. Mr Magida holds BProc (University of chael Masutha, has appointed She holds a National Diploma in Civil the Western Cape) and LLB (University 11 members to serve on the Law Administration from the University of South Africa (Unisa)) degrees and is newly constituted South Afri- of South Africa and various certificates completing his final year in LLM (Unisa) Tcan Board of Sheriffs. The term of office for courses in sheriffing. this year. He served as a commissioner of the new board commenced on 2 March for Employment Equity (appointed to 2015 and it is for a period of three years. NomaJwara Victoria Soga advise the Minister of Labour) and was According to the Justice Department, Ms Soga has been in the profession since a member of a Statutory Commission the new board is broadly representative 1993 when she started off as a messen- appointed to investigate allegations of in respect of race, gender and geographi- ger in the King Williams Town Sheriff poor service delivery and maladminis- cal composition. The board comprises Office and later as a deputy sheriff. She tration at the Oudtshoorn Municipality. six male and five female members from was appointed as the sheriff for Alice various provinces in the country. The Nomakhosi Skosana during November 2002 and, with effect new board members are: from 1 December 2012, she was appoint- Ms Skosana holds a BCom in accounting. ed as the sheriff of Port Elizabeth West. Thamsanqa Tembe She has extensive information and com- She was also an acting sheriff for Fort Mr Tembe is a practicing attorney and munications technology industry experi- Beaufort, Seymour, Adelaide, Middledrift holds a BProc degree from the University ence at strategic and operational general and Keiskammahoek. of KwaZulu-Natal. He was admitted as an management in Africa, having also ven- attorney in 1998 and as a conveyancer in tured into the banking and broadcast- Mmathoto Lephadi 2001. Mr Tembe is a member of the out- ing space. She has finance, governance, Ms Lephadi has BProc and LLB degrees going board and has been nominated by strategy and general management exper- and was a lecturer at the University of the Law Society of South Africa to con- tise. Bophuthatswana for one year. She was tinue to serve as its representative. previously employed as a state advocate, Charmaine Mabuza legal adviser, a family advocate with Lesiba Mashapa Ms Mabuza is the chairperson of the the Department of Justice and Consti- Mr Mashapa has 14 years’ experience in board. She was one of the first black tutional Development, Corporate Legal the legal profession, which includes, in- woman sheriffs appointed during 2002 Consultant and later Corporate Legal ter alia, lecturing, practising for his own as the sheriff for the Nelspruit High Secretary for Eskom, Group Company account and working as a legal adviser Court (Mpumalanga) and subsequently Secretary for Denel (Pty) Ltd, and as the with the National Credit Regulator. He thereafter as sheriff for the lower court. Group Company Secretary at Telkom SA holds a BProc (cum laude) and LLB de- She was first appointed to the South Limited. She has 27 years’ experience in gree from the University of Pretoria. African Board for Sheriffs in 2006 and the legal field and was appointed as the for a second term in 2009, when she sheriff for Randburg South West since 1 Professor Lovell Fernandez served as deputy chairperson of the December 2012. Professor Fernandez is a professor in the board. She was appointed in 2012 as the Department of Criminal Justice at the chairperson of the board. Ignatius Klynsmith University of the Western Cape (UWC). Mr Klynsmith is a practising attorney at He holds Bachelor of Arts and Bachelor Petro Roodt Van Velden – Duffey Attorneys and was of Laws degrees from UWC, a Masters in Ms Roodt is a member of the outgoing appointed as the Sheriff for the Rusten- Comparative Law from New York Univer- board and was nominated by the South burg High Court Office since 1 July 1981. sity and a Doctorate in Philosophy (Law) African Sheriff Society. She has been in- He has over 30 years’ experience in the from the University of Witwatersrand. volved with the sheriffs’ profession since sheriff profession. Mr Klynsmith was an He is currently the UWC director of the 1992. Ms Roodt was previously the office acting judge in the Gauteng North High LLM programme on Transitional Crimi- manager and deputy sheriff in the office Court during 1996, as well as a Member nal Justice and Crime Prevention. During of the sheriff for Vereeniging. Thereaf- of the Goldstone Commission that inves- 1996 he was the legal adviser to the then ter, she was appointed as the sheriff for tigated the prevention of violence during Minister of Justice, Dullah Omar. Sasolburg during July 2005 and is cur- the 1994 election.

DE REBUS – APRIL 2015 - 8 - Advocate Hisamodien Public Administration. He was admitted ment said are vital for improving service as an advocate in the Western Cape High delivery and renewing public faith in the Mohamed Court in 1995. profession. Top of the new board’s priorities is the Advocate Mohamed is the Regional Head Minister Masutha commended the out- publication of the new Sheriffs Guide: of the Department of Justice and Con- going board, whose term expired on 28 Practice and Procedure, which is intend- February, for the significant contribution stitutional Development in the Western ed to lay the foundation for a uniform that it has made in the professionalisa- Cape. He represents the Minister on approach to service delivery in the sher- the current Board for the South African tion and transformation of the sheriff’s iff’s industry. Board for Sheriffs and he is also respon- industry. Notable achievements include • See 2014 (May) DR 11. sible for the sheriffs’ administration at the implementation of the new sheriff’s the Justice Department. He holds BIur Pledge and Code of Conduct applicable Nomfundo Manyathi-Jele and LLB degrees and has a Master’s in to the industry, which the Justice Depart- [email protected]

LSNP to have elections for councillors

he Law Society of the Northern ‘47.4 In the event of a vacancy arising Provinces (LSNP) has rescinded in the Council on the statutory compo- the suspension of r 30.2 and 31 nent of the Society, the position shall be Tto 43, which relate to the elec- filled firstly with reference to the election of councillors. This decision came tion results of unsuccessful candidates about after the LSNP convened a special during the election immediately preced- meeting to deal with a number of pro- ing such vacancy who are then still avail- posed resolutions. The meeting was held able and eligible in descending order of on 26 February in Sandton. votes obtained. In the absence of such Johannesburg attorney, Anthony Mil- candidates, the statutory component of lar, brought three motions for adoption the Council, sitting as a caucus, shall fill before members of the LSNP. such vacancy in consultation with any active attorneys association in the area, Motion one in the manner determined by it’. The first motion was a motion to rescind To motivate this motion Mr Millar said the suspension of rs 30.2 and 31 to 43 that the current rule provides that the and that the LSNP strictly adhere to the Pretoria attorney, Anthony Millar, council may select replacements. He said rules relating to the elections of council- brought three motions before that this was undemocratic as it ignores lors and in order to give effect to this members of the Law Society of the the will of the LSNP members. Mr Millar motion, that the following consequential Northern Provinces recently relat- said that he saw this way as the most ap- amendments are made to the rules – ing to the election of councillors. propriate one to deal with this matter. (a)(i) The deletion of the post-amble to r 20.1.6.2 being the sentence, ‘the effect Motion three of Rules 31 up to and including Rule 42 With the expression: ‘[B]y no later than That the following rules be amended as is suspended indefinitely’; 30 May 2015, in the third year following stated below: such general election and thereafter in (ii) the deletion of the reference to the (i) Rule 30A.1.1 by replacing the word phrase ‘Rule 30.1’ wherever it appears in every third year.’ ‘three’ with the word ‘five’. rs 31 to 42 (both inclusive) and r 47.3 Mr Millar motivated this motion by (ii) Rule 30A.1.2 by replacing the word and its replacement with a reference to saying that the statutory constituent of ‘two’ with the word ‘three’. ‘Rule 30A.1’; and the LSNP, unlike the Black Lawyers As- (iii) Rule 30A.1.4 by replacing the word (iii) the amendment of the word ‘four- sociation (BLA) the National Association ‘two’ with the word ‘one’. teen’ wherever it appears in rs 31 to 42 of Democratic Lawyers (NADEL) con- And in order to give effect to this mo- (both inclusive) to ‘twenty-four’. stituents, has had approximately one tion, as well as the motions 3(i) and 3(ii), (b) That the present r 30.2 be amended election in the last 20 years. He added that the following consequential amend- to substitute the expression – ‘[An elec- that this was not democratic and did not ments are made to the rules: tion shall be held in the manner in these allow new ideas and a more energetic 3.1 by amending the word ‘eight’ in rules prescribed] in the year first follow- approach by the council to its affairs. r 33.5.1 to ‘nine’. ing upon the year in which these rules ‘It cannot be said that in the absence of 3.2 by amending the word ‘six’ in r 33.5.1 are promulgated and in every third year regular elections, that the views of the to ‘seven’. after the year in which the first such council represent those of the members’, 3.3 by amending the words ‘two names’ election is held provided however that he said. in r 33.5.1 to ‘one name’. such elections relate only to the 12 coun- 3.4 by amending the word ‘eight’ in cil members appointed in terms of Rules Motion two r 33.5.7 to ‘nine’. 30A.1.1 to 30A1.4 (both inclusive) spe- That the LSNP – 3.5 by amending the word ‘six’ in cifically excluding the Black Lawyers As- (i) removes the indefinite suspension r 33.5.7 to ‘seven’. sociation and the National Association of of the existing r 47.3; and 3.6 by amending the word ‘two’ in Democratic Lawyers council members’. (ii) adopts the following new r 47.4: r 33.5.7 to ‘one’.

DE REBUS – APRIL 2015 - 9 - 3.7 by amending the word ‘eight’ in Society of the Free State and the Cape r 38.1 to ‘nine’. Law Society all have elections. The LSNP 3.8 by amending the word ‘two’ in r 38.2 is the only law society without. Council to ‘one’. members are supposed to represent the 3.9 by amending the word ‘eight’ in aspirations and will of the people and r 38.4 to ‘nine’. LSNP members are being aggrieved by 3.10 by amending the word ‘four’ in not being heard,’ he said. r 38.4 to ‘three’. One member argued that the reason To motivate this motion, Mr Millar said why elections were suspended was so that the biggest number of non-BLA and that the current council members stay non-NADEL members forming the statu- in power to negotiate the Legal Practice tory component of the LSNP practice in Act 28 of 2014 (LPA). He argued that the Johannesburg and Pretoria. He said that LPA had now been passed so the basis of in terms of the current dispensation, the council members staying as is, has councillors practicing in these areas ef- fallen away. This was met with a counter fectively represent approximately 1 000 argument as another member said that the LPA negotiations are still ongoing attorneys each, whereas statutory com- Law Society of the Northern and that this warranted that the council ponent attorneys practicing in the three Provinces (LSNP) president, stays the same. smaller provinces represent approxi- Strike Madiba, at a special One of the younger attorneys urged mately five attorneys each. ‘This skew- meeting of the LSNP held in members not to make an emotional de- ing of law society representation is not Sandton recently where members cision but to think it through. He said democratic and accordingly we propose voted to rescind the suspension of that if members are allowed to vote for that the figures must be adapted to more rules 30 (2) and 31 to 43 which re- all council members including the statu- accurately reflect the demographics of late to the election of councillors. the profession and to allow those areas, tory members, there would be no black with a far greater concentration of attor- attorneys on council. ‘There are 12 711 neys, more representation and input in least half of the members who are cur- attorneys of which 8 000 and something the affairs of the LSNP,’ he said. rently practicing were admitted after are white. The white votes will overpow- Although most of the members were that date. This means that at least 50% er the vote for black council members,’ for the motions, Mr Millar was faced of the members have never had the privi- he said. with some strong opposition. Some lege of participating in a vote ... It is a Another member said that this coun- members said that the motion could not shame that none of them can claim to cil took a decision 20 years ago to sus- go through because one could not just represent or to have been chosen to rep- pend the rules. So, this council can take change the rules of the law society while resent the members who are practicing a decision to uplift that suspension. ‘We others argued that bringing back elec- today,’ he said. are not asking for anything that is not tions was going against the rules of the One member said that the decision to provided for in the rules or that has not LSNP. One of the council members said suspend elections was never meant to be happened before or has not been accom- that members had no right to just sum- a position for life. He said that it is time modated before,’ he said. mon up members and demand for rules to move on, the law changes, practice The final results were as follows: to be changed. changes. ‘The statutory members must The president of the LSNP, Strike Madi- have a voice and must elect those people In Against ba said that council cannot just shun its that they feel will best represent them, it favour members. He said that council had a duty is called democracy. It has been accom- Motion one 311 25 to comply and listen to its members. modated before, in 2003 elections took Mr Millar said that BLA and NADEL place, a vote against elections shames Motion two 307 14 choose their representatives on a regular us,’ he said. Motion three 297 23 basis, and questioned why other mem- BLA president, Busani Mabunda said bers could not do so as well. ‘What about that LSNP members are being denied a those members who joined the profes- right to voice out their views. He said sion after this agreement was made? that there is currently a lack of internal Nomfundo Manyathi-Jele They did not agree to this,’ he said. democracy. ‘The decision to do away [email protected] ‘The composition of the profession has with elections was for political reasons. changed significantly since 1994 and at The KwaZulu-Natal Law Society, Law q

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DE REBUS – APRIL 2015 - 10 - NEWS

he Justice Department officially launched the court-annexed Court-annexed mediation mediation in Mahikeng on 16 February. The mediation service pro- officially launched Tvides an alternative dispute resolution mechanism that allows for negotiated settlement between parties and alleviates litigation costs. When there is a dispute between parties, a mediator will facilitate Further names will be added as the ad- the following are frequently asked ques- discussions between them, assist in iden- visory committee approves new applications among others: tions. Applications from mediators in tifying issues and explore areas of com- Will the mediator be a lawyer? promise at a cheaper and fixed tariff. other provinces will be considered at a Not necessarily. Many mediators are law- At the launch, Justice Minister Michael later stage, as the project is rolled out. yers, which has the advantage that both Masutha explained that during the pilot Court-annexed mediation parties can be informed what the law is phase of the programme, the focus will relative to their dispute. Often mediators mainly be on civil and family disputes. step by step procedure are experts from other professions, for Over time, the Justice Department will Go to the office of the mediation clerk instance engineers are often mediators develop a legislative framework for the at the court. Explain your problem to 1 in building construction disputes. Fam- effective use of alternative dispute reso- the clerk. ily disputes are often mediated by social lution for the resolution of certain crimi- If mediation is possible, the clerk will workers or psychologists. nal cases where appropriate. 2 assist you to fill in an application During the pilot phase, mediation will form. Will the mediator tell the parties be voluntary and the focus will be on dis- The clerk will invite you and the other who is right and who is wrong? putes that fall under the jurisdiction of party to come to a meeting to discuss 3 No, a mediator does not judge the par- the district and regional courts, which are an agreement to mediate. At this meet- ties or tell them what the solution to up to R 200 000 and R 400 000 respec- ing, the clerk will explain mediation. The their dispute is. It is for them to find a tively. However, the Magistrates’ Courts parties sign a written agreement to me- solution that meets their needs and in- Act 32 of 1944 permits that parties may diate. The clerk will assist the parties to terests. The task of the mediator is to as- consent to a higher jurisdiction beyond choose a mediator. The date and time of sist them to do this. The mediator will the prescribed limits. ‘It is our hope that mediation will be agreed and fees paid help them to identify the real issues and the pilot will culminate into a more rig- according to a fixed tariff and shared explore different options for resolving id process whereby mediation could be equally by both parties. those issues. The mediator assists them, compulsory and may extend to the dis- The mediator and parties meet on a using skills acquired through training putes that fall within the jurisdiction of suitable date for a mediation session. 4 and experience, to diffuse conflict and the High Courts,’ Minister Masutha said. The mediator explains the mediation explore options for settlement. If the ‘The overly regulated civil justice sys- rules and procedures. Each party tells parties reach an agreement the media- tem coupled with the challenges fac- their story. The mediator may ask ques- tor will assist them to draft a settlement ing the case flow management system tions. The mediator suggests solutions. agreement. The settlement agreement is contributes to the clogging of the court Parties discuss what the best solution is. enforceable in law as a contract. It can system. The average period for the finali- An agreement is reached by the par- be given additional strength by having sation of an opposed civil matter is two ties. The mediator helps parties to 5 it made an order of court, if the parties and a half years. In respect of Mahikeng write an agreement. The agreement may agree to this. If the parties are unable to districts it implies that the courts will be made an order of court if the parties settle their dispute through mediation only be able to process an average of 650 wish to do so. then they may still resort to litigation of the 2 576 civil and family law disputes According to Government Gazette (GN and adjudication. registered between April and December 854 GG38163/31-10-2014), the media- 2014, thus leaving a balance of over 1 900 tor’s tariff of fees is as follows: Can mediation be used where of the case backlog. The situation is dire Perusal of documents, per page R 22 litigation has already commenced? in courts such as Johannesburg where on 1 for a level 1 mediator and R 22 for average 60 000 cases are registered on level 2. Yes, mediation can take place prior to the court rolls every year,’ said Minister For every half hour or part thereof litigation being commenced or during Masutha. 2 spent in mediation with parties or litigation, at any time before a judgment Minister Masutha said that the court- litigants to the dispute: Or any necessary has been given. The parties can agree to annexed mediation will also enable gov- witness R 225 and R 300 respectively. refer to mediation or one party can re- ernment to cut its ‘huge litigation bill Preparation of a report in terms of quest the clerk or registrar of the court by diverting claims against the state to 3 r 80(2), per hour R 450 and R 600. to convene a meeting for the purpose of mediation.’ He added that he will soon Travelling from usual place of busi- determining whether the matter should submit to Cabinet, a policy framework to 4 ness to the mediation venue, per kilo- be submitted to mediation. The court- facilitate the diversion of claims against metre R 3 for both levels. annexed mediation rules also provide the state to mediation across all spheres (a) The fee in item (2) above for a sin- that during the hearing of a matter a of government. gle mediation shall be subject to a maxi- judicial officer can enquire whether the Mediators can be chosen from a panel mum fee per day of: matter should be referred to mediation of accredited mediators appointed by (i) R 4 500 for a level 1 mediator; and and give the parties an opportunity to Minister Masutha. As of 6 March 2015, (ii) R 6 000 for a level 2 mediator. consider this in consultation with the there was a total of 233 mediators. The (b) The fee in item (3) above shall be clerk or registrar. names of the accredited mediators across subject to a maximum fee of: various sectors, including the level of ac- (i) R 1 350 for a level 1 mediator; and How long does the process of creditation is available at www.justice. (ii) R 1 800 for a level 2 mediator. mediation take? gov.za/mediation/MediatorsList.pdf. According to the Justice Department, Simple disputes can often be resolved

DE REBUS – APRIL 2015 - 11 - SADC NEWS within a few days. More complex disputes through the Sheriff of the court in the court-annexed mediation Project Office may take a few weeks. same way as any order of a civil court. at – What happens in an event where If it has not been made an order of the • Tel: (012) 315 4615/6 court, then it is enforceable in the law in • E-mail: [email protected] mediation has resulted in a positive the same way as any other legal binding • See 24 and 28. outcome, but one of the parties later agreement. fails to comply with their agreement? Mediation is voluntary and a party Nomfundo Manyathi-Jele If the agreement has been made an or- may withdraw at any stage. [email protected] der of the court then it can be enforced For more information contact the q Combatting corruption in the SADC

illicit financial flows. A point was made ures that will protect individuals, who The Southern Africa Development during the workshop that lawyers have in good faith, report acts of corruption. Community (SADC) is made up the ‘inclination to want to change the Legislation in Mozambique, Namibia and of Angola, Botswana, Democratic law’, however, at present there are many Swaziland fails to protect whistle blow- Republic of the Congo, Lesotho, treaties and mechanisms available and ers, however, other jurisdictions like Madagascar, Malawi, Mauritius, there is the possibility to work within South Africa guarantee the protection of Namibia, Mozambique, Seychelles, the framework, which already exists. It is whistle blowers through witness protec- South Africa, Swaziland, Tanzania, the duty of lawyers, to familiarise them- tion programmes. Zambia and Zimbabwe. selves with these treaties and mecha- State parties are also required to set nisms and hold their leaders and institu- up anti-corruption institutions for im- The SADC Lawyers’ Association is tions accountable. plementing mechanisms to prevent, de- a regional voluntary lawyers’ asso- The Protocol was adopted by the SADC tect and eradicate corruption. All states ciation tasked with advancing and in 2001 amidst concerns of the adverse examined have a body tasked to investi- promoting human rights, the rule and destabilising effects of corruption gate acts of corruption, in fact most have of law, democracy and good gov- throughout the world on the culture, eco- multiple bodies tasked to tackle corrup- ernance in the SADC region and nomic, social and political foundations tion. This has created problems with rep- beyond. For more information on of society. The Protocol emphasised that lication of functions and conflict among how to become an individual mem- member states have the responsibility to the different institutions. For example ber and get involved in our crucial hold corrupt persons in the public and in South Africa, the Special Investigating work, please visit www.sadcla.org private sectors accountable and to take Unit was of the view that there was a lack appropriate actions against those who of communication between the different commit acts of corruption. The Proto- bodies tasked to tackle corruption. Fur- he SADC Lawyers’ Association col also hopes to promote cooperation ther problems with the anti-corruption hosted a workshop late last among states in fighting corruption and bodies include a lack of independence year to highlight and discuss greater regional integration. The Protocol in carrying out their functions. Notable research into the implemen- has been ratified by 13 member states concerns were those anti-corruption in- tation of the SADC Protocol and the only two states not to have rati- stitutions that function within the min- Tagainst corruption by member states. fied the Protocol are Madagascar and the istry of the presidency as is the case in Participants included lawyers from all Seychelles. However, ratification has not Botswana. Political interference is also a over southern Africa and representa- necessarily resulted in domestication problem especially in the appointment tives from trade unions and non-govern- and implementation of the Protocol. process of the head of the anti-corrup- mental organisations. Corruption was One of the purposes of the Protocol tion institution as in most jurisdictions described as a ‘chronic disease’ in the is the prevention, detection and pros- the head is a President appointee. Other region by one of the participants and no ecution of corruption in the public and issues include the lack of capacity for in- country had been spared its negative im- private sector. This needs to be done stitutions to carry out the necessary in- pact, with corruption causing problems through legislative and other measures vestigations and day-to-day operations. such as denying school children text in which acts of corruption are crimi- This included problems such as a lack books to presidents benefitting from nalised, investigated and prosecuted, of funding and technical expertise as in- multi-million dollar business deals. The as well as setting out the mandate and stitutions were understaffed and poorly problem of corruption persists despite authority of anti-corruption institutions. trained. Most of the anti-corruption in- numerous initiatives at the internation- Of the 13 member states examined, all of stitutions do not have the prosecutorial al, regional and domestic level to combat them, to a large degree, have legislation authority to pursue corruption matters the problem. The purpose of the study that defines and criminalises acts of cor- and the decision to prosecute is usually was to determine the state of implemen- ruption, calls for the investigation and left with the Director of Public Prosecu- tation of compliance with the Protocol prosecution of corruption in their juris- tions (DPP). The concern with relying on including the implementation of legis- dictions. However, Mozambique fails to the discretion of the DPP is that its in- lation and policy at the domestic level, address issues such as embezzlement, dependence is often questionable as the efficacy of national anti-corruption money laundering and illicit enrichment. he or she is usually appointed by the institutions and the effectiveness of the The Protocol also provides that each president. Many people in the SADC re- Protocol in curbing challenges such as state party undertakes to adopt meas- gion are of the view that there has not

DE REBUS – APRIL 2015 - 12 - been enough effort in the prosecution of all sectors and development and harare present in each of the jurisdictions those in office or of the influential and monisation of anti-corruption policies examined is the lack of true political powerful and that efforts have usually and domestic legislation of the state will among the leadership in all SADC only resulted in the prosecution of ‘small parties. One of the bodies tasked with countries to address the problems that fish’. These factors all point to a lack of strengthening and enhancing co-opera- exist. The preamble of the Protocol, it political will by state members to effec- tion among states is the Southern Afri- explicitly recognises that demonstra- tively and efficiently combat corruption. can Forum against Corruption (SAFAC). ble ‘political will and leadership are es- The Protocol also requires states to Although all of the state members are sential ingredients to wage an effective adopt mechanisms that encourage wid- party to SAFAC, the difficulty in achiev- war against the scourge of corruption’. er sectors of society such as the media ing cooperation among state parties is However, the responsibility does not lie and civil society to participate in pre- the inability of the members to develop solely at the feet of our leadership; the venting corruption. Most member states their internal capacity and therefore be Protocol expressly recognises the im- had some sort of mechanism to allow in a position to co-operate with states on portance of the public getting involved for public participation, for example, issues such as extradition, judicial co- in the fight against corruption. It is with in Tanzania there is active engagement operation and the harmonising of poli- this responsibility in mind that the par- by the state with local communities, re- cies and domestic legislation. A further ticipants wish to further get involved ligious leaders and musicians through problem that is hampering cooperation in tackling corruption and work in col- activities such as public seminars, talk among member states is the creation laboration with other organisations from shows, exhibitions and anti-corruption of tax havens in the SADC as we find in across the region. It is the responsibility club activities. Other activities include Mauritius. This has encouraged illicit fi- of every individual in the SADC to avoid public awareness through the inclusion nancial flows from major economies in engaging in corrupt practices and also to of the understanding and combatting of Europe, Asia and Africa and is denying report corruption to the authorities and corruption in the school curriculum that States to essential tax revenue. However, even the media. Lawyers play a special can be found in Swaziland and Zambia. the SADC Protocol is silent on the action role in this, as they have the knowledge However, in other countries such as An- to be taken in this regard. and skills to raise public awareness on gola and the Democratic Republic of the The study pointed out that generally, issues of corruption and actively hold Congo, there is a clampdown by the state there is a legal and institutional frame- the leadership of the SADC accountable. on any anti-corruption activities by the work to combat corruption as well as public such as detaining and harassing mechanisms for the public to become journalists. involved in anti-corruption activities. Is- Chantelle de Sousa is the Lastly, states agreed to promote and sues remain such as the independence Programmes Officer at the SADCLA [email protected] facilitate cooperation among state par- of anti-corruption institutions and their ties in support of the prevention, detec- financial and resource capacity. How- tion and prosecution of corruption in ever, underpinning the challenges that q

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DE REBUS – APRIL 2015 - 13 - LSSA NEWS LSSA and IEC celebrate their partnership for the 2016 municipal elections

hank you very much own this process as ours. The number of often bring an array of complex legal for this opportunity election observer missions from outside and operational issues that are not to to join you in the the borders of the continent has reduced be found in the elections of the National road to entrenching dramatically. We, therefore, as Africans Assembly and provincial legislatures. democracy in our have to deal with our own problems and ‘Such complexity partly arises due to the country,’ then Law have to act with integrity.’ number of different elections held con- Society of South Af- Referring to the LSSA’s report on currently. There are over 4 000 differ- ‘Trica (LSSA) Co-chairperson, Max Boqwa- its observer mission, he noted that it ent elections conducted during munici- na, said to Electoral Commission digni- had become clear that a large number pal elections compared to ten different taries at a gala dinner hosted in Pretoria of young people were not enthusiastic elections during national and provin- early in February. The dinner was held about voting: ‘It is important that we, as cial elections,’ he explained. He added: by the Independent Electoral Commis- a society, participate in all the efforts to ‘Furthermore, ward elections imply a sion (IEC) to celebrate the beginning of redress this state of affairs. It is not a cli- smaller geographic constituency elec- the LSSA’s electoral project to train ob- ché to say young people are the future of tion whereas the smallest constituency servers for the 2016 municipal elections. our country. If indeed that is the case, it is a province in a national and provincial Mr Boqwana referred to the electoral would be suicidal to ignore them in voter election. Ward elections bring with them process as ‘the only true exercise where education projects.’ a different and unique electoral dynam- rich and poor find equality, young and Expressing the IEC’s delight at the ic, which in certain circumstances brings old find common space, and the illiter- partnership with the LSSA, Acting Chief about undesired proclivities on the part ate and those that are learned have the Executive Officer of the IEC, Sy Mamabo- of those desperate to win.’ ability to participate equally … it is an lo, said he hoped that other professions Mr Boqwana said that the LSSA had occasion to put a badge of dignity on all in South Africa would follow the exam- demonstrated its commitment by intro- South Africans; a clear demonstration of ple set by the attorneys’ profession. ducing electoral democracy as a subject denouncing our recent past of disenfran- He added: ‘It is our view that legal ex- for candidate attorneys at its School for chisement.’ Mr Boqwana added: ‘We have pertise around electoral law is not at the Legal Practice. ‘This will assist not only the resources, capacity and intellect to level where it should be. We, therefore, to engender interest in participatory render a hand in this to ensure that our believe that this partnership must plant democracy, but to create a reservoir of country moves forward in the correct di- seeds of interest in this branch of con- electoral observers, mediators, arbi- rection with integrity and credibility.’ stitutional law. The participants in this trators in electoral disputes and a new The LSSA’s 2016 municipal election year’s training programme must, in the breed of practitioners in this area of law,’ monitoring initiative follows the suc- future, represent an array of stakehold- he noted. cessful monitoring of the 2014 national ers to vindicate their rights and interests and provincial elections by attorneys through the judicial forums of our coun- and candidate attorneys as part of the try.’ LSSA’s observer team (see 2014 (June) Mr Mamabolo said our country was in Barbara Whittle, communication man- DR 12 and 2014 (July) DR 15). Mr Bo- the process of preparing for general elec- ager, Law Society of South Africa, qwana explained: ‘It is important that as tions of municipal councils next year. He [email protected] South Africans and Africans we begin to noted that municipal council elections

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DE REBUS – APRIL 2015 - 14 - Electoral democracy and voter education: New subject introduced to LEAD curriculum

n May 2014 the Law Society of and the respect for the rule of law, but practical legal education and continued South Africa (LSSA) successfully their interest in the process is also of legal development in the legal profes- launched its first election observer paramount importance. sion. The current reach is an estimated mission, deploying approximately In order to promote interest and par- 4 900 candidates within the specific 490 attorneys across South Africa ticipation in the voting process the LSSA target demographic and these numbers to observe elections at their local would like to place more emphasis on are increasing annually. Approximately Ivoting stations. voter education for this specific age de- 5 000 attorneys also attend LEAD semi- On drafting its final observer report to mographic. Therefore, the LSSA and Le- nars each year and a voter education the Independent Electoral Commission gal Education and Development (LEAD) course can later be added to the seminar (IEC), the LSSA realised that only an ap- endeavoured to form a partnership with department as well. proximate 5,6 million voters between the the IEC to support this initiative. The tar- The goal is to reach as many young ages of 20 and 29 registered to vote (‘IEC get demographic is young legal profes- legal professionals through a respected Registration Statistics as at 10 March sionals between the ages of 20 and 29. primary legal education provider. This 2015’ www.elections.org.za/content/ It is against this backdrop that the will promote a young legal society with Voters-Roll/Registration-statistics/, ac- LSSA and LEAD, in proud partnership proper knowledge of one of the core cessed 10-3-2015) for the 2014 national with the IEC, launches an education initi- human rights on which a democracy is elections, even though there were an es- ative aimed at young law graduates. This built: The right to vote. timated 9,8 million eligible voters in this partnership is cemented on the premise Once the ground-work is done and the age group (‘Mid-year population esti- that these individuals, as future legal initiative has been properly implement- mates’ Statistics South Africa 31 July 2014 professionals or young legal profession- ed LEAD, in partnership with the IEC, at 9 available at http://beta2.statssa.gov. als, will be tasked with upholding the de- aims to focus on expanding this project. za/publications/P0302/P03022014.pdf, mocracy and respecting the rule of law. In order to ensure quality education accessed 10-3-2015). Therefore, only Through provision of voter education to the new LEAD subject will currently only 57,5% of eligible voters between the ages this target demographic these voters will be provided by school directors and of 20 and 29 registered to vote (whether be enabled to spread information and properly qualified legal practitioners they actually voted is another matter knowledge to others. with extensive practical experience who entirely, and therefore the number of The IEC trained all LEAD School Direc- have been properly trained in electoral young voters between the ages of 20 and tors during an intensive train-the-train- democracy and voter education. This 29 that actually voted may be even less ers workshop on 10 and 11 February will ensure consistent quality education than the estimated 5,6 million that regis- 2015. New material for this subject was and the consistent transfer of valuable tered to vote). Except for the 18 to 19 age drafted by LEAD, in partnership with the knowledge. group, this age group had the lowest rate IEC, and the new compulsory subject to LEAD believes that the voter education of registration in relation to the amount the LEAD curriculum: Electoral democ- initiative can be of great value especially of eligible voters. racy and voter education, will be imple- in providing quality assistance to the IEC This made it clear to the LSSA that mented at LEAD School across South in regard to voter education. Further- there is a marked lack of interest and Africa from March 2015. This will be a more, it will promote respect for the rule voter education for voters between 20 permanent addition to the LEAD learn- of law and our democracy while provid- and 29. This age group represents the ing activities and will continue to run ing a clear understanding of the IEC’s youth entering the workforce for the in the lead up to the 2016 local govern- role as a Chapter 9 institution. first time; attending higher education ment elections and the 2019 national LEAD is proud to state that it has institutions; and occupying junior posi- elections. formed a solid working partnership with tions with the intent of furthering their There are currently nine residential the IEC that will be beneficial to young professional careers. Schools for Legal Practice across South voters in South Africa. Therefore, they have a significant in- Africa and one distance school run in terest in the social, democratic and eco- association with Unisa. Therefore, there Jeanne-Mari Retief is a facilitator at Legal nomic development of South Africa. Not is significant national reach in this par- Education and Development (LEAD) only are their votes crucial to our society ticular target demographic as LEAD and [email protected] founded on the principles of democracy the LSSA are the primary providers of

Significant leadership: A programme for senior women lawyers

lthough an increasing number The Law Society of South Africa (LSSA) equipping, and empowering female at- of women graduate and com- supports growth in the number of torneys to understand certain key con- ply with the School for Legal women heading firm management and cepts to demonstrating significant lead- APractice programme, the pro- women in the judiciary. Therefore, Le- ership in the legal profession. fession does not retain a sufficient num- gal Education and Development (LEAD) This is an intensive programme that ber of women in leadership positions, or (in association with the Nelson Mandela goes further than a mere seminar or women involved in education or other Metropolitan University), launched a pi- one-day course. The women participat- initiatives of the profession. lot project in November 2014 aimed at ing in the programme must demonstrate

DE REBUS – APRIL 2015 - 15 - LSSA NEWS potential for leadership and be commit- sion and further assignments between and building a support structure for ted to participating in all facets of this sessions. These assignments add value themselves, the women also had the op- programme. After an initial application to the course and assist in growing their portunity to network and cement new process that includes a letter of moti- leadership skills and potential. business relationships. vation, the women are accepted to this The first assignment to be complet- Women travelled from across South inter-active programme. ed is additional reading on leadership Africa to attend the programme and con- The programme is currently aimed styles, followed by a Belbin Self-Per- firmed that the programme did not dis- at senior women lawyers (with at least ception Inventory. Belbin is a means of appoint. Here are some comments from eight years’ practical experience) who measuring the candidate’s preferred the women who attended: are interested in growing their leader- behaviour when working in a team and Krishni Naidu said ‘Today I walked ship skills. However, due to the lack of is designed to pinpoint the candidate’s into my office as an inspired, empow- female mentorship in the profession, unique leadership style. It further assists ered leader with a totally different ap- and recognising the needs of young fe- the candidate in understanding the dif- proach and it felt good!’ male attorneys, the LSSA is consider- ferent leadership styles and how to com- ‘I have learnt a lot and most impor- ing expanding this initiative to include municate, and work with different types tantly I feel not only empowered, but young women lawyers. of leaders. also inspired to work even harder to- The programme deals with the follow- The women are also required to com- wards my goals. I look forward to using ing topics: plete an emotional intelligence question- the tools I gained during the past three • understanding ‘branding’ and how to naire. The outcome is discussed during days,’ said Daphne Mahosi. develop your own brand; the first session and lessons learnt are Khanyisa Mogale said ‘I am convinced carried over to the follow-up session. that we are destined for greater things • leadership styles and how to apply Between sessions the women are en- in our profession. This is only the begin- your own style; couraged to apply what they have learnt ning.’ • managing professional power, relation- and to reflect on: There will be a follow up session with ships and politics; • where they improved; the women in six months to track their • understanding personal mastery; • where they feel there is further room progress and give support where neces- • how to think and act strategically; for improvement; sary. • powerful legal writing; • challenges they faced and how they • leadership presence; and handled them; and • The LSSA invites all women law- • the challenges/obstacles for women • goals for continuing on this path in fu- yers interested in attending this leaders and how to overcome these. ture. programme to contact Jeanne-Mari The programme runs over two ses- The second session of this programme Retief at [email protected] sions of three days each and experi- concluded on 5 February 2015. A gala enced, dynamic presenters in their areas dinner was held, on request from the of specialisation have been called on to women, to celebrate the launch of the Jeanne-Mari Retief is a facilitator at Legal facilitate the discussions. programme and the significant impact it Education and Development (LEAD) The women are required to submit will have on the legal profession. [email protected] various assignments before the first ses- Apart from learning valuable skills

2015 examination dates THE SA ATTORNEYS’ JOURNAL digital

De Rebus is the South African attorneys’ journal. It is Admission examination published monthly for the benefit of practising attorneys THE SA ATTORNEYS’ JOURNAL and candidate attorneys. De Rebus Digital is an exact The admission examination dates Gimme the money honeyMARCH 2015 replica of the print version and is available to everyone the fairness of spousal maintenance for 2015 are: after divorce with access to a computer, laptop or tablet. • 18 August • 19 August Can you afford not to have this valuable information at your fingertips?

Conveyancing Subscribe to this free service by e-mailing your hate speech is a crime equality Court rules in favour examination name and e-mail address to: of domestic worker While the conveyancing examina- [email protected] tion dates are: • 13 May THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL • 9 September JANUARY/FEBRUARY 2015 Courtroom of the futureOCTOBER – 2014 NOVEMBER 2014 DECEMBER 2014 ‘Paws’ b virtual EforE signing on thE Courts, e-C body corporates and the keeping of ourtrooms, videoC dott and online dispute resolution Ed linE onferenC WHO IS IN CHARGE? pets in sectional titles ing POWER STRUGGLE BETWEEN THE DEVELOPER AND BODY CORPORATE Knock out! Stand your ground Notarial examination Everyday words can be the or self-defence? death of a trade mark Deducting pension amounts from Personal data on Rest in peace: The occupiers And the notarial examination dates salaries and failing to pay – the internet – right to bury on farmland employers beware Can PoPi P are: roteCt you? Report: Transformation Does s 14 of the CPA of the legal create an unreasonable • 10 June profession disadvantage to the owner?

• 21 October. Calculating legal costs: Changing the way we charge The link between the Legal Practice Bill and access to justice Navigating the Consumer Protection Act q Does PAJA still form part of the legislative puzzle?

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FCB\10016856/JB/E PEOPLE & PRACTICES People and practices Compiled by Shireen Mahomed Prinsloo Tindle and Andropoulos Inc has appointed Howard Pelkowitz Phukubje Pierce Masithela Attorneys Greyvensteins Attorneys in Port Eliza- as a director. in Johannesburg has three new ap- beth has three new appointments. pointments and one promotion. Manyani Maseko has Tiaan Labuschagne been promoted to a has been appointed partner. She special- as a director in the Cox Yeats in Durban has two new ap- ises in information, litigation depart- pointments. communication ment. Thys Scheepers has and technology law, been appointed as a intellectual property partner and heads law, media law and up the insolvency general commercial law team. He spe- Rohan Greyvenstein law. cialises in insolven- Jnr has been ap- cy, business rescue pointed as a director Diana Schwarz has and debt recovery. been appointed as a in the conveyancing senior associate. She department. specialises in labour Philip Thompson law, litigation and has been appointed commercial law. as an associate in the construction, Cor van Deventer engineering and has been appointed infrastructure law Mathando Likhanya as a director in department. He spe- has been appointed the conveyancing cialises in construc- as an associate. department. tion litigation and She specialises in alternative dispute commercial law, resolution. technology, media and telecommunica- tions law. Lovius Block At- Fourie Stott in Dur- torneys in Bloemfon- ban has appointed Bronwyn Ross has tein has appointed Chris Salmon as been appointed as Duncan Murray a senior associ- an associate. She as a partner. He ate. He specialises specialises in com- specialises in high in sectional title mercial litigation, and magistrates litigation, property intellectual prop- court litigation and law, debt collection, erty and technology, supreme court of evictions, com- media and telecom- appeals. mercial and general munications law. litigation.

Cliffe Dekker Hofmeyr has appointed 11 new senior associates. Johannesburg: From left – Neil Comte, Lauren Salt, Yusuf Dockrat, Tamarin Tosen, Mat- thew Ward, Mukelo Ngobese.

Cape Town: From left – Nkcubeko Mbambisa, Inge Schneider, Pride Jani, Nazeera Mia, Ashley Pillay.

DE REBUS – APRIL 2015 - 18 - PRACTICE NOTE

Savage Jooste & Adam Inc in Pretoria has five new appoint- He specialises in insurance and personal injury litigation. ments. Florette Storm has been appointed as an associate. She Natalie Marshall has been appointed as a director. She specialises in general and correspondent litigation, admin- specialises in general litigation, medical negligence, gen- istrative, labour and commercial law. eral liability, insurance law and family law. Magdel van Biljon has been appointed as an associate. Candice Louw has been appointed as an associate. She spe- She specialises in commercial and corporate law and litiga- cialises in personal injury litigation. tion trusts, aviation law and notarial services. Dian van der Walt has been appointed as an associate. From left: Natalie Marshall, Candice Louw, Dian van der Walt, Florette Storm and Magdel van Biljon.

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

By Is using your wearable technology Russel Luck while driving a traffic offence?

oogle Glass (a type of wear- Google Glass is most probably a ‘com- be in ‘control’ of her vehicle in terms able technology with an op- munication device’ because it has mo- of the National Road Traffic Act 308 of tical head-mounted display. bile phone capabilities. The fact that it 1996. In general, South African traffic Google Glass displays infor- is voice operated and allows a driver to services do not seem to penalise female mation in a smartphone-like have both hands on the steering wheel drivers for this conduct even though Ghands-free format (http://en.wikipedia. and their eyes on the road means that they are entitled to. org/wiki/Google_Glass, accessed 10- it could fall within the definition of Traffic laws and regulations vary from 3-2015)) and Smart Watches (wearable ‘headgear’. If so, the driver would be al- place-to-place. Reuters published an arti- technology or wearables) became avail- lowed to use Google Glass while driving. cle on 16 January 2014: ‘California wom- able to South African consumers for the However, one of the concerns about us- an who drove with Google Glass beats first time in 2014. Since then consumers ing Google Glass is that it may obscure traffic ticket’ (www.reuters.com/arti- have wanted to know if they could be a driver’s vision even though it is voice cle/2014/01/17/us-usa-googleglass-tri- fined by traffic services for using these operated and essentially ‘hands free’. If al-dismissal-dUSBREA0F1XR20140117, wearables while driving. the latter position is taken then drivers accessed 10-3-2015). It reported that a The short answer is that no offi- would not be able to use Google Glass Californian woman who received a ticket cial view has been expressed by South while driving. for wearing Google Glass while driving African traffic services but this does not Smart Watches are also troubling from had the offence dismissed on technical mean consumers are in the clear. a legal perspective. They pair with the grounds. The court held that it could Section 308 (1)(c) of the National Road user’s mobile phone and provide com- not be proved if her Google Glass was Traffic Act 93 of 1996 places a duty on munication features like e-mail and text switched on while she was driving (or drivers in general to have complete ‘con- messaging. In order to use these features switched off). It left open (but clearly trol’ of their vehicle and ‘full view’ of the drivers would have to take their eyes off implied) that if the Google Glass was roadway and traffic ahead while driving. the road and use at least one hand to op- switched on while driving that driver In addition Road Traffic Ordinance erate their Smart Watch. This may be in would be penalised for contravening Regulation 308A (1)(a) deals specifically conflict with reg 308A above or the gen- traffic laws. In the United Kingdom (UK) with mobile communication technology eral National Road Traffic Act provisions the use of a smart watch is not banned while driving. It prohibits a driver from for drivers to have ‘control’ of their ve- outright but the UK Department of trade ‘holding’ a mobile phone or communi- hicle and full view of the roadway while and industry has issued a statement that cation device in one or both hands or driving. It becomes even more problem- improper use while driving could result with any other part of their body while atic to decide if wearing a wrist watch in heavy penalties. These issues are un- driving. Section 1(b) provides an excep- would be considered ‘holding’ a mobile decided in South Africa but affect a great tion where a driver uses ‘headgear’ that communication device contemplated by deal of citizens going forward. There is enables them to operate their vehicle reg 308A (1)(a). a good chance that South African traffic so they are not in contravention of the The decisive factor will be how South services will enforce regulations in line above prohibition. African traffic services enforce these with overseas trends. This regulation is strict and penalises provisions practically. For example, a the driver not only when they talk on woman applying her make-up in a traf- Russel Luck BA LLB (UC) LLM (Tech- their phone or mobile communication fic jam has a hand (or both hands) off nology Law) (Unisa) is an attorney device but when they hold this device the steering wheel and her eyes diverted at SwiftTechLaw in Cape Town. while driving. from the road. She could not be said to q

DE REBUS – APRIL 2015 - 19 - By Sechaba Mohapi Revised checklist for leave to appeal to the SCA

his contribution is a revi- SCA leave to appeal cations for leave to appeal in the High sion of an earlier contribu- Court or with ordinary motions for that tion in 2012 (Aug) DR 20, checklist matter. made necessary by the sub- This checklist is not intended to be a com- sequent promulgation of No other annexures other prehensive guide to SCA practice, and it the Superior Courts Act 10 does not deal with issues pertaining to than those mentioned Tof 2013 (the Act) that came in to effect the merits or demerits of applications in r 6 on 23 August 2013 as well as the con- for leave to appeal, as this is regarded as sequent Supreme Court of Appeal (SCA) falling within counsel’s province in the Of particular concern to the judges of Practice Direction 2014 (the direction). division of legal practice. The checklist appeal is that far too often it is the case More importantly, this revision is neces- is concerned more with points of practi- that to most applications for leave to sary due to persistent problems experi- cal procedure relating to applications for appeal lodged at the court, is usually enced at the SCA with applications for leave to appeal to the SCA. Nevertheless, attached unnecessary annexures other leave to appeal and criminal petitions. than the only essential annexures there- Practice in the SCA is still generally this does not detract from attorneys and their duties and responsibilities towards to, namely the judgments and orders of regulated by the Act, the rules Regulat- the court a quo on the merits and refus- their clients of knowing something of the ing the Conduct of the Proceedings of ing leave to appeal. test formulated, crystallized and applied the Supreme Court of Appeal of South From the experience of a Bloemfon- by the courts in determining whether or Africa of 1998 (the rules) and the SCA tein attorney and the Office of the SCA not to grant leave to appeal. For the at- direction. However, despite the avail- Registrar, applications with unnecessary torney, this is a simple matter of look- ability of these prescripts, problem ar- annexures are accepted under protest ing at the relevant commentary on what eas remain. It is, therefore, worthwhile because of the explanation usually sub- is appealable in DE van Loggerenberg to have a basic checklist highlighting the mitted by the instructing attorneys that and PBJ Farlam (eds) Erasmus: Supreme important and often overlooked aspects such applications have been drawn by Court Practice at A1–42 – A1–52B, or in of SCA practice. counsel, the assumption being that the DR Harms Civil Procedure in the Superior greatest care has been taken in drawing Changes brought by the Courts para C1.7 – C1.33, and for crimi- such applications. So persistent is the nal petitions E du Toit et al Du Toit: Com- Act problem with applications that offend For purposes of this article, the most im- mentary on the Criminal Procedure Act the sub-rule that the judges of appeal portant change brought about by the Act at ch 31-11 – ch 31-12. are considering to make a direction that is that the timeframe for lodging appli- Applications for leave to a certificate of compliance with r 6 be cations for leave to appeal or petitions signed and lodged together with appli- has been changed from the old 21 days appeal in general cations for leave by the attorneys who to one month after refusal of leave by lodge them (similarly to the certificate of the court a quo. Previously, applications Applications for leave to appeal to the compliance that is lodged together with had to be brought within 21 calendar SCA are brought on notice of motion the Practice Note and Heads of Argu- days and the now replaced SCA Practice supported by affidavit (r 1(1) of the ment in terms of r 10A for appeals). Direction of 2011 provides, in para 2, rules). With regards to the form of the Since 2006 when the letter was cir- that where applications for leave to ap- application for leave to appeal, answer culated, the SCA has seen a further peal were brought within 21 ‘court days’ and reply, the rules prescribe that they increase of applications for leave to as opposed to calendar days, it was not must be ‘clear, succinct and to the point’; appeal, which has further added to necessary to apply for condonation. The and that they must fairly furnish all in- the ‘extra-forensic workload’ of the change brought by the Act is, therefore, formation necessary to enable the court judges of appeal. For instance, over a welcome one as it brings into uniform- to decide on the application, and they 1 000 applications and petitions were ity with the rest the timeframes in the must deal with the merits only insofar as registered for the first time in 2013 and rules that of lodging applications for is necessary for purposes of explaining this has been the average number of ap- leave to appeal or petitions. Obviously, and supporting the grounds on which plications for leave to appeal registered this also necessitated a change in the leave to appeal is sought or opposed at the SCA ever since then. For the afore- SCA practice directions that have es- (r 6(5) of the rules). mentioned reasons, it is hoped that this sentially remained the same, save to It is important to note on the question contribution assists more practitioners omit the previous provision that accom- of the form of applications for leave to to ensure that applications lodged at the modated applications lodged within 21 appeal to the SCA that they are not to SCA do not offend r 6. court days. be treated in the same manner as appli-

DE REBUS – APRIL 2015 - 20 - PRACTICE NOTE

Checklist Applications for leave to appeal Provision Must be brought within one month after refusal of leave by court a quo (date of judg- s 17(2)(b) ment or order refusing leave). NB: Dies non (16 December – 15 January) are not applicable to applications as period for lodging is not governed by rules (see r 1(2)(b) referring to ‘period on terms of these rules’). Must be served on respondent(s) and optionally on Registrar of court a quo. Uniform Rules r 4 Must be lodged with Registrar of SCA in triplicate (original plus two copies). r 6(1) If longer than ten pages, must be printed and copied double-sided. direction para 3(a) Should not exceed 30 pages in length. r 6(5)(b)(iii) Annexure of judgment and court order of Provided that Registrar may extend the r 6(2) court a quo appealed against (in criminal period for the filing of a copy of the judg- cases the judgment must include on con- ment or judgments for a period not ex- viction and sentence). ceeding one month on written request. Annexure of judgment and court order re- r 6(2) fusing leave to appeal. Binding by plastic ring-binder is appreciated by court. Practice Where judgment and order refusing leave cannot be obtained, a letter from Registrar direction para 1 of court a quo certifying date of such Order will be sufficient. Where it is not possible to lodge original application on last day, copy is sufficient, but r 4(1)(b) the original must be lodged within ten days thereafter. NB: Where it is not possible to lodge copy of application on last day for lodging, ap- r 12(6) plication for condonation must be done, failing which application lapses. Answer Must be served and lodged within one month after service of the application. r 6(3) Lodged in triplicate (original plus two copies). r 6(3) If longer than ten pages, must be printed and copied double-sided. direction para 3(a) Should not exceed 30 pages in length. r 6(5)(b)(iii) Binding by plastic ring-binder is appreciated by court. Practice Where it is not possible to lodge original affidavit on last day, copy is sufficient, but r 4(1)(b) the original must be lodged within ten days thereafter. Where it is not possible to lodge copy of affidavit on last day for lodging, application r 12(6) for condonation must be done for non-compliance with rules, failing which a determination may be made in the absence of the answer. Reply Must be served lodged within ten days after service of answer. r 6(4) Must strictly deal with new matters raised in answer. r 6(4) Lodged in triplicate (original plus two copies). r 6(3) Should not exceed ten pages in length. r 6(5)(b)(iii) Binding by plastic ring-binder is appreciated by the court. Practice Where it is not possible to lodge original affidavit on last day, copy is sufficient but r 4(1)(b) the original must be lodged within ten days thereafter. Where it is not possible to lodge copy of application on last day for lodging, applica- r 12(6) tion for condonation must be done for non-compliance with rules, failing which a determination may be made in the absence of the reply.

Sechaba Mohapi LLB (NWU) is a law researcher at the Supreme Court of Appeal in Bloemfontein. q

DE REBUS – APRIL 2015 - 21 - By Ann Bertelsmann Is your client a ticking bomb?

s Viljoen (V) owned a bou- How can you identify such have the authority to act? Obtain proof tique in a large shopping of this. Many claims have resulted from mall. She alleged that a client? this simple failure. her landlord had wrong- In the first place, be wary if you are not – In one such claim, the attorney had fully evicted her from the the first firm that the prospective client been unaware (or had lost sight of the Mpremises, causing her to lose her thriv- has been to with this matter. It may be fact) that his client was, in fact, instructing business and her only source of in- well worth your while to make further ing him in his capacity as the sole direc- come. She wished to claim several mil- enquiries. This could be a very difficult tor of a company. He instituted action lion rand for future loss of profits and client like V. Over the years, this has in the name of the client and the claim emotional stress. She approached attor- proved to be the case in many profes- had become prescribed before he could neys at Firm 1 to assist her. The land- sional indemnity claims. re-issue the summons in the name of the lord’s version differed from hers and Gut feel? Your instincts and first im- company. Firm 1 managed to reach a commercial pressions are usually correct. Perhaps – In another claim, a client signed a settlement for a nuisance payment of the potential client shows signs, like contract on behalf of a trust in the pres- R 50 000. running down a previous attorney, tell- ence of his attorney. The attorney had V subsequently approached Firm 2, ing you what the law is on the subject neglected to ascertain whether or not complaining that Firm 1 had substantial- and how you should run the matter or the client was authorised to sign. The ly under-settled the claim, without her quibbling over your fee structure? Be trust (and ultimately the court) declared agreement. Firm 2, believing her version, alert for signs. the contract null and void. brought an action on her behalf against It is best to politely refuse to take the Failure to do either one or two above Firm 1. When she was unsuccessful, she instruction, but if you decide to accept could result in a fraud being perpetrated approached Firm 3 to bring an action the mandate you will need to apply as by your client. You are likely to be held against Firm 2. And so it went on … . many of the following precautions as liable. possible: Clients move, go overseas or back 3 to rural villages without thinking of A happy, satisfied client will return Thirteen golden rules warning you. Insist on being given all and recommend you to others … to protect your practice possible contact details and even those But an unhappy or dissatisfied cli- against a potentially dis- of client’s next of kin, friends and em- ent is a potential plaintiff in a civil ployers – especially if you think that claim for breach of mandate, a satisfied client (once you the client might prove uncontactable at complaint to your law society or at have decided to act for any stage in the future. (See Mazibuko v the very least, a fee dispute! him or her). Singer 1979 (3) SA 258 (W) and Mlenzana v Goodrick and Franklin Inc 2012 (2) SA The protections discussed below should 433 (FB)). Before taking on a potentially dissatis- ideally be dealt with in your firm’s Mini- Have the client sign a power of attor- fied client, you need to be sure that this mum Operating Standards (MOS) or ney, in case you need it. Some practition- is a client that you will not later regret Standard Operating Procedures (SOP) ers also recommend including a domi- taking on. The firms in the case study document. See 2014 (July) DR 20 cilium citandi et executandi in the letter above certainly did. of engagement. You would need to care- There is a lot of talk about Client Pro- In the beginning … fully explain the implications of this to tection – which should of course be one It is essential to establish exactly who the client. (I am not sure what approach of our profession’s major goals – but 1 the prospective client is. This seems the courts would take to a defence along there is seldom any mention of Practice obvious, but failure to do so has led to these lines.) It is a good idea to advise Protection (in relation to the client). many successful claims against practi- the client in advance, of the date when Looking at the claim statistics that tioners. Your practice needs very firm the claim will prescribe. If you have re- we previously published in 2014 (May) rules on compliance with Financial Intel- quested documents or information, ex- DR 26 it is clear that practitioners need ligence Centre Act 38 of 2001 (FICA) and plain by when you need this and why. to consider how to avoid claims being sanctions for those who fail to comply. (This can go into your engagement let- made against them. One way is to avoid Know your client. (See Hirshowitz Flionis ter – see 9 below.) We have dealt with taking on a client, who may be more like- v Bartlett & Another [2006] 3 All SA 95 numerous claims where, at the eleventh ly than others, to make a claim against (SCA).) hour, the client could not be contacted. them. There are some clients who will be You need to know whether your pro- Conduct conflict of interest checks. dissatisfied however hard we try. I am 2 spective client is acting individually, 4 In this regard, you will also need to sure that many of you have experienced together with or on behalf of someone obtain enough information regarding a client like this. else or another entity. Does he or she other potential parties to a matter.

DE REBUS – APRIL 2015 - 22 - PRACTICE MANAGEMENT

Be wary of acting on behalf of friends, be covered (or not covered) by the man- 5 family or colleagues. They can be date. You can deal with the proposed problem clients. We have many claims to course of action to be taken and even the prove this. reasons for this. You can stipulate the Ensure that you have the necessary method of communication to be used 6 expertise and capacity in your prac- and the envisaged frequency of commu- tice to take on the matter. In cases where nications. (This should deter those cli- the firm takes on any such matters be- ents who contact you incessantly, since cause they need the work or feel sorry they believe that they are your only cli- for the client because the claim is about ent.) In fact any important aspects of the to prescribe, a claim inevitably follows. mandate and instructions can be con- Beware of a client with unrealistic ex- firmed. 7 pectations. Get all relevant facts and documents And later … from your prospective client and make Communicate with client regu- sure that you understand precisely what 10 larly and effectively. The impor- his or her expectations are – and man- tance of this cannot be stressed enough. age these expectations from the begin- Many unpleasant interactions and claims ning. Make sure that you put the client could have been avoided if the practi- in touch with reality as far as achievable tioner concerned had only done so. Keep outcomes are concerned. Put details of client informed in plain language. Taking this in your engagement letter (see 9 be- regular instructions will make the client low). feel more involved in the process and It happens quite often, for example less likely to question your actions or with Road Accident Fund (RAF) claims, make unnecessary complaints. that a client has been advised by some- Vary the terms of the letter of en- one else to see an attorney in order to 11 gagement. If there are changes in lodge a claim with the RAF. That person the proposed course of action or man- either has received a large payout from date, make sure that these are recorded the RAF or knows someone who has. in an amended (and signed) letter of en- The client then arrives with huge money gagement. signs in his or her eyes and needs to be In the course of carrying out your brought firmly down to earth about the 12 mandate, avoid giving non-legal prospects of his or her claim. advice or advice in respect of any area of It is a mistake to deliberately or inad- law in which you have little or no knowl- vertently raise your client’s expectations edge. This is asking for trouble. about what the outcome of the matter Where there are any contractual will be. 13 or settlement negotiations, en- Avoid promising a substantial payout sure that you give client detailed advice or that the transfer will be registered (in plain, understandable language) on within a certain time-frame. Instead, all relevant issues – and then be sure to properly advise the client that diffi- record this in writing to cover yourself culties might occur – such as possible should there be any dispute at a later problems in obtaining the title deeds date. or clearance certificate or a possible ap- We deal with many claims where there portionment of blame. Then keep the cli- is an alleged under-settlement of a claim ent informed of any difficulties as they or failure to give advice during contrac- emerge, rather than waiting for the client tual or other negotiations. to make the enquiry. Look out for clients like V – there are Beware, claiming an unrealistic quan- more of them than you can imagine. For tum in a summons, could well raise your safety sake, treat all clients as if they client’s expectations of the outcome of could potentially behave like V. the matter. Ensure that you take a realistic de- Ann Bertelsmann BA (FA) HED posit and agree your billing rates and 8 (Unisa) LLB (Wits) is the legal risk policies up front, so that you are never manager for the Attorneys Insurance put in the position where you have to sue Indemnity Fund in Johannesburg. the client for fees. (A summons for fees q inevitably leads to a counterclaim for breach of mandate.) Make sure that you and your client 9 have signed a comprehensive letter of engagement/retainer/mandate before or at least within a reasonable period after you proceed with the matter. In this document, reflecting the contract between you and your client, you have the perfect opportunity to set out exactly what you and your client can ex- pect from one another and the work to

DE REBUS – APRIL 2015 - 23 - Court-annexed mediation: Should it be embraced by the legal profession?

By Benjamin Charles van der Berg Picture source: Gallo Images/iStock source: Picture

DE REBUS – APRIL 2015 - 24 - FEATURE

December 2014 marked the disputants with a carrot, but in the event Mediation empowers advent of court-annexed me- of our courts following some interna- diation in magistrates’ courts. tional precedents it also presents a stick people to resolve their The magistrates’ courts in- as failure or refusal to mediate might own disputes volved in this pilot project lead to adverse or punitive cost orders Often litigants perceive litigation as a are seated at Johannesburg, being granted. power struggle. People often threaten 1Soweto, Randburg, Krugersdorp, Kagiso, with legal action or their attorneys. Pretoria North, Soshanguve, Palmridge, Mediation is generally After threats have been made they then Sebokeng, Mmabatho, Temba and Potch- highly effective as a seek the advices of their attorneys and efstroom (GN 855 GG 38164, No 855, so litigation ensues with the heading of 31-10-2014). The rules of court govern- dispute resolution process court documents pronouncing the com- ing such mediation and the qualifica- Mediators are unanimous that mediation batants. Though, in the mind of the liti- tions, standards and prescribed tariffs has a success rate of 80% to 90%. For ex- gants, they might think that they are ‘en- for mediators have been promulgated. ample, British Columbia reported that forcing’ their rights, what in actual fact With the aforementioned the govern- 80% of about 30 000 motor vehicle acci- happens is that they are disempowering ment had set the stage (although it being dent cases were successfully resolved as themselves and handing over the control a humble one) for court-annexed media- a result of mediation (www.ag.gov.bc.ca/ of resolving their dispute to their legal tion to commence. The only further re- dro/publications/bulletins/why-medi- representatives and the court, which is quired element is the political will of all ate.htm, accessed 27/2/2015). In the year governed by the laws and rules of court. concerned to participate in the process. 2000 Singapore’s statistics boasted with With mediation, the disputants remain in The primary focus of this article will a success rate of 95% out of 3 943 cases control of the process of resolving their therefore not be on the process of such (www.legco.gov.hk/yr01-02/english dispute and may even agree on the me- mediation, which might see changes as /panels/ajls/papers/aj0422-1574-1e- diator they are comfortable with. Dispu- the process matures, but motivational scan.pdf, accessed 27-2-2015). tants are encouraged to work together aspects will be highlighted and therefore in finding a solution to their problem. the focus will be on the question: Why Mediation comes natural Neither party is disempowered nor is the mediate? element of enforcement present at the At first glance, the legal practitioner to people and promotes mediation proceedings. This aspect of might view court-annexed mediation harmonious relationships self-determination is of great value for with scepticism, if not finding the idea Mediation is in essence not complex and certain individuals and entrepreneurs. questionable that the intended media- indeed comes quite naturally. To many tion may prove to be beneficial, if not in- it is a familiar sight to recall a mother or Mediation provides a confi- valuable, to all concerned. Indeed many a teacher resolving a dispute by stand- may feel mediation is a waste of time ing between two rival siblings or learners dential platform for dis- and rarely utilised successfully. Indeed holding their wrists in each hand while putants to properly vent the process of mediation can become a resolving a dispute. Indeed the word legal ornament if people do not buy into issues and is conducive to ‘mediation’ is etymologically derived effective communication the process. from the Medieval Latin mediatonem As we explore the nature of mediation (nominative mediatio), meaning ‘the divi- As a result of the informal process and the potential benefits will become self- sion in the middle’. Although mediation atmosphere of mediation, disputants can evident and will prove invaluable to the models taught to mediators greatly re- better communicate their interests and judicial process, to society in general and fined the process, mediation at its core is concerns and many of the stresses of the to legal practitioners and their clients. about a caring person being in the midst adversarial court processes are avoided. of two disputants, aiming to resolve the In this regard legal practitioners as me- What is mediation? dispute between them in such a manner diators must caution themselves not to Rule 73 of the Magistrates’ Court Rules that they can live in harmony with one be too formal while mediating. adequately defines ‘mediation’ as ‘the another. As opposed to this, litigation Disputants are encouraged by media- process by which a mediator assists the can be described as an adversarial pro- tion to negotiate openly with one anoth- parties in actual or potential litigation cess with a winner and a looser. Indeed er in order to reach a settlement. In this to resolve the dispute between them by many of us will frown on an adult teach- regard clause 12 of the Agreement to facilitating discussions between the par- ing children to settle disputes by way of Mediate (Form MED-6 of Annex 3 to the ties, assisting them in identifying issues, competitions. In terms of r 71 (b) and Magistrates’ Court Rules) stipulates that clarifying priorities, exploring areas of (c) of the Magistrates’ Court Rules some the mediation will be strictly confiden- compromise and generating options in main purposes of mediation are to ‘pro- tial and without prejudice. This aspect an attempt to resolve the dispute’. It is mote restorative justice’ and ‘preserve can be of great value if one of the dispu- further emphasised in r 72 of the Mag- relationships between litigants or poten- tants wants to save face and not proceed istrates’ Court Rules that mediation is tial litigants which may become strained with litigation, which takes place in open a voluntary process. In mediation a dis- or destroyed by the adversarial nature court, especially if the dispute might at- pute is resolved by the disputants reach- of litigation’. This aspect may prove in- tract attention in the media because of a ing a settlement agreement. valuable where the disputants were in scandalous aspect. a close relationship or from a customer Disputants can freely present their Why mediate? care perspective or even where a general side of the dispute. They are not restrict- business relationship is sought to be pre- ed by the question-answer format fol- There has been a tremendous increase served. South African society is in need lowed in court. They are not restrained in mediations over the last decade or so. of restorative justice and harmonious by the law of evidence and may address This can be attributed to the successes relationships to counter conflicts result- aspects, which would not have been mediation has delivered as well as the ing in the polarisation of people, which addressed if the matter went to court. benefits it provides. Not only does me- in turn may result in protests, violence Disputants are also not limited to legal diation present legal practitioners and and/or litigation. remedies. Many disputes are indeed not

DE REBUS – APRIL 2015 - 25 - FEATURE of a legal nature and are caused by per- R 600. These rates do not make media- In most instances it is in the client’s best sonal aspects such as personal feelings, tion more attractive for the legal prac- interests to mediate and clients should at strained relations and finances, which titioner. There is no reason why legal least be advised on the option of media- ordinarily will not see the light of day in practitioners should not be able to tion and the potential benefits. In Halsey court. So, for instance, capacity to pay charge fees comparative to litigation v Milton Keynes NHS Trust [2004] EWCA may be safely addressed during media- fees. Mediation will still be less costly Civ 576 this obligation was entrenched tion. Often litigants realise with shock than litigation because of the simplicity in English jurisprudence as follows: that ‘having your day in court’ does not of the mediation process and duration ‘All members of the legal profession who mean ‘having your say’ in court. Usually compared to litigation. Mediation is also conduct litigation should now routinely the parties as co-authors of a settlement an excellent opportunity for legal prac- consider with their clients whether their view the outcome of mediation as fair titioners to meet their annual pro bono disputes are suitable for ADR’ (at para and they leave with the feeling that they obligations and thereby promoting ac- 11). have been heard. cess to justice. Punitive and adverse costs Mediation is less costly to Mediation (notwithstand- orders for not advising on the client and less time ing the above criticism) is mediation consuming good for business Rule 33 of the Magistrates’ Court Rules Though the subheading will need little gives magistrates a wide discretion in motivation for attorneys, the following Quite often clients have a litigious mind- awarding costs and stipulates that a quote is offered: set and with that also unrealistic ex- court ‘may award such costs as it deems ‘Discourage litigation. Persuade your pectations as to what litigation entails. fit’. Unreasonable failure to mediate may neighbors to compromise whenever you Therefore clients might be surprised result in an adverse cost order (compare can. Point out to them how the nomi- when you advise them to mediate and the Halsey case cited above for guiding nal winner is often the real loser; in they may even be against the idea. Few factors). Failure to advise a client might fees, expenses and waste of time. As a businesses are faced with the challeng- be grounds for a de bonis propriis cost peacemaker the lawyer has a superior es attorneys face with the alignment order in appropriate circumstances. opportunity of becoming a good man’ – of delivering legal services with the ex- Conclusion Abraham Lincoln (http://jskemper.org/ pectations of clients. In essence clients Mediation, though not a panacea for blog/2012/11/the-importance-of-me- usually need the effective and efficient every dispute, should be embraced and diation-and-peacemaking-a-kemper- resolutions of their disputes and this is promoted by legal practitioners for the scholars-alum-guest-blog/, accessed 10- what mediation usually achieves. When better of all South Africans. Notwith- 3-2015). the needs and expectations of clients are met, the result is customer satisfaction, standing the risks of adverse and puni- Mediation offers legal which in turn will result in more refer- tive cost orders, we are reminded of the practitioners with a career rals and instructions. words of John F. Kennedy during his in- augural address, 20 January 1961: ‘Let alternative Mediation and case load us never negotiate out of fear. But let us The prescribed low fees and qualifica- never fear to negotiate.’ tion standards perhaps necessitates Presiding officers need to manage their • See 11. some criticism. Legal practitioners are case load and as is evident from the qualified individuals who primarily ren- court rolls, your matter is one among der their services for compensation. many. Mediation is conducive to lessen- Mediation does not require less skill ing the case load at courts and so pro- and expertise than litigation, though it moting the ends of justice. Benjamin Charles van der Berg LLB requires different skills and expertise. (UJ) is an attorney at Borman Duma The prescribed hourly rate for mediation Ethical duty on advising Zitha Attorneys and court-annexed for a level 1 mediator amounts to R 500 clients on mediation mediator in Randburg. and for a level 2 mediator it amounts to q

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By Marietjie Botes Picture source: Gallo Images/iStock source: Picture

ediation as an alternative governing the proceedings in the High The challenge form of dispute resolution Courts of South Africa. Being a voluntary received renewed attention process that allows the participants to South African health care disputes re- with the court-annexed me- control the course and outcome of their sulting in litigation are dramatically in- diation rules being piloted dispute, in a private and confidential set- creasing. Not only the number, but also Mat various magistrates’ courts around ting, it seems to be the perfect solution the sizes of medical malpractice claims South Africa and already provided for to health care disputes for reasons that I have increased. The Medical Protection in r 37 of the Uniform Rules of Court will discuss below. Society confirmed an increase of medical

DE REBUS – APRIL 2015 - 28 - FEATURE malpractice claims against their mem- ing the outcome of a trial, exacerbate an patient relationship the patient usually bers of nearly 550% in comparison with already hostile relationship and drag on feels overpowered by the more knowl- ten years ago and an increase in the for years. Mediation, on the other hand, edgeable and important doctor and far number of claims exceeding R 5 million preserves relationships, maintains pri- from being able to vindicate his or her of approximately 900% during the past vacy and confidentiality, give everyone a moral position. five years, with several of these claims voice and put control of the process back One of mediation’s strengths is to neu- exceeding R 30 million (Sherlock C Let- in the hands of the disputing parties to tralise any power imbalances by allow- ter to members of the Medical Protection enable them to determine their own out- ing a ‘weaker’ party, like the patient, to Society re membership renewal and sub- come. air his or her feelings in confidentiality, scription rates, 2010 & 2011 in MS Pep- during private caucus sessions with the per and MN Slabbert ‘Is South Africa on The standard and the mediator, where he or she might other- the verge of a medical malpractice litiga- alternative wise not have been comfortable in do- tion storm?’ (2011) 4 SAJBL 29). To call mediation a form of Alternative ing so in the presence of the doctor, let In MS Pepper and MN Slabbert’s paper Dispute Resolution (ADR) is a misnomer alone in a public hearing. Through this (op cit) they argue that this state of af- because the majority of litigious matters mechanism, the actual root of a dispute fairs could be attributed to – are settled before proceeding to trial. It can be exposed and dealt with by giving • patients being better informed of their would then be more accurate to call liti- a ‘weaker’ party the opportunity to be rights and legal options; gation the alternative method of dispute heard and listened to. • the further deterioration of an over- resolution and mediation the norm. The zero-sum game burdened and under resourced public The main difference between these The perception that when one party health care system as a result of increas- two methods of dispute resolution is wins, the other party loses inevitably ing large medical malpractice payouts by the subjective resolution imposed by a leads to parties withholding information the State; judicial officer during litigation and me- from each other, which makes it impos- • the faultless liability regime created by diation’s client centred approach, dur- sible to resolve any dispute because the s 61 of the Consumer Protection Act 68 ing which disputing parties control their nature and extent of the issues at hand of 2008; and own outcome by participating in one of cannot be fully established. Due to its • an increase in advertising material three styles of mediation (or any combi- very nature medical decisions are often regarding legal services offered when nation thereof): very complex, for instance how much medical malpractice is suspected. • Evaluative mediation where the me- Morphine to administer or when to re- The ripple effect is that insurance diator evaluates the strengths and weak- suscitate a patient or not. It is thus easy premiums for medical practition- nesses of each side’s story and predicts to see that information that sketches a ers such as obstetricians and the possible outcome, should the partici- full picture of the events leading to the gynaecologists, who are most pants still decide to go to court; dispute between the parties is crucial to affected by the litigation in- • Facilitative mediation where the me- its resolution and that withholding infor- crease, became so expensive diator merely acts as guardian of the me- mation will further drag out and nega- that very few practitioners diation process; and tively charge an already unpleasant or can afford it (E Coetzee Ob- • Transformative mediation where the hostile situation. stetrics: the changing face mediator supports empowerment, en- Because mediation takes place in a ful- of litigation Africa Casebook courage deliberation, decision making ly confidential and private setting par- 2010; 18:7–9 in Pepper and Slab- and perspective taking. ties can exchange information safely and bert (op cit)). Subsequently fewer freely via the mediator without fear that practitioners are sufficiently insured Why mediation is tailor the opposing party is merely fishing for or insured at all. Practitioners, fearing made for health care facts to be used against the other. Even claims against them, also practice more disputes if the mediation should fail, the parties defensively by ordering more, often un- can still proceed with litigation without necessary, medical tests to confirm their Bridging the communication gap confidential information being exposed. diagnoses, which not only results in in- The breakdown of any doctor-patient re- creased medical costs for patients, but Resolving moral dilemmas lationship is characterised by poor com- ironically also give rise to further pos- Overburdened and under resource pub- munication. Doctors’ consultations with sible scenarios for malpractice claims – lic health care facilities are breeding patients are often plagued with medical and so the increase in litigation cycles grounds for moral dilemmas such as de- jargon that leaves patients confused on. cisions regarding the continuance of life when they need to make important deci- Health care disputes and following lit- support when there seems to be no hope sions about their health and future treat- igation do not only pose huge financial of recovery or whether to proceed to ment, which can eventually lead to argu- risks, but are usually emotionally loaded provide renal dialyses to a habitual non- ments and disputes. disputes. Patients feel humiliated, angry, compliant patient. Solutions to these di- A mediator will clear away both the frustrated and hurt, over and above the lemmas are complex and governed not medical and legal jargon to make crucial financial damages they might have suf- only by health care law, but also by vari- information available to both parties in fered, while the doctor may fear the ef- ous similarly complex bio-ethical princi- plain language. Once both parties are fects a ‘trial by media’ may have on his or ples and internal guidelines. In the mat- empowered with information to enable her professional reputation and future ter of Soobramoney v Minister of Health, them to understand the other’s position, of his or her practice, over and above Kwazulu-Natal 1997 (12) BCLR 1696 (CC) disputes due to miscommunication of- the often enormous claim he or she may the Constitutional Court, determining ten resolve quickly and cost effectively. be facing. While litigation will primar- whether a patient is entitled to receive ily focus on the rights and wrongs and Balancing inequalities and power further renal dialysis from a state hospi- calculations based thereon, the whole In M Gladwell’s book Blink (New York: tal after depletion of his private medical process and its inherent adversity might Little, Brown and Company 2005), he aid and having regard to the hospital’s never get to the true root of the initial says that patients often seeks retaliation internal guidelines in this regard specifi- problem and in the meantime destroy a or vindication of their moral position in cally held that: career, bankrupt a person notwithstand- addition to money. However, in a doctor- ‘A court [would] be slow to interfere

DE REBUS – APRIL 2015 - 29 - FEATURE with rational decisions taken in good aggerated perception of control over the During specifically evaluative media- faith by the political organs and medical case because the full extent of the other tion the mediator will present both the authorities whose responsibility it [was] party’s version of events is unknown as beneficial, as well as the detrimental as- to deal with such matters’. well as the court’s view of the matter. pects of each party’s case to enable the Considering the court’s stance under Based on such illusions parties can then parties to fully comprehend their risks these circumstances it is hard to find a set extreme reservation points that can and strengths so that they can make in- more befitting method to resolve these merely lead to dragging out or escalating formed choices. disputes than through mediation. In the the dispute. • Structural barriers United States and Canada disputes be- Especially in medical malpractice dis- Every now and again clients differ with tween pro-life and pro-choice factions putes, a mediator can draw both par- their own legal team about their legal have been successfully resolved to the ties’ attention to very real risks and the advice or the direction their matter is extent that violence between factions strengths and weaknesses of their cases taking. Clients might not wish to follow has dissipated even though their differ- by means of an evaluative mediation. good advice to settle a matter or might ences in opinion still remain (www.medi- Faced with a more balanced view of the think that their legal team is dragging ate.com, accessed 3-3-2015). matter the parties can then make an in- the matter on for their own financial Overcoming cognitive barriers formed choice about accepting certain gain. Often, after a legal team gathered People often unconsciously develop cer- risks without having to incur massive the necessary information from their cli- tain mental blocks preventing them to legal costs, only to be confronted with ent, further negotiations are conducted reach agreement purely because they are the same risks or weaknesses at a much exclusively by the legal team which involved in a certain process. later stage. leaves the client without a ‘voice’ of his • Perspective bias • Reactive devaluation own or control over the direction of the The author Anais Nin (Seduction of the A settlement proposal made by an ad- matter. Minotaur (Ohio: Swallow Press 1961)) versary is often refused or rated as less Mediation is specifically structured to said: ‘We don’t see things as they are; favourable merely because an opponent empower participating parties to voice we see things as we are’. Humans by na- offered it. During litigation, when par- their own concerns and interests and in ture are egocentric and blinded by self- ties only pass on selective information full control of the direction and duration interest, which affliction can seldom it is understandable that the initial set- of the whole process without ever being be overcome without outside help. In a tlement proposals might be considered side lined. health care dispute a mediator can help with circumspection. However, due to Conclusion the doctor and patient to see the prob- the transparent and confidential nature Considering the complex, delicate nature lem from each other’s perspective, which of mediation parties can rest assured of health care disputes, imminent power often leads to insight into any situation that settlement proposals are exchanged imbalances, financial risks and the ad- and a clearer view of a possible common in good faith. versarial nature of litigation, mediation solution. • Anchoring bias offers a much needed and very produc- • Positive illusions Some times when a legal opinion is draft- tive alternative method of dispute reso- When confronted with the version of ed for a specific client, narrow focus is lution. events of only one party to a dispute it placed on the beneficial case law, where- is easy to overestimate one’s ability to as the detrimental case law might be • See 11. control the outcome of the dispute even down played or selectively quoted from. if it is determined by factors not neces- Under these circumstances a biased view Marietjie Botes BProc LLB (UP) LLM sarily within one’s own control. A legal of a party’s case might be presented with (Intellectual Property) (Unisa) is an team that consulted with only one of the a huge difference between the expected attorney at Dyason Inc in Pretoria. disputing parties often conjures up an value of the client’s case as opposed to unrealistic optimism in a client or an ex- the real value thereof. q

DE REBUS – APRIL 2015 - 30 - LEGAL RESOURCES from Juta Law

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With International Comparisons IN SOUTH AFRICA Moditem oloris am, intori voluptur, omniet et harum dollabo riossi illaborum, net The book is divided into five parts. Part 1 focuses on the dissolution of civil marriages reicillam, comnihil is ad modi volor mil ipiet explitati omnient as eiunt, unt lat pliquo and civil unions by divorce. This part deals with the grounds for divorce, the personal and di cusa sum fugitat elesectota sande nobistium dolore simint officia voluptatium 0709-5 financial consequences of divorce, and the position of minor and dependent children 0734-7 reicium nosaestotas rem nihit autatus accumqu atibus, si ommodic toreperit of divorced or divorcing spouses or civil union partners. Part 2 focuses on all aspects THE LAW OF DIVORCE AND DISSOLUTION excepra quiducita dolorerum doluptasit, id ulliquam volorro verepudante non nonse of divorce in customary marriages, while Part 3 concerns divorce in Muslim marriages and Hindu marriages. Part 4 addresses all aspects relating to the dissolution of a life sitatibustis qui veliqui duntis maio berum quosam sapelignatia que peruptatem ut OF LIFE PARTNERSHIPS partnership. The final part of the book — Part 5 — considers issues that are of general faceped eatiorem que dolum quiam aboremp orioreiur ati dolupta cuptiis aut rest, application to divorce and the dissolution of life partnerships. These issues are domestic qui suntium acea veria consequi berumqui ipsamenime nonsequam fugit acitias et violence; jurisdiction, procedure, and costs; mediation and other forms of alternative IN SOUTH AFRICA pori sum in num ea cus que poris inient enti aboreiunt minto coratus est, aliaspidunt, dispute resolution; and conflict of laws. offic temos asseni occat ad que volendi dit fugit enimi, solluptae voluptae. Et vellam eturi qui sincient quodi optatiaecta quo optatur?

Aximpor am alia coritiossit facepe qui denitione ipsanto et explabore culloreicae dia dolo offic tem adi con eos sus. Elia plam ute velendam volupta tibusae volupicia poreptae parum autem fugia ad eos event et andandissit labo. Udipiti stiatem harci dolor res acesequ idellup tatemque officti isquatur sent la vero ma voluptatur ad Corporate Governance in The Law of Divorce and Dissolution The Law of Divorce and Dissolution of Life Partnerships in South Africa is primarily J HEATON (ED) eaqui remostias eiciis sumque sa cus, optatem landestinum, coreruntur ab ipsunt, designed for the subject specialist. The book will be of indispensable value to academics, conemod mosam dellupt atinumquat. researchers, postgraduate students, legal practitioners and presiding officers in the field of family law. Tobie Wiese South Africa: With International of Life Partnerships in South Africa JACQUELINE HEATON (ED) Comparisons J Heaton (ed) www.jutalaw.co.za Tobie Wiese T Wiese Written by a team of subject specialists, this book Corporate Governance in South Africa addresses the provides a detailed exposition and analysis of the changes in the corporate governance landscape law relating to the termination of civil unions, civil in South Africa, placing the South African corporate marriages, customary marriages, Muslim marriages governance framework in an international context. and Hindu marriages by divorce. It also offers an in- The book examines contemporary governance depth discussion and analysis of the law relating to issues, offers a corporate governance implementation the dissolution of life (domestic) partnerships. guide, and provides examples of corporate governance practices.

11 mm ZAR EDITION SECOND Legal Terminology: LEGAL DRAFTING Criminal Law, Procedure and Evidence Soft cover 662 pages 978-1-4851- R650 SECOND EDITION Civil Proceedings LEGAL DRAFTING ZAR Regsterminologie: 0716-3 In 1998, Peter Van Blerk, a senior counsel Straf-, Strafproses- en Bewysreg practising at the Johannesburg Bar, wrote the first edition of Legal Drafting – Civil Proceedings to bridge the gap between the academic study of law and its practical Soft cover 180 pages 978-1-4851- R465 application insofar as the preparation Civil Proceedings Civil of court documents is concerned. The book was of particular significance to pupils at the Bar studying for the seven hour open-book Legal Writing 0612-8 Legal Terminology: Criminal examination. Such was its value and assistance that it may not be taken into the examination by pupils. SECOND EDITION Law, Procedure and Evidence / The second edition of Legal Drafting – Civil Proceedings has been updated PETER VAN BLERK to address changes in the law. It now includes a section on the preparation of documents for arbitrations as well as an extended chapter on the all- Legal Drafting: Civil Proceedings important task of preparing heads of argument. Notwithstanding all of this, LEGAL Regsterminologie: Straf-, Strafproses the book remains (in the words of the author) an ‘instruction manual’ to Centre for Legal Terminology in African Languages attorneys and advocates alike. DRAFTING (2nd edition) en Bewysreg Civil Proceedings P van Blerk PETER VAN BLERK Centre for Applied Legal Terminology in www.jutalaw.co.za This book bridges the gap between the academic African Languages (CLTAL) study of law and its practical application insofar as the preparation of court documents is concerned. This This bilingual (English–Afrikaans / Afrikaans–English) updated second edition addresses changes in the dictionary deals with the areas of criminal law, criminal law and now includes a section on the preparation procedural law and law of evidence, and is aimed of documents for arbitrations as well as an extended at familiarising users with the use of legal language chapter on the all-important task of preparing heads in a number of settings, including the courtroom. of arguments. Users can access over 20 000 legal words, each of which is explained in plain English. A useful list of Latin 29mm terms and phrases, together with explanatory notes, is SUPERIOR MAGISTRATES’ COURTS COURTS

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@jutalaw Juta Law Fixed or flexible: By Anye Jansen van Shifren ‘shackle’ Rensburg

he Shifren principle came involved in fraudulent activities by about in the Appellate de- pocketing certain funds. The munici- cision of SA Sentrale Ko- pality suspended him pending an op Graanmaatskappy Bpk investigation into the fraud. A v Shifren en Andere 1964 hearing was held and Mr Hlazo (4) SA 760 (A). This prin- was found guilty. Mr Hlazo ciple is set out in Brisley then tendered his resigna- Tv Drotsky 2002 (4) SA 1 (SCA) as follows: tion, which was denied by ‘contracting parties may validly agree in the municipality. He then writing to an enumeration of their rights, tried to enforce his res- duties and powers in relation to the sub- ignation (this would buy ject matter of a contract, which they may him more time and es- alter only by again resorting to writing’. caping the financial This principle more commonly known as implications of be- the enforcement of non-variation claus- ing dismissed rather es on parties namely, binding parties than resigning) by to non-variation clauses (entrenchment relying on a clause clauses). in the employment There are various arguments for and agreement that pre- against the Shifren principle. Arguments scribed arbitration for the principle entails, that when par- as mandatory pro- ties have agreed to the terms of an agree- cedure for resolu- ment, they avoid further disputes by tion of disputes read including a non-variation clause that en- with an entrenchment tails that the parties will be bound to the clause. This clause written terms on the agreement and that provided that no vari- any oral variations will not be valid, thus ation, modification or eliminating disputes caused by oral vari- waiver of any provision ations. Arguments against the principle of the agreement would are that freedom of contract of the par- be of force or effect unless ies to an agreement are hampered when confirmed in writing and parties included a non-variation clause, signed by both parties. Thus because parties should be allowed to he argued that the disciplinary change their minds and alter/vary the procedure followed was defec- agreement orally. tive as it did not comply with the Recent developments in the law has agreement and that the parties tacit- seen courts loosening the Shifren ‘shack- ly agreed to a different procedure. This le’ on some agreements through the ap- clause prevented them from doing so. plication of public policy. Below are the Thus the Shifren principle was invoked. three most recent cases where the courts The court held that the general rule, have refused to enforce a non-variation that stems from the common law, is that clause on the basis that it was against an agreement may not be enforced if un- the court had public policy. der the circumstances it offends public to consider was Nyandeni Local Municipal- policy. This general rule has been applied ‘does the enforcement of throughout various court decisions. The the entrenchment clause, as required ity v Hlazo 2010 (4) SA 261 Constitutional Court case of Barkhuizen by Shifren, in the circumstances of this (ECM) v Napier 2007 (5) SA 323 (CC) confirmed case offend public policy?’ To answer The facts of the matter are briefly as this: ‘But the general rule that agree- this question the court had to consider follows: Mr Hlazo was employed by the ments must be honoured cannot apply the concept of public policy. Alkema J, municipality. It was discovered through to immoral agreements that violate pub- then went on to discuss the guidelines forensic accounting that Mr Hlazo was lic policy’. The essential question that when looking at public policy that have

DE REBUS – APRIL 2015 - 32 - FEATURE

• identify the constitutional princi- nance settlement agreement. The par- ple that informs public policy and ties made changes to the residency and which is said to be offended. This maintenance arrangements after the principle is then balanced and agreement was made an order of court. measured against the challenged S wanted to enforce the agreement with contractual term (para 94). regards to the maintenance and G ob- Applying the abovementioned jected that the agreement had been the court ruled that varied by the parties. S then relied on the Shifren principle that there is a non- variation clause in the settlement agreement and thus the agreement could not be changed/varied. Picture source: Gallo Images/iStock source: Picture The court held that the agreement in question could be distinguished from other agreement where Shifren normally applies in that this agreement was not a commercial agreement, thus other considerations would have to be taken into account. In this instance the best interest of the child would play a paramount role in deciding whether the Shifren principle should be applied or not. The court held that in this instance public policy demanded that the Shifren principle not be applied. This case has been appealed and the the entrenchment clause is per se con- Supreme Court of Appeal (see SH v GF trary to public policy. The operation on 2013 (6) SA 621 (SCA)) has taken a dif- the fact of the case does offend public ferent approach to the amendment made policy. The contractual term is the en- and rules that the parties never intended trenchment clause which is protected by that the variation in fact be a variation pacta sunt servanda and right to free- of the agreement and thus Shifren would dom and dignity entrenched in the Con- play no part. The court held that both stitution. parties were aware of the non-variation The court moves on and does in ac- clause and that in order for the mainte- tual fact not apply the abovementioned nance agreement to be varied it needed guidelines to the facts on hand, but to be in writing and signed by both par- holds that Hlazo does not have a bona developed fide defence as he is trying to use the ties. Thus the arrangement made be- through the Shifren principle not for a legitimate tween the parties did not constitute a years – purpose, but for an ulterior purpose of variation, but was merely a trial period. • it must be de- delaying his dismissal to his financial If the new arrangement was successful termined whether benefit. Alkema J makes reference to in this trial period then a formal varia- the contract or term s 34 of the Constitution, which deals tion of the agreement would take place. challenged is per se with access to court. This right also in- contrary to public policy cludes the right to be protected against Steyn and Another v Karee or whether its operation in the the abuse of the process of law. In the Kloof Melkery (Pty) Ltd and prevailing circumstances and facts end the court rules that the: ‘Public pol- Another (GSJ) (unreported of the case, which renders it contrary to icy, as expressed by the constitutional public policy (para 81); values and norms, does not tolerate the case no 2009/45448, 30- • determination of fairness under the abuse of the process of law’ and thus 11-2011) (Peter AJ) constitutional setting is not dependent the facts and circumstances of this case In this case the agreement in question on the personal views of both the judge justifies the departure from the Shifren was a commercial agreement, a sale of and parties to the contract (para 85); principle. a business agreement. The Steyns were • public policy requires parties to com- farm owners and Karee Kloof wanted to ply with contractual obligations that GH v SH 2011 (3) SA 25 buy the farm and the business on the are freely and voluntarily entered. Pacta (GNP) farm. The agreement contained a non- sunt servanda (para 91); This case concerned a written mainte- variation clause. There were numerous

DE REBUS – APRIL 2015 - 33 - FEATURE complications with the transaction and The court assessed what would occur if nal agreement, but to the other collateral in essence to resolve some of the dis- the settlement agreement was enforced. agreements/disputes. Thus the court putes two settlement agreements were It would lead to a conclusion of the liti- held that upholding the Shifren principle entered into. A year after the last set- gation process currently pending in the would be against public policy. tlement agreement was entered into the magistrate’s court and other disputes Steyns instituted an action for payment that could arise. The second settlement Conclusion of an arrear amount for the sale of the agreement was not confined only to the Abovementioned case law displays the business in terms of the sales of busi- sale agreement, but dealt with other dis- notion that when public policy demands ness agreement. Karee Kloof pleaded putes between the parties too. The court the Shifren principle will not be applied that the parties agreed to a settlement ruled that three public policy considera- and effectively a variation to an agree- and the settlement agreement was ad- tions warranted that the Shifren princi- ment done contrary to the requirements hered to and thus they owed nothing ple be relaxed and not applied. First, that of the non-variation clause will be effec- to the Steyns. The Steyns relied on Shi- public interest demands that there be an tive. A party will thus be able to escape fren and that the settlement agreements end to litigation and thus the settlement from the shackles of Shifren when public could not have been seen as variations agreement cannot be ignored, as this policy demands. of the original agreements. The question would bring an end to the pending liti- before the court was ‘whether or not the gation. Secondly, public policy demand second settlement agreement should en- that parties to a dispute avoid litigation joy efficacy and primacy over the original and resolve their differences amicably. Anye Jansen van Rensburg LLM agreement and defeat the claim’. Thus in Thirdly, pacta sunt servanda would be (Stell) is an attorney at Schoeman short if the Shifren principle should be violated if the settlement agreement was Tshaka attorneys in Cape Town. enforced. ignored as it related not only to the origi- q

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RS024/15 Redundant or relevant? The law of unjustified enrichment

By Nokubonga Fakude

njustified enrichment and the action of the unauthorised Uadministrator are legal principles that have become redundant in our law, as opposed to legal doctrines capable of survival. In this article, I will discuss: • How unjustified enrichment, for practical purposes, should not be recognised as an independent cause of action, separate from the law of contract and the law delict and, in certain circumstances, criminal law and property law. • The Roman Dutch Condictiones as infiltrated into our law of unjustified enrichment, in light of the fact that there is no general enrichment action recognised in our law. • Why the actio negotiorum gestio (action of the unauthorised administrator) has no place in South African law. Justice is a concept of moral rightness based on rationality and fairness. Its aim is to balance the interests of individuals and provide restitution where necessary. Aristotle makes a distinction between distributive justice and cumulative justice. Distributive justice assigns wealth and benefits to individuals, it is then left to cumulative justice to remedy any interference with such fair distribution of wealth. Therefore, breach of contract, delict, crime and ‘unjustified enrichment’ are interfer- ences sought to be remedied through cumulative justice. Unjustified enrichment Unjustified enrichment is where one person receives a benefit or value from another at the expense of the latter without any legal cause for such receipt or retention of the value or benefit by the former. Therefore the elements that should be present before liability can be found under unjustified enrichment are – • enrichment of the defendant; • impoverishment of the plaintiff; • a connection between such enrichment and impoverishment; • no legal justification for such enrichment and impoverishment; and • ‘absence of any other remedy in law’. With reference to the averments of Ernest J Weinrib in his book Corrective Justice (Oxford: Oxford University Press 2012) at 11, the transfer of value or a benefit under unjustified enrichment with regard to the enrichment and expense requirement, establishes the required relationship between the trans- feror and transferee (ie, enrichment has been moved from the plaintiff to the defendant). These requirements are dependent Picture source: Gallo Images/iStock source: Picture

DE REBUS – APRIL 2015 - 36 - CANDIDATE ATTORNEY FEATURE on each other in order to establish liabil- distinct contractual remedy’ (my italics). blameworthy conduct with resultant loss ity and are structured by immediacy in • Secondly, the conception of an as- causally linked to the conduct of the de- the ambit of liability; immediacy in the sumption of a future event appears to be fendant (Broodryk v Smuts No 1942 TPD transfer and in the relationship between a suspensive condition in terms of a con- 47). the parties involved, preventing liability tract and, therefore, should be regulated The condictio sine causa specialis from being too remote or too restrictive. by the law of contract and not the law of It is on this remoteness that I submit that unjustified enrichment. According to Wille’s Principles of South African law 9th ed (Juta: Cape Town liability under unjustified enrichment is The condictio ob turpem vel iniustam not a clear and practical cause of action. 2007) at 1055, this action is mainly ap- causam plied in circumstances where none of the The condictio indebiti This action is used when performance other above mentioned condictiones can This action applies in the case of pay- was rendered in terms of an illegal agree- find application. It is also used where ments made under duress and payments ment in that its conclusion, performance value is transferred for a valid cause, or transfers made erroneously. The re- or object is contrary to the law or against which cause later falls away. In South quirements for this action are – good morals and public policy. The aim African law, there are three instances • transfer must have taken place; of this action is to allow the aggrieved under which this action will find appli- • transfer must have taken place without party who is barred by the void agree- cation: any legal obligation for the transfer; ment to bring a claim on the basis of • Where a party performs in terms of a • transfer was made in the belief that the the ‘void agreement’. With this in mind, contract and a supervening impossibil- transfer was due, or it must have been it is worth mentioning that the law will ity makes it such that the other party’s made under duress or by a person of not usually assist an individual who has obligation is extinguished. A feasible so- limited legal capacity; been engaged in an illegality, except in lution in this case would be for the inclu- • this action is only available against the cases where public policy dictates other- sion of a force majeure clause in every recipient of value or transfer only and no wise – this is also in terms of par delic- contract that parties conclude. With such one else. tum rule. inclusion in the contract, the parties can- In my opinion, this action is not neces- In Henry v Branfield 1996 (1) SA 244 not claim that the event was entirely un- sary in our law. Any person who attains (D), a case concerned with the conclu- foreseen or avoidable. Therefore, rules and retains value in the manner set out sion of an oral contract in contravention of contract law apply. Alternatively an above should be guilty of the criminal of- of s 2(1) of the South African Exchange arbitration clause can give an arbitra- fences of intimidation and theft. Intimi- Control Regulation 1961, the court held tor the power of amiable compositeur. dation is defined in s 1(1)(a) – (b) of the that payment in terms of this agreement As amiable compositeur, the arbitrator Intimidation Act 72 of 1982, as amend- could not be reclaimed in that the court has the power to handle the particular ed, and includes acts of unlawfully com- ought not enforce a contract that per- circumstances by judicious departure pelling or inducing any person of a par- petrates illegal acts. Furthermore, the from the strict law without creating a ticular nature, class, kind or persons in par delictum rule should not be relaxed precedent. general to do or abstain from doing any where such relaxation will signal any en- • Where the property of the plaintiff has act or to assume or to abandon a particu- couragement to break the law. been consumed or alienated by someone lar stand point. Theft consists of unlaw- In addition, there is doubt within the else, here the laws of property apply; the fully appropriating moveable corporeal law of unjustified enrichment, as to the plaintiff may make use of the rei vindica- property belonging to another with the necessity of such an action particularly tio. To succeed with the rei vindicatio, in intent to deprive the owner permanently pertaining to the restitution of value terms of Chetty v Naidoo 1974 (3) SA 13 of the property. Therefore, the rules of that was transferred in terms of an il- (A), the plaintiff must prove that he or criminal law should apply in the recov- legal agreement. If the illegal agreement she was in lawful control of the thing at ery of the property or value in question. is void, it cannot give rise to any obliga- the time of the institution of the action. tions. Therefore, the transfer failed to The condictio causa data causa non • Where the bank made payment in terms fulfil an obligation, as there was no obli- of a countermanded or forged cheque. secuta gation to begin with, on which the trans- These cases should be treated as for- This action is used where property has fer was made. Therefore, this falls within gery, uttering or fraud respectively. Also been transferred and the purpose of the the sphere of the condictio indebiti, mak- taking into account whether the bank in transfer has fallen away. This occurs in ing the condictio ob turpem vel iniustam these cases has been indemnified or not. instances where the transfer was sub- causam redundant. A general enrichment action ject to a modus and then the modus is As for those transfers made under du- later disregarded. Alternatively, where ress or undue influence which, under the One of the most problematic areas of transfer took place on the basis of an law of unjustified enrichment, should be the law of unjustified enrichment is the assumption that a particular event will brought through this action: absence of a general enrichment action. take place in future, and that event does • Where such undue influence or du- This principle was reiterated in Nortje en not take place. With this in mind, I make ress is aimed at eliciting the other party ’n Ander v Pool NO 1966 (3) SA 96 (A) the following two submissions: into entering into a contract in terms where the majority of the court held that • Firstly, in the case of the modus, where of which performance or value is to be there is no general enrichment action, the claim is based on a transfer that took transferred, then a claim based on this and that there is no evidence of the exist- place following the cancellation of a con- should be brought on the basis of law of ence of a general enrichment action un- tract, it seems to be generally accepted contract, (ie, rescission of the contract). der Roman Dutch law. In McCarthy Retail that the claim should be brought by way This was recognised as a ground for re- LTD v Shortdistance Carriers CC 2001 (3) of contract and not unjustified enrich- scission by the Supreme Court of Appeal SA 482 (SCA), the court held that when a ment. (Louis F van Huyssteem Contract in Plaaslike Boeredienste (edms) BPK v general enrichment action is finally rec- law in South Africa (Netherlands: Kluwer Chemfos BPK 1986 (1) SA 819 (A). ognised in South African law it should be Law International BV 2010) at 76 – 79). In • Where undue influence or duress was subsidiary to the traditional enrichment Baker v Probert [1985] 2 All SA 263 (A) at aimed at eliciting transfer, not by way actions (as discussed above). What ap- para 12 the court held that ‘cancellation of a contract, then a claim based on this pears to be a problem here is the lack of of a contract for breach is not a condictio ground must be brought by way of the legal certainty caused by the absence of … that the claim is to be regarded as a law of delict, as this is wrongful and such general enrichment action, which is

DE REBUS – APRIL 2015 - 37 - CANDIDATE ATTORNEYFEATURE one of the reasons I submit that unjusti- this case means that the benefit has been (c) may consider foreign law’. fied enrichment has no place in our law integrated into the entitlements of the With this is mind, it is worth taking and is not a solid doctrine on which rem- defendant and just like the cleanliness into account that English law, which in- edies should be sought. in the shoes in the above example, can- fluences South Africa’s procedural law, not be severed from the shoes, so will a does not recognise the actio negotiorum Action of the unauthorised benefit that has been entangled with the gestio as part of its legal system. In the administrator entitlements of the defendant. English case of Nicholson v Chapman Eyre (1793) 2 H BI 254 (Court of the Com- The gist of this principle is that the Therefore, the only instance that the mon Pleas) the court stated that a gen- Gestor (administrator) administers the defendant can be held liable with regard eral right of recovery under this action affairs of the Dominus (owner) without to an entangled benefit is when he has will encourage ‘willful attempts of ill-de- the latter’s consent but in the interest of accepted it as non-donative. In opin- signing people to turn floats and vessels the latter. This is, however, not an enrich- ion, ‘non-donative’ requires conduct: adrift, in order that they may be paid for ment action, it is an independent source (a) Commission (in that the defendant finding them’. It is by these submissions of obligations. Ernest J Weinrib in his knowingly accepts a benefit that he is that I tender that the actio negotiorum abstract Corrective Justice (op cit) at 11 neither entitled to neither receive nor gestio does not have a place in our law. submits that for value to move, the en- retain). Proving the presence of conduct riching action must be directed at what by commission in this regard will be a Conclusion belongs to the defendant, if the purpose question of fact, taking into account all The law of unjustified enrichment and of the action is directed at what belongs surrounding circumstances. Therefore the action of the unauthorised adminis- to the plaintiff, value remains with the acting (b) wrongfully and (c) causing loss trator are unnecessary remedies in our plaintiff although the action brought a or ‘damage’ to the plaintiff, this satisfies law. From what I have submitted above, benefit to the defendant. In other words the requirements for a delict, and a claim the two actions lack legal certainty. Our value has been entangled with the enti- should be brought by way of a delictual current laws of property, delict, contract tlements of the defendant. claim. Where the benefit remains disinte- and criminal law are sufficient to pro- Lord Chief Baron Pollock stated: ‘One grated with the entitlements, the defend- vide legal remedies for the circumstanc- cleans another’s shoes; what can the oth- ant must make restitution in terms of es illustrated above. er do but put them on? …’ Therefore ser- public policy, failure of which will result vice cannot be rejected without rejecting in a delict. the thing owned in its entirety (Weinrib Section 39 of the Constitution pro- at 17). Thus in these circumstances de- vides that: ‘When interpreting the rights manding restitution of a benefit or value in the Bill of Rights, a court, tribunal or Nokubonga Fakude LLB (UJ) is a would mean compelling the owner to forum – candidate attorney at Mauritz Brey- make restitution for the value of shoes (a) … tenbach Attorneys in Johannesburg. he owns whose condition were changed (b) must consider international law; q without his consent. Entanglement in and

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DE REBUS – APRIL 2015 - 38 - LAW REPORTS THE LAW REPORTS

February 2015 (1) South African Law Reports (pp 315 – 627); [2015] 1 All South African Law Reports January no 1 (pp 1 – 119) and no 2 (pp 121 – 259); 2014 (12) Butterworths Constitutional Law Reports – December (pp 1397 – 1513)

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

Abbreviations: ‘all outstanding credit agree- and interest. The appellant conclude credit agreements ments’ exceeds the thresh- contended that the acknowl- of under at least 100 in num- CC: Constitutional Court old prescribed in terms of edgment of debt was a credit ber. It did not refer to a sin- EqC: Equality Court, Western s 42(1), being the amount of agreement and further that gle principal debt or a single Cape Division R 500 000. The consequences the respondent was a credit credit agreement in respect of GJ: Gauteng Local Division, of failure to register where provider who was required to which the amount exceeded Johannesburg such is required are, as pro- register but had not done so. the threshold. It was the total GP: Gauteng Division, vided for in s 89, that the Therefore, it was agreed that, principal debt under ‘all out- Pretoria agreement would be unlaw- the agreement was unlawful standing credit agreements’ ICC: International Crime ful and void and as a result and void. The GP per Kolla- that triggered an obligation to Court the credit provider would be pen AJ granted judgment in register as a credit provider. NWM: North West Division, required to refund the con- favour of the respondent. An It was the credit provider’s Mahikheng sumer payments received in appeal to the full Bench was frequency of providing credit SCA: Supreme Court of terms of the agreement, to- dismissed with costs. that was envisaged. The sec- Appeal gether with interest. Legodi J (Fabricius and tion had to be seen as being WCC: Western Cape Division, In Friend v Sendal 2015 (1) Kubushi JJ concurring) held directed at those persons Cape Town SA 395 (GP) the appellant, that the acknowledgment of who were in the credit mar- Consumer credit Friend, signed an acknowl- debt in question was a credit ket or intended participating edgment of debt in terms agreement that did not auto- in it. The respondent’s once- agreements of which he admitted his in- matically make the respond- off transaction could not be A once-off credit agreement debtedness to the respondent a credit provider who was seen as participating in that does not require the credit ent, Sendal, in the amount of required to register in terms market. provider to register: Section some R 1,2 million. He further of s 40. Section 40(1) envis- 40(1) of the National Credit undertook to repay the capi- aged registration of a credit Criminal law Act 34 of 2005 provides tal amount, together with in- provider in a situation where Dolus eventualis: In S v Hum- among others that a person terest, in instalments within a person frequently con- phreys 2015 (1) SA 491 (SCA) must register as a credit pro- a period of 12 months. When cluded credit agreements as the appellant, Humphreys, vider if that person is a credit he defaulted in payment the defined. The subsection con- was charged with and found provider under at least 100 respondent instituted pro- templated a situation where guilty on ten counts of mur- credit agreements or the to- ceedings for recovery of the a credit provider, either alone der and four of attempted tal principal debt owed to balance outstanding, being or in conjunction with any murder and sentenced to 20 the credit provider under the amount of R 620 000 associated person, would years of imprisonment by

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DE REBUS – APRIL 2015 - 39 - Henney J in the WCC. That sonably be inferred that the language took the place of use of all 11 languages for was after a minibus taxi car- appellant could have thought the Dutch language, the Con- all purposes. On the con- rying school children collided that the possible collision he stitution of 1961 (Republic of trary in s 6(3)(a) the Consti- with a train at a level cross- subjectively foresaw would South Africa Constitution Act tution permitted the use by ing. As the driver of the mini- not actually occur, the second 32 of 1961, s 119) and that the national and provincial bus, the appellant, overtook a requirement of dolus eventua- of 1983 (Republic of South governments of any particu- queue of vehicles waiting for lis would not have been es- Africa Constitution Act 110 lar official languages for the the train to pass, ignored the tablished. In the instant case of 1983, s 99(2)) contained ‘purposes of government’, red flashing lights and passed the inference that the appel- similar provisions. However, provided that they should through boom gates by ma- lant foresaw that the possible this is not the case under the use at least two official lan- noeuvring around them as collision would not occur was present Constitution which guages. The fact was that the they were staggered on either not only a reasonable one but in s 6(1) provides for 11 of- Constitution expressly per- side of the road. Evidence was indeed the most prob- ficial languages being Sepedi, mitted the use of only two showed that on two previous able one. In short, the appel- Sesotho, Setswana, siSwati, official languages for cer- occasions he successfully ne- lant foresaw the possibility of Tshivenda, Xitsonga, Afri- tain purposes, thereby sanc- gotiated that deadly manoeu- the collision but thought that kaans, English, isiNdebele, tioning by necessary implic vring but that was not to be it would not happen, as was isiXhosa and isiZulu. Signifi- ation discrimination against so on the third occasion. the case on two previous oc- cantly, there is a catch here the other official languages. His appeal to the SCA was casions. Therefore, he took a since s 6(4) provides that all The inevitable conclusion partially successful. The risk, which he thought would official languages must enjoy was that to the extent that convictions of murder were not materialise. parity of esteem and must be the practice of publishing na- changed to culpable homi- NB. It should be noted that treated ‘equitably’. It cannot tional legislation in only two cide and those of attempted the approach of the SCA to be over-emphasised that they official languages could be murder set aside as there the second leg of the inquiry are required to be treated ‘eq- considered discriminatory, was no offence of attempted is not convincing at all as it uitably’ and not ‘equally’. such discrimination was fair. culpable homicide in South looks at the conduct of the In Lourens v Speaker of the African law. The sentence appellant with hindsight National Assembly and Oth- Fundamental rights was reduced to eight years of rather than foresight. Surely ers 2015 (1) SA 618 (EqC) the Freedom of expression: By- imprisonment, effective from the appellant foresaw the applicant, Lourens, sought law 9(h) of the Outdoor Ad- the date when he started serv- collision as a possibility. The among others a court order vertising Bylaws of the City ing the High Court sentence. question is – what did he do declaring that Parliament of Johannesburg Metropoli- Brand JA (Cachalia, Leach JJA, to ensure it did not occur? He was unfairly discriminating tan Municipality (the City), Erasmus and Van der Merwe reconciled himself with the against official languages promulgated in the Provincial AJA concurring) held that the possibility of that eventual- other than English, which he Gazette Extraordinary 277 on test for dolus eventualis was ity materialising and took a alleged was treated as ‘super 18 December 2009 provides twofold namely – great gamble with the life of official language’, by not pub- among others that ‘no person • did the accused, being the his passengers in the hope lishing all national legislation may erect, maintain or dis- appellant in the instant case, that as he got away with it on in all 11 official languages. He play any advertising sign that subjectively foresee the pos- two previous occasions that also sought an order to the is indecent or suggestive of sibility of the death of his would be the case once more. effect that after publication indecency, prejudicial to pub- passengers ensuing from his Accordingly he reconciled in all 11 languages, legislation lic morals, or is insensitive conduct; and himself with the possible oc- should be certified as correct to the public or any portion • did he reconcile himself currence of the collision were for use in courts. The applica- thereof or to any religious or with that possibility? anything to go amiss, and it tion was dismissed, with no cultural group’. In BDS South Regarding the first leg did. order as to costs as none of Africa and Another v Conti- of the enquiry it was held the respondents sought an nental Outdoor Media (Pty) that the WCC was correct in Equality legislation order for costs against the Ltd and Others 2015 (1) SA finding that in the circum- No constitutional or statu- applicant. 462 (GJ); Boycott, Divestment stances of the case the ap- tory duty on Parliament to The EqC held, per Griesel J, and Sanctions South Africa pellant foresaw the death of publish legislation in all 11 that the Constitution did not and Another v Continental his passengers as a possible official languages: Section provide that because there Outdoor Media (Pty) Ltd and consequence of his conduct. 137 of the South Africa Act, were 11 official languages, all Others [2014] 4 All SA 347 No person in his or her right 1909, being British legisla- of them should always and (GJ) a part only, and not the mind would avoid recognition tion which created the Union for all purposes be treated whole of the bylaw, was chal- of the possibility that a colli- of South Africa in 1910, pro- equally. If equal treatment of lenged. That part was the one sion between a motor vehicle vided that both English and all 11 official languages for all dealing with prohibition of and an oncoming train would Dutch languages were the purposes were intended, one advertising that was ‘insensi- have fatal consequences for official languages of South would have expected to find a tive to the public … or to any the passengers in the vehi- Africa and had to be treated clear provision to that effect, religious or cultural group’. cle. Regarding the second leg on a footing equality, pos- similar in content to the em- The constitutional challenge of the enquiry the test was sessing and enjoying equal phatic and unambiguous pro- arose after an advertisement whether the appellant took freedom, rights and privileg- visions of s 137 of the South put up by the applicant, Boy- the consequences that he es. All records, journals and Africa Act, 1909. Instead s 6(4) cott, Divestment and Sanc- foresaw into bargain, namely proceedings of Parliament of the Constitution simply tions South Africa (BDSSA) on whether it could be inferred were required to be kept in pro vid ed that all official an outdoor billboard owned that it was immaterial to him both languages as were all languages should enjoy par- and operated by the first re- whether those consequences Bills, Acts and notices of gen- ity of esteem and be treated spondent, Continental, was would flow from his actions. eral importance or interest ‘equitably’. Furthermore, the removed during the currency Conversely stated, the prin- issued by the government. Constitution did not require of its flight. The advertise- ciple was that if it could rea- Save to say that the Afrikaans the simultaneous and equal ment was pro-Palestine and

DE REBUS – APRIL 2015 - 40 - LAW REPORTS anti-Israel and complained expression had to reach the effect that private parties had the residents. If the contrac- about alleged illegal occu- level of one of the categories a constitutional duty to pro- tor transgressed, the state pation by Israel of Palestin- in s 16(2) of the Constitution vide access to adequate hous- could claim damages or spe- ian territory. As a result of (or the unchallenged portions ing and the other to the effect cific performance against complaints by members of of bylaw 9(h) of the bylaws), that arbitration proceedings same. the Jewish community, and before it could be prohibited had lapsed due to inordinate because of the provisions of by legislation or bylaw. Ac- delay in finalising them. The Insolvency bylaw 9(h) the advertisement cordingly, even if the adver- application was dismissed Irregular valuation of assets was removed. The applicant tisement was ‘controversial’ with costs. done without doing physical approached the GJ for an or- it could only be prohibited on Mantame J held that no- inspection: In Ex Parte Eras- der declaring the impugned the basis of one of the consti- where in s 26 did the legis- mus and Another 2015 (1) SA provisions of the bylaw incon- tutional limitations. lature attempt to delegate 540 (GP) the applicants, Mr sistent with the Constitution the state’s constitutional and Mrs Erasmus who were and therefore invalid as they Individuals and private enti- obligation to individuals or married in community of infringed its right to freedom ties do not have constitution- private parties. For the court property, made an applica- of expression. The applicant al duty to provide right of to be asked by the applicant tion for voluntary surrender also sought reinstatement access to adequate housing: to impose additional consti- of their joint estate. However, of the advertisement against Section 26(1) of the Constitu- tutional obligations on the their application had a num- payment as provided for in tion provides that ‘everyone first respondent would be ber of unsatisfactory features the rental agreement between has the right of access to ad- tantamount to over-regulat- particularly in respect of the the parties. The application equate housing’ while subs (2) ing a building industry that conduct of their attorney and was granted with costs, the provides that ‘the state must had been well regulated. The valuator. For example, the court suspending the period take reasonable legislative burden imposed by the Con- attorney alleged in the pa- of invalidity of the bylaw for and other measures, within stitution, particularly s 26(1), pers that his costs had been 12 months. In the meantime its available resources, to could not be extended to in- ‘taxed’ even though taxation the bylaw had to be read as achieve the progressive reali- dividuals or private parties. thereof was only to follow in not containing the impugned sation of that right’. The main The court could not make a due course. When confronted provision. Furthermore, if the issue in the City of Cape Town finding that it was an implied with the issue he explained City were to fail to remove the v Khaya Projects (Pty) Ltd and term of the first and second that the allegation was a ‘typ- offending provisions, same Others 2015 (1) SA 421 (WCC); respondents’ contract that ing error’. The valuator did would automatically be re- City of Cape Town v Khaya the units to be built would valuation of the applicants’ moved, as per the court or- Projects (Pty) Ltd and Others constitute ‘adequate hous- movables, which prima facie der, after the elapse of the 12 [2015] 1 All SA 81 (WCC) was ing’ in terms of s 26(1). Since appeared to have been done month period. whether the duty of the state the state had a constitutional without physical inspection. Mayat J held that the words to provide adequate hous- obligation to deliver service He subsequently explained ‘or is insensitive to the public ing also extended to private to the people in the form of that he did his valuation on … or to any religious or cul- parties. The applicant, City low-cost housing, it had to the basis of a list of assets tural group’ as contained in of Cape Town, through the tighten the screws to ensure prepared by the applicants bylaw 9(h) went beyond the erstwhile Blaauwberg Mu- that houses built by contrac- who indicated the condition limitation of permitted free nicipality, commissioned the tors were suitable for digni- of each item, its age and a speech in the Constitution second respondent, a con- fied human habitation and photograph and expressly and were, therefore, incon- sultant, to develop a low-cost that they passed the muster. confirmed that he did not do sistent with it. Those words housing project for homeless If they did not the applicant physical inspection of the as- set a far lower boundary than residents. After completing should not issue occupational sets. any of the specific limitations its work, the second respond- certificates for occupation by The application for sur- contained in s 16(2) of the ent entered into a contract Constitution. In other words with the first respondent, the limitations in ss 16(2) Khaya Projects, to build the and 36(1) of the Constitution required residential units. went far beyond the notion of However, the first respond- ‘insensitivity’ towards a por- ent did an unsatisfactory job tion of a religious or cultural with the result that the units group. Unlike the limitations were full of defects ranging to free speech contained in from poor foundations, leak- s 16(2), which included prop- ing roofs to fire hazards. As aganda for war, incitement provided for in the contract, of imminent violence or ad- the dispute about the quality vocacy of violence against a of work done, as well as pay- particular race or religion, ment to be made was referred and unlike the other limita- to arbitration. However, ar- tions in bylaw 9(h) suggestive bitration proceedings, which of indecency or prejudice to should have been completed morals, ‘insensitivity’ was a within four months, dragged manifestly subjective feeling. on for years. As an interested It had the result that some person, and in order to be members of a particular reliable to blacklist in the future gious or cultural group could contractors who did not do subjectively feel or not feel a good job, the applicant ap- that certain expressions of proached the High Court for speech were ‘insensitive’. An two declarators, one to the

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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.

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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 LAW REPORTS render of the estate was dis- or her proxy had to confirm the benefit of such persons ers as Amici Curiae) 2014 missed, the court describing in the affidavit that he or she and the well-being of society. (12) BCLR 1428 (CC) where in the conduct of both the at- was present when the assets Since the advent of democ- March 2007 Zimbabwean po- torney and valuator as un- were viewed and that he or racy and a society founded lice raided the headquarters professional. The attorney she pointed out the assets to on human rights as well as a of the main opposition party, was ordered to repay all fees the valuator. concern for the welfare of its the Movement for Democratic and other moneys received citizens generally, it was not Change (MDC) in Harare, Zim- from the applicants immedi- No waiver of protection in the interest of the state babwe. In that raid more than ately, proof of which was to given to certain property: that citizens should renounce 100 people were taken into be presented to the Registrar In terms of the Insolvency their assets and become a custody and during their de- of the court within five days. Act 24 of 1936 (the Act) in burden to society. Taking into tention were subjected to se- The application was referred s 82 (1) the main task of the account the vital importance vere torture, which included to the law society having ju- trustee of an insolvent estate of the inalienable right to hu- beating with iron bars and risdiction with a request that is to collect assets, sell them man dignity of the applicants baseball bats, waterboard- the attorney’s conduct be in- and pay creditors a dividend. and indeed whatever depend- ing, forced removal of their vestigated. The valuator was However, in terms of s 82(6) ants they could be having as clothing and the like. After also ordered to repay all fees of the Act certain property well as the right to work or some of them came to South and moneys received from of the insolvent is protected trade, coupled with the pur- Africa the first respondent, the applicants or the attorney and is therefore not permit- pose of excepting basic ne- the Southern African Hu- and thereafter provide proof ted to be sold. Very briefly cessities, the applicants were man Rights Litigation Centre thereof to the Registrar of the the section provides among not allowed to waive their and the second respondent, court within five days. others that from the sale of entitlement. There was also Zimbabwe Exiles’ Forum did Bertelsmann J held that the movable property of the the practical inference that if some investigating, gathered practitioners who launched insolvent ‘shall be excepted the applicants for voluntary information and prepared a applications for voluntary wearing apparel and bedding surrender should waive the torture docket that was pre- surrender had been warned … and the whole or such part entitlement in question that sented to the applicant, the repeatedly against dubious of his household furniture, was in indication that the ad- National Commissioner of the practices. In the instant case, and tools and other essential vantage to creditors was bor- South African Police Service it was self-evident that the means of subsistence as the derline. In general a dividend (the National Commissioner) valuation was completely creditors or the Master may of 20 cents in the rand was requesting that allegations of unacceptable. It lacked any determine and the insolvent required. In the instant case if crimes against humanity of semblance of an independ- is allowed to retain, for his the waiver was left aside the torture which took place in ent confirmation that the as- own use, any property so ex- applicants would not have Zimbabwe be investigated. If sets existed. No professional cepted from the sale’. made out a case that the sur- successful the investigations assessment of the assets’ al- In Ex Parte Kroese and An- render of their estate, offer- could result in prosecution of leged value had taken place. A other 2015 (1) SA 405 (NWM) ing a dividend of 14 cents in alleged transgressors if they valuator’s contribution to an the applicants, Mr and Mrs the rand, would be to the ad- happen to be in South Africa application for voluntary sur- Kroese who were married in vantage of the creditors. or their extradition if they render, and indeed any foren- community of property, ap- were not. The National Com- sic exercise, depended on for plied for surrender of their International missioner declined to inves- its admissibility as opinion joint estate. They waived the criminal law tigate, mainly because of the evidence on the indisputable protection afforded by the policy of non-intervention in independence of the expert. section with the result that Duty to investigate inter- Zimbabwe’s internal affairs The applicant who purported- if the surrender were to be national crimes against hu- but also because the alleged ly provided the list of assets accepted, the trustee would manity of torture commit- transgressors who included and other information was no sell all their movable assets ted beyond the borders of six cabinet ministers, direc- expert and was hardly able to including household furni- South Africa: Section 4(3) of tors-general and high rank- provide information regard- ture and other appliances. the Implementation of the ing official of Zimbabwe’s ing the age and condition of The purpose was to increase Rome Statute of the Interna- ruling party, the Zimbabwe the assets for purposes of val- the dividend available to tional Criminal Court Act 27 African National Union, Pa- uation thereof. It had always creditors to 20 cents per rand of 2002 (the Act) provides triotic Front (Zanu PF) were been an obvious principle, al- owing whereas without that among others that any person not present in South Africa. beit unwritten, that the valua- waiver the dividend would who commits a crime contem- As a result the respondents tor should personally inspect be 14 cents per rand. The ap- plated in the Act outside the approached the GP and ob- assets that were required to plication for surrender of the territory of South Africa is tained an order reviewing and be valued. estate was dismissed. deemed to have committed setting aside the decision of The Deputy Judge President Landman J held that the it in this country if such per- the National Commissioner of the GP, having given ap- purpose of s 82(6) was clear. son, after commission of the not to investigate. An appeal proval, the court laid down as It included measures that crime, is present in the coun- to the SCA was unsuccessful a formal rule of practice that were intended to preserve the try. The application of the as that court held that the a valuator in application for right to life and dignity of an section fell to be determined National Commissioner was voluntary surrender should insolvent and his or her de- in National Commissioner of empowered to investigate confirm under oath that he or pendants and to place them Police v Southern African Hu- and accordingly ordered him she had personally inspected in a position to rebuild their man Rights Litigation Centre to do so. In a further appeal the assets that were referred lives. The right to dignity and Another 2015 (1) SA 315 to the CC leave to appeal was to in the valuation. In such was one of the human rights (CC); National Commissioner granted and the appeal dis- affidavit the date, time and that were inalienable. The of the South African Police missed with costs. locality at which the assets Act and other legislation that v Southern African Human Reading a unanimous judg- were inspected had to be set provided for the protection Rights Litigation Centre and ment of the court Majiedt AJ out and the applicant or his of debtors were enacted for Another (Dugard and Oth- held that a primary purpose

DE REBUS – APRIL 2015 - 43 - of the Act was to enable the an international crime com- Another [2014] 3 All SA 538 AB applied to the WCC, prosecution, in South Afri- mitted outside the country’s (SCA) the parties, AB the hus- Cape Town for a review and can courts or the Interna- territory could occur in the band and CB the wife, were setting aside of the court or- tional Criminal Court (ICC), absence of a suspect without married out of community of der on the grounds that the of persons accused of hav- offending the Constitution property. Thereafter AB, the magistrate committed ‘gross ing committed atrocities, or international law. Requir- first respondent, instituted irregularity’ by not postpon- such as torture, beyond the ing the presence of suspects divorce proceedings against ing the hearing mero motu borders of South Africa. Tor- in South Africa for an inves- CB. The hearing of the mat- and proceeding in his ab- ture, whether on the scale of tigation would render nuga- ter was postponed a total five sence. Goliath J and Cloete crimes against humanity or tory the object of combating times, three of which were AJ granted the review appli- not, was a crime in South Af- crimes against humanity. at the instance of AB who cation with costs against AB rica in terms of s 232 of the Furthermore, any possible needed legal representation. and the magistrate. An appeal Constitution as the custom- next step that could arise as On the other two occasions against the WCC order was ary international law prohibi- a result of an investigation, postponement was granted upheld with costs by the SCA. tion against torture had the such as prosecution or an to give AB’s legal representa- Mhlantla JA (Mthiyane DP, status of a peremptory norm. extradition request, required tives the opportunity to fa- Lewis, Wallis JJA and Legodi The contention that the Na- an assessment of informa- miliarise themselves with the AJA concurring) held that tional Commissioner had no tion that could only be at- facts of the case. On the fifth the finding of the High Court duty to investigate as the tained through investigation. occasion when the hearing in finding that the failure to suspects were not present in In the case of Zimbabwe, as was postponed to a specific postpone the trial consti- South Africa was correct only it shared a border with South date the magistrate, the ap- tuted a gross irregularity was in relation to prosecution. Africa, the possible presence pellant Pangarker, warned disturbing as it was not sup- Section 35(3)(e) of the Con- of the suspects in the future AB that on the next occasion, ported by the facts. Further- stitution required an accused could not be discounted. the sixth, the hearing would more, the High Court failed person to be present during proceed without him having a to appreciate the principles his or her trial but did not Practice legal representative if he did applicable in respect of post- require a person’s presence Refusal of postponement not solve the problem in time. ponement and recusal appli- AB secured the services of an during investigation. Accord- is not gross irregularity: In cations. In the instant case attorney, one D, who was dou- ingly, the exercise of univer- Magistrate Pangarker v Botha there was one application ble-briefed as he had commit- sal jurisdiction for the pur- and Another 2015 (1) SA 503 before the magistrate, which ment elsewhere on the same poses of the investigation of (SCA); Pangarker v Botha and was recusal, and it was prop- date. As a result, but without erly dismissed. When AB left communicating with CB’s le- on his own volition he elected gal representatives, D wrote not to participate in the pro- the appellant a letter asking ceedings. There could have for postponement because been no doubt that he knew of his other commitment on of the consequences of doing the scheduled date. The ap- so as they had been explained pellant replied that she could to him. The unavailability of only see legal representatives a legal representative was not for both sides at the same time if arrangements could be necessarily a basis for post- made for such a meeting. No ponement of a matter. On such meeting was arranged. the facts of the present case At the hearing of the matter there was no basis for the on the sixth occasion AB ap- magistrate to postpone the peared without his attorney trial in vacuo. Also the High D. He informed the court that Court failed to consider CB’s D instructed him to read into competing right to have the LegalServe is an authenticated electronic document the record an application for dispute settled swiftly. It was exchange solution between attorneys. recusal of the appellant as the evident that AB had ample presiding officer and thereaf- opportunity to obtain a legal LegalServe is a web interfaced solution that will:- ter leave the court. The ap- representative and prepare • Facilitate the exchange of documents for trial. Accordingly, his lack • Provide a full audit trial where you can see whether the pellant advised AB that the of legal representation could receiving party has in fact, viewed, downloaded or forwarded hearing would proceed in his the document absence if he left and the rec- not be a basis for a finding of • Issue an authenticated time and date stamp of each serve usal application were to fail any ‘gross irregularity’ on the • Provide access, anytime, anywhere to even the most remote whereas if it were granted the part of the magistrate. areas The court added that the • Constant backup of all documents on the system hearing would be postponed. • Fully compliant with all the Rules of Court Thereafter, AB read the recus- conduct of the attorney D was • Reduce your current document delivery and / or al application into the record improper in that he directed correspondent cost significantly and left the court. The refusal a letter seeking postpone- LegalServe is building a national footprint with our LegalServe application was successfully ment to the magistrate and Serve Centre’s that will allow you to have court documents filed opposed by CB’s legal repre- also took instructions in two or delivered on your behalf via a Serve Centre in almost any sentative. As a result the trial matters in different courts, jurisdiction. proceeded in the absence of which were to be heard on the 062 278 5153 086 551 1503 AB, a decree of divorce was same date. As D had in the [email protected] www.legalserve.co.za granted with costs and AB or- meantime been appointed as dered to forfeit a part of the a magistrate, it was directed marriage benefits. that a copy of the judgment

DE REBUS – APRIL 2015 - 44 - LAW REPORTS should be sent to the Magis- permanently ceased, the ser- Fund’ in relation to financial appreciated in their entirety. trates’ Commission for infor- vitude itself would become products violated its trade- The phrases ‘escalator funds’ mation. extinguished. However, in the mark ‘Escalator Funds’ the and ‘escalating fund’ were instant case the court was applicant sought an interdict not distinctive but merely Servitudes able to find either on the evi- prohibiting the respondent descriptive of the financial dence presented or on the ba- from using a trademark that services products, more par- Cancellation of praedial ser- sis of judicial notice, that the was confusingly similar to its ticularly the risk nature of the vitude due to cessation of preference or need for secu- own. In a counter-application product being offered. its utility or abandonment: rity and privacy was so perva- the respondent sought ex- In Pickard v Stein and Others sive that the servitude of light pungement of the applicant’s Other cases 2015 (1) SA 439 (GJ); Pickard had for those reasons per- trademark on the ground that Apart from the cases and ma- v Stein and Others [2014] 3 manently lost its utility. Fur- ‘Escalator Funds’ was not dis- terial referred to above the All SA 631 (GJ) the applicant, thermore, a servitude could tinctive but only descriptive material under review also Pickard, and the respond- be cancelled as a result of of the product that was being contained cases dealing with ent, Stein, were owners of abandonment. By giving the offered. Accordingly, its reg- access to information held by adjacent properties in a hilly applicant and B the right to istration as a trademark was a private body, asylum appli- area. As the applicant’s prop- build the second wall on top wrong and ought not to have cation, adopted child’s loss erty was on higher ground of the first the respondent been done in the first place. of support claim after the the parties registered a ser- had abandoned her servitudi- The interdict application was death of natural father, child vitude of light in favour of nal right of light. The fact that dismissed and the counter- justice, claim for compensa- the respondent in terms of it later emerged from the land application granted, both tion to doctor raped on duty which the applicant was not surveyor’s report that the with costs. at hospital, claim for consti- allowed to erect structures wall was inadvertently built Goliath J held that the tutional damages that were or grow trees or shrubs that slightly inside the respond- phrases ‘escalator funds’ or never expressed or implied would prevent light reaching ent’s property and not on the ‘escalating fund’ were not in contract, duty of presiding the respondent’s property. boundary as thought, did not distinctive enough on their officer to explain the right to Thereafter the applicant sub- detract from the inference to own to distinguish products legal representation, findings divided his property and sold be drawn from her conduct, from their competitors. The or remedial action by Public a portion thereof to a third particularly given that the phrase ‘escalator funds’ was Protector not binding on per- party B who started build- wall necessarily and naturally entirely descriptive. Deriva- sons and organs of state, in- ing a house. Because of the obstructed the servitude in all tives of the word ‘escalate’ come tax search-and-seizure new house, and for the sake its component. and even the word ‘escalator’ warrants, international arbi- of security and privacy, all were already common in the tration, invalidity of foreign three parties agreed that B Trademarks financial services sector and exchange regulations, laps- should build another bound- Expungement of a trade- ‘escalator’ for financial servic- ing of grocers’ wine licences, ary wall on top of the existing mark that is not distinctive: es or products was not a word reluctance of court to en- one, which was done. Subse- Section 10(2)(a) of the Trade or concept that the applicant force arbitration agreement quently the applicant sought Marks Act 194 of 1993 (the first coined or could claim concerning disputes of a re- cancellation of the servitude Act) provides among others exclusive rights to. The word ligious nature, right of pre- while the respondent wanted that a trademark is liable to ‘escalator’ had been in use in emption established through demolition of part of the new be removed from the trade- other countries in respect of a testamentary disposition, building as well as reduction mark register if it is not ca- financial services products. setting aside decision of In- of the height of the bound- pable of distinguishing the The words ‘escalating’, ‘esca- dependent Communications ary wall as both interfered goods or services of a per- lator’ and ‘fund’ were com- Authority of South Africa, with the servitude of light. son in respect of which it is mon English words. The word tax implications of share op- The question before the court registered or proposed to ‘escalator’ was coined in the tion scheme, tender bid hav- was whether the servitude of be registered generally or, if early 1920s when escalators ing to comply for prescribed light came to an end when the registration or proposed reg- were new. Confusion was not formalities, test for removal second boundary wall was istration is subject to limita- likely to arise in the market of prosecutor and unlawful built on top of the first or had tions in relation to use within place because Discovery’s arrest and detention. been abandoned so as to jus- those limitations. In Discov- ‘Escalator Funds’ trademark tify cancellation of its regis- ery Holdings Ltd v Sanlam Ltd was not confusingly similar tration against the title deed. and Others 2015 (1) SA 365 to Sanlam’s ‘Escalating Fund’ The court granted with costs (WCC) the applicant, Discov- trademark when the two were q an order declaring that the ery, was the registered owner servitude could be cancelled of the trademark ‘Escalator because of its abandonment Funds’. It subsequently found Do you have something that you would like by the respondent. The appli- out that after registration of to share with the readers of De Rebus? cant was to bear cancellation its trademark its direct com- costs of the servitude. petitor, the respondent San- Then write to us. Dodson AJ held obiter that lam, made application for applying s 173 of the Consti- registration of the trademark De Rebus welcomes letters of 500 words or less. tution which required devel- ‘Sanlam Escalating Fund’ and opment of the common law that it had in fact commenced Letters that are considered by the Editorial Committee by the court taking into ac- using the trademark ‘Escalat- deal with topical and relevant issues that have a count the interests of justice, ing Fund/Sanlam Escalating direct impact on the profession and on the public. if the utility that a praedial Fund’. Alleging that usage of servitude previously provided the trademarks ‘Escalating Send your letter to: [email protected] to a dominant tenement had Fund’ and ‘Sanlam Escalating

DE REBUS – APRIL 2015 - 45 - Let Your Legacy Work For Others...

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n anticipation of trial, it is common just before or at the commencement of found that arguments such as the de- practice for the defendant to place trial and the plaintiff continues to rake fendant being a metaphorical Goliath the plaintiff on risk by offering a up costs while he considers the offer. In and those relating to the conduct of the tender in terms of r 34 of the Uni- such an instance, the extent of the spa- defendant prior to trial did not bear any form Rules of Court. In considering tium deliberandi allowed will depend on weight. Sutherland J further noted that Ian appropriate costs order, there are the particular circumstance of the case, the late appearance of the EEG was not three salient factors that will guide the the stage at which the offer is made and a tactical move by the defendant, but court in exercising its discretion: the reasonableness of the plaintiff’s rather a confirmation of the defendant’s • the timing of the tender; conduct thereafter, especially where the case, to which the plaintiff was privy. • the time taken to consider and uplift plaintiff’s conduct is such that he delays While Sutherland J did express disap- or reject the tender (the spatium delib- unreasonably in accepting or rejecting proval for the tender only being made on erandi); and the tender. the first day of trial he ordered an ‘equal • the conduct of the parties in the in- It is noteworthy that the plaintiff division of the spoils’, where each party terim. raised the argument that all relevant fac- is awarded costs for three days of trial. The point of controversy in this mat- tors should be taken into account when The judgment handed down by the ter was specifically what amount of time determining what constitutes a reason- court clearly brings to the fore that the should be considered reasonable for the able period of consideration. In the view most important consideration that a plaintiff to accept the ‘without prejudice’ of the plaintiff, all relevant factors in- court must take into account when deter- offer. In short, was the spatium delib- clude the defendant’s conduct prior to mining a cost order is timing, not only of erandi taken reasonable in the circum- and during trial. To this argument, the acceptance or rejection of a tender, but stances? court acknowledged that while there is also the timing of the tender itself. In the no temporal limit to what factors are to same train of thought, the conduct of the The Beukes decision be considered when it makes its decision, parties during the interim period is the The plaintiff, a curator acting on behalf the important consideration is relevance. important factor in relation to a costs or- of Musoliwa Makheta, instituted action Sutherland J held that ‘the question of der, and not the conduct outside of the for payment in the region of R 35 million costs of litigation must self-evidently be bounds of trial, which is more relevant to against the defendant. The trial proceed- related to the conduct of litigation and a determination on liability. The decision ed only in respect of quantum and the not concern itself with considerations made is, however, a fact-specific inquiry. argument that was to be heard related to outside of that realm’. It is, therefore, clear from this case the future medical and related expenses, The defendant acknowledged that that the strategy related to serving a ten- being the only remaining head of dam- while the plaintiff is entitled to a spa- der extends beyond considerations on age in dispute. tium deliberandi to consider the offer the part of the defendant. Not only does The defendant in this case served his made in settlement of the matter, r 34 the defendant want to place the plaintiff tender on the first day of trial, after due does not permit the plaintiff to keep the on risk in an attempt to settle the matter, consideration of the plaintiff’s articu- defendant waiting to an extent where but the plaintiff too has a duty to time- lated case. The tender was uplifted af- costs continue to be incurred. The de- ously consider the tender and not dally ter six days of trial. Sutherland J noted fendant argued, using the judgment of in making a decision. The time taken to that the turning point in the eyes of the Henry v AA Mutual Insurance Associa- deliberate a tender must be reasonable plaintiff, which caused the tender to be tion Ltd 1979 (1) SA 105 (C), that where in the given circumstances. A tender of- swiftly uplifted, was confirmation of the the trial has progressed there should be fered by the defendant is not a prover- patient’s neurological state by way of an no reason for the plaintiff to ‘dally for bial safety net that the plaintiff can hold EEG depicting little regenerative ability. more than a day’ before accepting or re- onto until such point that he realises This prognosis was critical to the degree jecting a tender. In light of this, the de- the trial is not going as anticipated but of care and treatment, which the patient fendant argued that waiting six days to rather it is an offer that must be given required and therefore directly relevant accept the tender was protracted and a the appropriate consideration. to the amount to be awarded for future more appropriate time to consider the medical and related expenses. tender would be two days. The defend- Emma Powell BA LLB (Wits) is a The purpose of r 34 is to limit the ant contended that the plaintiff should candidate attorney and Merlita costs incurred by a defendant at trial. therefore be awarded costs up to two Kennedy BA LLB (Stell) is an at- Ordinarily, the court will order the de- days after the tender was served and the torney at Webber Wentzel in Jo- fendant to the pay the plaintiff’s costs defendant should be awarded costs for hannesburg. incurred up to the date of the offer, and the four days thereafter. the plaintiff to pay the defendant’s costs In contrast, the plaintiff argued that thereafter. This general proposition does he ought to be awarded costs for the • Ms Kennedy acted for the defendant in not, however, cater for the scenario, as full duration of trial, taking into account the above matter. in this case, where the tender is served all relevant factors. The court, however, q

DE REBUS – APRIL 2015 - 47 - NEW LEGISLATION NEW LEGISLATION

Legislation published from 2 February – 27 February 2015

Philip Stoop BCom LLM (UP) LLD (Unisa) is an associate professor in the department of mercantile law at Unisa.

BILLS INTRODUCED Genetically Modified Organisms Act 15 Long-term Insurance Act 52 of 1998 Agrément South Africa Bill B3 of 2015. of 1997 Determination of penalties for failure to Judicial Matters Amendment Bill B2 of Amendment of Regulations (fees pay- furnish Registrar with returns. BN45 and 2015. able). GN87A GG38458/13-2-2015. BN46 GG38492/27-2-2015. Tariffs for service from 1 April 2015. Amendment of regulations made under COMMENCEMENT OF ACTS GN87 GG38458/13-2-2015. s 72. GN R170 GG38507/25-2-2015. Income Tax Act 58 of 1962 Medicines and Related Substances Act Legal Aid South Africa Act 39 of Protocol amending the agreement be- 101 of 1965 2014. Commencement: 1 March 2015. tween South Africa and India for avoid- Annual adjustment of single exit prices Proc R7 GG38512/27-2-2015. ance of double taxation and prevention of medicines and scheduled substances of fiscal evasion of taxes on income. for 2015. GN R74 GG38451/4-2-2015. SELECTED LIST OF GN60 GG38440/3-2-2015. Information to be furnished by manufac- Agreement between South Africa and the DELEGATED LEGISLATION turers and importers of medicines and United States of America to improve in- scheduled substances when applying for Agricultural Product Standards Act 119 ternational tax compliance and to imple- single exit price adjustment in 2015. GN of 1990 ment Foreign Account Tax Compliance R75 GG38451/4-2-2015. Amendment of standards and require- Act. GN93 GG38466/13-2-2015. Mine Health and Safety Act 29 of 1996 ments regarding control of the export Agreement between South Africa and Regulations relating to machinery and of citrus fruits. GenN132 GG38478/20- Barbados for the exchange of infor- equipment. GN R125 GG38493/27-2- 2-2015. mation relating to tax matters. GN97 2015. Amendment of standards and require- GG38475/17-2-2015. National Energy Regulator Act 40 of ments regarding control of export of Determination of daily amount in re- 2004 fruit, excluding citrus and certain de- spect of meals and incidental costs. Municipal Tariff Guideline for 2015/ ciduous fruits. GenN133 GG38478/20- GN98 GG38476/25-2-2015. 2016. GenN134 GG38478/20-2-2015. 2-2015. Persons or entities that may administer Amendment of regulations regarding in- financial instruments or policies as tax National Qualifications Framework Act spections and appeals: Local. GN R124 free investments. GN171 GG38508/25- 67 of 2008 GG38493/27-2-2015. 2-2015. Revised policy on minimum require- Amendment of regulations regarding in- Regulations on the requirements for tax ments for teacher education. GN111 spections and appeals: Export. GN R123 free investments. GN R172 GG38509/25- GG38487/20-2-2015. GG38493/27-2-2015. 2-2015. National Regulator for Compulsory Collective Investment Schemes Control Fixing of rate per kilometre in respect of Specifications Act 5 of 2008 Act 45 of 2002 motor vehicles. GN175 GG38516/27-2- Amendment of Regulations relating to Declaration of hedge fund business as 2015. the gazetting of levy periods. GN R101 a collective investment scheme from 1 International Trade Administration Act GG38479/20-2-2015. April 2015. GN141 GG38503/25-2-2015. 71 of 2002 Amendment to the compulsory specifi- Co-operative Banks Act 40 of 2007 Amendment of export control: guidelines cation for protective helmets for drivers Co-operative Banks Act Rules for Repre- on export of ferrous and non-ferrous and passengers of motor cycles and mo- sentative Bodies and Support Organisa- waste and scrap. GN R84 GG38459/13- peds. GN R100 GG38479/20-2-2015. tions. GN72 GG38441/6-2-2015. 2-2015. Plant Breeders’ Rights Act 15 of 1976 Financial Markets Act 19 of 2012 Liquor Products Act 60 of 1989 Amendment of regulations relating to Amendments to the Johannesburg Stock Amendment of Regulations published plant breeders’ rights (amendment of Exchange (JSE) Listing Requirements. under the Act (amendment of fees pay- fees payable). GN R82 GG38459/13-2- BN38 GG38452/5-2-2015. able). GN R66 GG38442/6-2-2015. 2015. Amendments to the JSE Equities, De- Liquor Act 59 of 2003 Plant Improvement Act 53 of 1976 rivatives and Interest Rate and Currency National Liquor Norms and Standards. Amendment of regulations relating to Rules. BN43 GG38478/20-2-2015. GN R85 GG38459/13-2-2015. establishment, varieties, plants and

DE REBUS – APRIL 2015 - 48 - BOOKS FOR LAWYERS propagating material (amendment of fees payable). GN R81 GG38459/13-2-2015. A Practical Guide to Postal Services Act 124 of 1998 Fees and charges to be implemented on 1 April 2015. GenN87 GG38449/2-2-2015. Media Law

Small Claims Court Act 61 of 1984 Establishment of a small claims court for the area of Prince Albert. GN120 GG38497/23-2-2015. By Dario Milo and Establishment of a small claims court for the area of Prince Pamela Stein Laingsburg. GN118 GG38497/23-2-2015. Establishment of a small claims court for the area of Umzinto Durban: LexisNexis (Scottburgh). GN119 GG38497/23-2-2015. (2013) 1st edition Standards Act 8 of 2008 Price: R 513 (incl VAT) Issuing, amendment and cancellations of certain standards. 237 pages (soft cover) GenN106 GG38478/20-2-2015. Issue of new standards. GN132 GG38492/27-2-2015. Subdivision of Agricultural Land Act 70 of 1970 New tariffs for goods, service or supplies rendered in terms of the Act. GN102 GG38478/20-2-2015. Tax Administration Act 28 of 2011 n 1990, when the last definitive guide for journalists Persons required to submit returns. GN169 GG38506/27-2- was published in the form of Kelsey Stewart’s ‘News- 2015. paperman’s Guide to the Law’ (Durban: Butterworths Draft legislation 1990), Nelson Mandela had just been released and Draft National Pricing Strategy for Waste Management Charges emergency regulations were still in place. There were in terms of the National Environmental Management: Waste only four television channels available in South Africa Act 59 of 2008. GenN84 GG38438/2-2-2015. and the internet was in its infancy. Draft Amendment Regulations relating to the registration of IMuch has changed since 1990. Emergency regulations are no fertilizers, farm feeds, agricultural remedies, stock remedies, longer; South Africa now has a Constitution that guarantees sterilizing plants and pest control operators, appeals and im- freedom of expression, this has impacted the law of defama- ports in terms of the Fertilizers, Farm Feeds, Agricultural Rem- tion and the realms of privacy; and legislation has been intro- edies and Stock Remedies Act 36 of 1947. GN78 GG38455/6- duced entitling members of the public access to information. 2-2015. Additionally, the internet has fundamentally changed the way Proposed amendment to the compulsory specification for we think. Citizen journalism and blogging are now matters of switches for fixed installations (VC 8003) in terms of the Na- course. The number of television channels has mushroomed tional Regulator for Compulsory Specifications Act 5 of 2008. well beyond the four that were available in 1990. GN73 GG38441/6-2-2015. With all these changes, there was clearly a need for lawyers Draft Regulations regarding Procedural Requirements for Li- and journalists alike to have a definitive guide to media law. cence Applications in terms of the National Water Act 36 of No longer could this be limited to the ‘newspaperman’. Step 1998. GenN126 GG38465/12-2-2015. in, Dario Milo and Pamela Stein. They have now written what Draft National Register of Artisans Regulations in terms of the is, in essence, a replacement to the ‘Newspaperman’s Guide to Skills Development Act 97 of 1998. GenN104 GG38458/13-2- the Law’. This book details advances that have been made in 2015. 1990 arising from the changed political dispensation and the Draft Amendment to the list of waste management activities tremendous advances in technology. In the sphere of commu- that have or are likely to have a detrimental effect on the envi- nications and media law, the book is everything that the title ronment in terms of the National Environmental Management: says it is – a ‘practical guide to media law’. It is well structured, Waste Act 59 of 2008. GN130 GG38472/13-2-2015. well written and accessible to all – not only lawyers practising Regulations relating to the constitution of the profession- in the field. al board for emergency care practitioners in terms of the The book not only deals extensively with the significant de- Health Professions Act 56 of 1974 for comment. GN R108 velopments that have taken place in defamation law but also GG38485/17-2-2015. the impact of the protection of freedom of speech as contained Procedural regulations pertaining to the functioning of the in the Constitution, legislation dealing with access to informa- office of health standards compliance and its board in terms tion and the concept of hate speech. Detailed chapters outline of the National Health Act 61 of 2003 for comment. GN R110 the impact that the Constitution has had on freedom of ex- GG38486/18-2-2015. pression and hate speech, as well as recent developments in Draft amendment to the regulations made under the Security the law of defamation. There is sufficient guidance not only Officers Act 92 of 1987. BN44 GG38478/20-2-2015. for ‘newspaper journalists’ but broadcasters as well. Sufficient Draft fees and charges in terms of the Landscape Architectural guidance exists in the book dealing with the practicalities of Profession Act 45 of 2000. BN47 GG38492/27-2-2015. court reporting and, importantly, the protection of sources Proposed export control measure on the exportation of scrap and contempt of court. batteries in terms of the International Trade Administration In short, the book is a must have for journalists and fledg- Act 71 of 2002. GN R137 GG38493/27-2-2015. ling media lawyers and a good starting point for those well- Regulations for admission of guilt fines in terms of the Na- seasoned in the field. tional Environmental Management Waste Act 59 of 2008 for comment. GenN175 GG38517/27-2-2015. Dan Rosengarten is a media lawyer at Rosin Wright Draft rules relating to what constitutes good pharmacy practice Rosengarten in Johannesburg. in terms of the Pharmacy Act 53 of 1974. BN49 GG38511/27- 2-2015. q q

DE REBUS – APRIL 2015 - 49 - 63982/E HAVASWW

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Talita Laubscher BIur LLB (UFS) LLM Monique Jefferson BA (Wits) LLB (Rho- (Emory University USA) is an attorney des) is an attorney at Bowman Gilfillan in at Bowman Gilfillan in Johannesburg. Johannesburg.

Re-employment on have jurisdiction as Kukard had failed to his resignation, the way in which he had prove that he was dismissed by Delkor. been treated when he reported for duty, different terms and Delkor alleged that the proximate cause and the fact that he had been unable to conditions of the termination was that Kukard had secure alternative employment as he was refused to finalise the terms and condi- bound by restraint of trade undertak- In Kukard v GKD Delkor (Pty) Ltd [2015] tions of his employment. ings. It was noted that where an uncondi- 1 BLLR 63 (LAC), Mr Kukard was initially The Labour Appeal Court (LAC) held tional offer of reinstatement is made to employed on an indefinite basis as a tech- that an employment relationship had, an unfairly dismissed employee, the em- nical sales representative by GKD Delkor in fact, come into being between Delkor ployee’s unreasonable rejection of such (Pty) Limited (Delkor) and then resigned and Kukard as a result of the settlement offer may mean that the employee is not and joined one of Delkor’s competitors. agreement and the fact that Kukard re- entitled to compensation. This was, how- Kukard was bound by a restraint of trade ported for duty to tender his services. It ever, not the case here. When Kukard re- agreement and thus Delkor threatened found further that Delkor had refused to ported for duty, Delkor did not reinstate to take action to enforce the restraint. comply with the provisions of the settle- him as per the settlement agreement but Delkor, Kukard and the new employer ment agreement. Delkor alleged that it instead tried to renegotiate the terms of entered into negotiations and eventu- was necessary to change Kukard’s job his employment. The offer of employ- ally concluded a settlement agreement description because there had been a re- ment was accordingly not a genuine rea- in terms of which Delkor agreed to restructuring but the evidence did not sup- sonable unconditional offer to re-employ employ Kukard on the same conditions port this. Delkor also denied instructing on the same terms and conditions and with the same benefits. However, when Kukard to leave the premises but the the refusal to accept the offer of employ- he reported for duty he was presented LAC found that the most probable ver- ment on the new terms and conditions with a fixed term contract for a differ- sion was that Delkor had done so espe- was not unreasonable. The appeal was ent position. He was also not provided cially because Kukard was instructed to accordingly upheld. with his company laptop and other com- return his company cellphone. pany resources that he had used prior to The LAC concluded that the decision Team misconduct his resignation. He refused to sign the of the arbitrator was one that a reason- In True Blue Foods (Pty) Ltd t/a Kentucky agreement and was issued with a letter able decision maker could make as Kuk- Fried Chicken (KFC) v CCMA and Others stating that the offer of employment was ard was an employee by virtue of the fact (LC) (unreported case no D441/11, 28-11- withdrawn. He also alleged that he was that he had been re-employed in terms 2014) (Shai AJ), Kentucky Fried Chicken instructed to leave the premises and re- of the settlement agreement and had re- (KFC) found that it was suffering severe turn his company cellphone. Kukard con- ported for duty. Thus, any dismissal had stock losses and it accordingly improved tended that Delkor was in breach of the to be substantively and procedurally fair. its security measures by changing locks settlement agreement and in addition As regards compensation, the arbitra- and employing more security guards he referred an unfair dismissal claim to tor had a wide discretion to award com- to conduct patrols and searches. There the Commission for Conciliation, Media- pensation provided that it was just and were also CCTV cameras. KFC communi- tion and Arbitration (CCMA). The CCMA equitable. When exercising this discre- cated to the employees that it was intro- found that the dismissal was unfair and tion, the arbitrator must determine the ducing a system of zero tolerance as re- ordered seven months’ remuneration as nature of the unfair dismissal and the gards stock losses and theft. It informed compensation. scope of the wrongful act on the part of the employees that it was part of their On review, the Labour Court found the employer. Compensation can only be duties to avoid stock losses and report that an employment relationship had interfered with if the arbitrator exercises acts of misappropriation and that if such come into existence between Delkor and discretion on a wrong principle, or with significant stock losses continued, disci- Kukard but that the withdrawal of the of- bias or without reason or if the arbitra- plinary action would be taken. Given the fer of employment did not in itself con- tor adopts a wrong approach. The LAC extremely large number of losses, (for stitute a dismissal as the offer was never found that the order of compensation example, 518 cans of juice went missing accepted by Kukard. Thus, the Labour was reasonable as regard had been had during one shift), KFC was of the view Court concluded that the CCMA did not to Kukard’s length of service prior to that it would not have been possible for

DE REBUS – APRIL 2015 - 51 - Tjakie Naudé • Sieg Eiselen (managing editors)

COMMENTARY ON THE CONSUMER PROTECTION ACT

The rst section-by-section commentary on the CPA, this updatable loose-leaf work offers:

• detailed analysis of each section Loose-leaf • Approx. 1342 pages 1342 Approx. • Loose-leaf Loose-leaf • Approx. 1342 pages 1342 Approx. • Loose-leaf of the CPA together with cross references to other sections and applicable regulations • overviews of marketing and “… an excellent, useful and franchising under this law necessary addition to the literature available on the CPA…”. • useful discussion on the impact of consumer law on the law of Ina Meiring - contract Werksmans Advisory Services (Pty) Ltd • material systematically arranged “The Commentary is user for ease of reference friendly and will be of value to everyone that deals with the Consumer Protection Act”. * Price incl. VAT, excludes delivery and the cost of future Prof. Stephen de la Harpe revision service updates to this loose-leaf work. Order online or contact Juta Customer Services, tel. 021 659 2300, fax 021 659 2360,Price email valid [email protected] 31 December 2015.

www.jutalaw.co.za @jutalaw Juta Law Tjakie Naudé • Sieg Eiselen (managing editors) EMPLOYMENT LAW

theft to be carried out without all the months’ remuneration as compensation misconduct what suffices is for the em- team members being aware. Significant to each of the employees. ployee to be a member of a team that has stock losses nevertheless continued and On review, the Labour Court, per Shai failed to ensure that the team meets its a disciplinary process was instituted. AJ, considered the concept of team mis- obligations. In this case there were sig- All the employees who had worked dur- conduct and found that in team miscon- nificant losses, the stock loss had con- ing the shifts when the stock losses oc- duct a group of employees are dismissed tinued notwithstanding the measures curred were subjected to a disciplinary because the collective conduct of the that KFC had taken to try and curb the COMMENTARY inquiry and were found guilty on the group is indivisible. It is not necessary stock losses and the employees had been basis of ‘team misconduct’ and were dis- to prove individual culpability, deriva- warned of the consequences should the missed. After their dismissal there were tive misconduct or common purpose but stock losses continue. It was found that no further stock losses. rather that each of the individuals has the arbitrator’s finding was unreason- ON THE The employees referred the matter to culpably failed to ensure that the group able as he had erroneously found that the CCMA as they alleged that KFC had complies with a rule. Where stock losses individual culpability had to be proven not proved that they were involved in the are so significant that it could not have in the case of team misconduct. Thus, CONSUMER stock losses or that they knew about it or escaped the knowledge of all the em- the review succeeded and the arbitration were responsible for it. The CCMA found ployees, then a dismissal is justifiable. award was substituted with an order that PROTECTION the dismissals unfair and ordered six Shai AJ concluded that in cases of team the dismissals were substantively fair. The rescission application came be- has been appointed, confirm the ap- fore the same commissioner who deliv- pointment of the commissioner, to re- ACT ered the default award. In his rescission solve the dispute in terms of this Act.’ ruling the commissioner found that in In keeping with the purpose of the Act the absence of any party challenging the (that being to resolve labour disputes in CCMA’s jurisdiction at the onset of the a speedy effective manner) the LAC con- process (conciliation or arbitration), the firmed the view that s 147 was designed CCMA can assume jurisdiction despite to avoid delays arising out of jurisdic- the fact that one or both parties fell un- tional challenges by giving the CCMA the der the jurisdiction of a bargaining coun- choice of dealing with a dispute where The rst section-by-section cil. the parties fell within the ambit of a bar- Moksha Naidoo BA (Wits) LLB (UKZN) It was this ruling that formed the sub- gaining council or by referring these dis- commentary on the CPA, is an advocate at the Johannesburg Bar. ject matter of legal proceedings. putes to the relevant bargaining council. On review, the Labour Court per Ben- As to who has the mandate to exercise this updatable loose-leaf jamin AJ, found that the CCMA did not this choice, the LAC referred to its recent The Commission and not have jurisdiction to hear the dispute as judgment wherein it held the following: work offers: both parties fell with the jurisdiction of ‘[W]here a dispute is referred to the the Commissioner can the MEIBC and as such set aside the com- CCMA, the matter may not proceed be- confer jurisdiction on the missioner’s rescission ruling. fore the CCMA once it is ascertained In turn the employee approached the that the parties are parties to a bargain- • detailed analysis of each section CCMA in terms of s 147. Labour Appeal Court (LAC). ing council or fall within the registered

Qibe v Joy Global Africa (Pty) Ltd and Oth- As a starting point the LAC was alive scope of a bargaining council, until the Loose-leaf • Approx. 1342 pages 1342 Approx. • Loose-leaf Loose-leaf • Approx. 1342 pages 1342 Approx. • Loose-leaf of the CPA together with cross ers (LAC) (unreported case no JA119/13, to the fact that as a creature of statute options set out in s 147(2) and (3) have references to other sections and 15-1-2015) (Setiloane AJA). the CCMA could not determine its own been exercised by the CCMA. applicable regulations This appeal turned on the question of jurisdiction. However, s 147 of the La- … [O]nce that is ascertained, it is then whether a Commission for Conciliation, bour Relations Amendment Act 6 of for the CCMA or its delegate (and not Mediation and Arbitration (CCMA) com- • overviews of marketing and 2014 (the Act) was the statutory excep- the commissioner hearing the matter “… an excellent, useful and missioner, can on his or her own accord, tion to this principle. when this was ascertained) to determine franchising under this law assume jurisdiction over parties who The relevant subsections of s 147 whether to refer the matter to the bar- necessary addition to the literature fall under the jurisdiction of a bargain- reads: gaining council or to appoint a commis- • useful discussion on the impact ing council or where one such party falls ‘(2)(a) If at any stage after a dispute sioner to determine the dispute or if one available on the CPA…”. under the scope of a bargaining council. has been referred to the Commission, it has already been appointed, to confirm of consumer law on the law of The appellant employee referred an Ina Meiring - becomes apparent that the parties to the his or her appointment’ contract unfair dismissal dispute to the CCMA. dispute are parties to a council, the Com- Following this approach the LAC in Werksmans Advisory Services (Pty) Ltd On receipt of the notice of set down, the mission may – casu held: • material systematically arranged first respondent employer e-mailed the (i) refer the dispute to the council for ‘... in the current matter, once the case manager officer at the CCMA and resolution; or respondent had placed its founding “The Commentary is user for ease of reference advised that it fell within the jurisdiction (ii) appoint a commissioner or, if one affidavit before the Commissioner, in of the Metal and Engineering Industries has been appointed, confirm the ap- the rescission application, contending friendly and will be of value to Bargaining Council (MEIBC) and as such pointment of the commissioner, to re- that the it was a member of the MEIBC everyone that deals with the the CCMA does not have jurisdiction solve the dispute in terms of this Act. and that the appellant fell within its reg- over the dispute. (3)(a) If at any stage after a dispute has istered scope, he was required in terms Consumer Protection Act”. On the day of the arbitration only the been referred to the Commission, it be- of s 147(3)(a) of the LRA to request the * Price incl. VAT, excludes delivery and the cost of future employee attended. Seemingly unaware comes apparent that the parties to the CCMA management to make a ruling on Prof. Stephen de la Harpe revision service updates to this loose-leaf work. of the aforementioned e-mail, the com- dispute fall within the registered scope whether to refer the dispute to the MEIBC Price valid until 31 December 2015. Order online or contact Juta Customer Services, tel. 021 659 2300, fax 021 659 2360, email [email protected] missioner continued in the absence of of a council and that one or more par- for resolution, or whether he could con- the employer and delivered a default ties to the dispute are not parties to the tinue to determine the dispute. This was award. The employer launched a rescis- council, the Commission may – not a decision for the Commissioner to sion application alleging that as a party (i) refer the dispute to the council for make’. to the MEIBC, the CCMA was deprived of resolution; or The employee further argued that the any jurisdiction to deal with the dispute. (ii) appoint a commissioner or, if one choice afforded to the CCMA in terms of www.jutalaw.co.za @jutalaw Juta Law DE REBUS – APRIL 2015 - 53 - OPINION s 147, could only be exercised from the (a) and (3)(a) finds application from the time the disputed was first referred to time a disputed has been referred to the • Moksha will be conducting a one the CCMA until such time as the default CCMA until such time as the dispute has day labour law seminars on behalf award was delivered. Therefore accord- been resolved by way of an award, which of the Legal Education and Devel- ing to the employee, it was incorrect to is final. While a default award will have opment arm of the Law Society of apply the provisions of s 147 in a rescis- full effect until set aside, it is not final South African at various provinces sion application, which was filed subse- for purposes of review on the ground in June 2015. For more information quent to and in response to the default that it can be revisited by way of a re- and to register please visit www. award. scission application. lssalead.org.za and click on labour The LAC dismissed this argument. The appeal was dismissed with costs. law seminar. It held that the provisions of s 147(2) q

By Danie Can I protect my Pienaar mobile app idea?

he current boom in the de- verse engineering your app and then tries or regions like Europe tend to take velopment of smart device programming their own app that func- a stricter approach to the patentabil- technologies and mobile ap- tions in the exact same way. ity of software-implemented inventions, plications (apps) during the If you want to protect the unique func- and generally requires that the inven- last few years has created tionality of an app, the only way is to tion should solve a technical problem. If an amazing platform for en- apply for a patent. Generally speaking, an app therefore solves some technical Ttrepreneurs to develop new mobile apps, the patenting of software-implemented problem, then it may well be patentable that provide users with unique services inventions is quite a controversial to in Europe. which, before the development of smart pic, with many ‘pro open source’ people There has unfortunately not been any devices, were not possible. believing that it should not be allowed, case law to provide us with guidance By developing a popular mobile app, since it curbs innovation rather than pro- regarding the patentability of software- entrepreneurs are able to generate earn- moting it. However, that said, the patent- implemented inventions in South Africa. ings in a variety of ways. One of the more ing of mobile apps has received a lot of Our patent law is, however, mirrored on popular ways is to make use of so-called attention in recent years, especially in European and United Kingdom patent in-app purchases. For example, the app countries such as the United States (US). law and the approach taken in Europe can be made available free-of-charge but The two main requirements for pat- may therefore be a good guideline for with only limited features. In order to ent protection in South Africa, as well South Africa. However, that said, the gain access to additional features, the as most other countries in the world, are South African Patent Office is a non-ex- user can make an in-app purchase, which that the invention should be novel and amining Patent Office, which means that then generates income to the owner of should not be obvious to a person skilled if a complete patent application is filed the app. A good example is the popular in the field of the invention. Therefore, if and all the formalities are complied with, game Clash of Clans that allows users a mobile app functions in a unique way, a patent will be granted. If another party to purchase so-called ‘gems’, which is a then it may well be patentable. In this then wishes to invalidate the patent, the type of currency in the game, that can regard it is important to bear in mind onus will be on them to prove it. be used to buy resources or conduct up- that in order for an invention to be novel To conclude, although software pat- grades, thereby helping players to pro- it should, among others, be kept secret ents may be considered by some as con- gress in the game. until a patent application has been filed. troversial, the fact of the matter is that Now the question is, can one protect The patentability of software-imple- if you decide not to apply for a patent the unique functionality of a mobile app mented inventions, such as mobile apps, for your mobile app, even though it may in order to help prevent others from cre- varies from country to country, since the have a unique functionality, you will ating apps that work in the same way? national patent legislation of each cou need to be content with the fact that the Although copyright automatically pro- ntry differs. The patent system in the US market will effectively be a free-for-all tects the actual computer code from the (as well as in some other countries like for others to create similar apps. moment it is programmed (ie, the mo- Australia) generally have quite a favour- ment it is reduced to material form), it able outlook on software-implemented only protects against the unauthorised inventions, which is the reason why the Danie Pienaar BEng (UP) LLB (Uni- copying of the code and not the actual US Patent Office has received quite a sa) is a patent attorney at Spoor & functionality of the app. Copyright will large number of patent applications that Fisher in Pretoria. q therefore not prevent others from re- relate to mobile apps. Some other coun-

DE REBUS – APRIL 2015 - 54 - RECENT ARTICLES AND RESEARCH

By Meryl Federl Recent articles and research

Note: From this issue forward, where articles are available on an open access platform, articles will be hyperlinked on De Rebus Digital.

ABBREVIATIONS Govender, K ‘The risk of taking risky de- and the Cartagena Protocol: Key issues CCR: Constitutional Court Review (Juta) cisions: Democratic Alliance v President and concerns’ (2014) 17.5 PER 1740. ILJ: Industrial Law Journal (Juta) of the Republic of South Africa’ (2014) 5 International law PER: Potchefstroom Electronic Law Jour- CCR 451. Issacharoff, S ‘The democratic risk to Barolsky, V ‘Glenister at the coalface: nal (North West University) Are the police part of an effective inde- SAJHR: SA Journal Human Rights (Juta) democratic transitions’ (2014) 5 CCR 1. Krygier, M ‘What about the rule of law?’ pendent security service?’ (2014) 5 CCR Affirmative action (2014) 5 CCR 74. 377. Fergus, E ‘Towards unity – reconciling Landau, D ‘Aggressive weak-form rem- Jain, M and Meyersfeld, B ‘Lessons from fairness and rationality in affirmative ac- edies’ 5 CCR 244. Kiobel v Royal Dutch Petroleum Com- tion disputes’ (2015) 36 Jan ILJ 40. Raboshakga, N ‘The separation of pow- pany: Developing homegrown lawyering Gaibie, S ‘The Constitutional Court deci- ers in interim interdict applications’ strategies around corporate accountabil- sion in Barnard’ (2015) 36 Jan ILJ 80. (2014) 5 CCR 366. ity’ (2014) 30.3 SAHJR 430. Meyersfeld, B ‘Domesticating Interna- Children’s rights Ray, B ‘Evictions, aspirations and avoidance’ (2014) 5 CCR 173. tional Standards: The direction of in- Lutchman, S ‘“Child savers” v “kiddie lib- Roux, T ‘The South African Constitu- ternational human rights law in South bers”: The sexual rights of adolescents’ tional Court’s democratic rights juris- Africa’ (2014) 5 CCR 399. (2014) 30.3 SAHJR 555. prudence’ (2014) 5 CCR 33. Sucker, F ‘Approval of an international Constitutional Court Swart, M and Coggin, T ‘The road not treaty in Parliament: How does s 231(2) taken: Separation of powers, interim in- “Bind the Republic”?’ (2014) 5 CCR 417. Fagan, A ‘Causation in the Constitution- Tuovinen, J ’What to do with interna- al Court: Lee v Minister of Correctional terdicts, rationality review and E-Tolling in National Treasury v Opposition to Ur- tional law? Three flaws in Glenister’ Service’s’ (2014) 5 CCR 104. (2014) 5 CCR 435. Moseneke, D ‘Courage of Principle: Re- ban Tolling’ (2014) 5 CCR 346. flections on the 30th anniversary of the Wilson, S ‘Curing the poor: State housing Judiciary assassination of Ruth First’ (2014) 5 CCR policy in Johannesburg after Blue Moon- Malan, K ‘Reassessing judicial independ- 91. light’ (2014) 5 CCR 280. ence and impartiality against the back- Ongeso, JP et al ‘Constitutional Court Young, KG ‘The avoidance of substance drop of judicial appointments in South statistics for the 2009 term’ (2014) 30.3 in constitutional rights’ (2014) 5 CCR Africa’ (2014) 17.5 PER 1965. SAHJR 572. 223. McCreath, H and Koen, R ‘Defending the Petersen, N ‘Proportionality and the in- Disability rights absurd: The iconoclast’s guide to s 47(1) commensurability challenge in the juris- of the Superior Courts Act 10 of 2013’ prudence of the South African Constitu- Holness, W and Rule, S ‘Barriers to advo- (2014) 17.5 PER 1789. tional Court’ (2014) 30.3 SAHJR 405. cacy and litigation in the Equality Courts for persons with disabilities’ (2014) 17.5 Labour law Constitutional law PER 1907. Botha, MM ‘The different worlds of la- Bilchitz, D ‘Avoidance remains avoid- bour and company law: Truth or myth?’ ance: Is it desirable in socio-economic Education law (2014) 17.5 PER 2043. rights cases?’ (2014) 5 CCR 297. Woolman, S and Fleisch, B ‘The problem Chicktay, M ‘Can teaching be declared Dafel, M ‘On the flexible procedure of of the “Other” language’ (2014) 5 CCR an essential service? A comparative anal- housing eviction applications’ (2014) 5 135. ysis of the South African legal position CCR 331. and international labour organisation De Villiers, B ‘Section 235 of the Consti- Environmental law standards’ (2014) 30.3 SAHJR 526. tution: Too soon or too late for cultural Feris, L and Kotzé, LJ ‘The regulation Coetzer, N ‘Between a rock and a hard self-determination in South Africa?’ of acid mine drainage in South Africa: place’ (2015) 36 Jan ILJ 94. (2014) 30.3 SAHJR 458. Law and governance perspectives’ (2014) Fergus, E and Collier, D ‘Race and gen- Dugard, J ‘Beyond Blue Moonlight: The 17.5 2105. der equality at work: The role of the ju- implications of judicial avoidance in Knobel , JC ‘The legal status of the Span- diciary in promoting workplace transfor- relation to the provision of alternative ish Imperial Eagle in Spain and thoughts mation’ (2014) 30.3 SAHJR 484. housing’ (2014) 5 CCR 265. on environmental law and policy as con- Loubser, A and Joubert, T ‘The role of Fowkes, J ‘Managerial adjudication, con- tributing factors in the conservation of trade unions and employees in South stitutional civil procedure and Maphan- species’ (2014) 17.5 PER 1828. Africa’s business rescue proceedings’ go v Aengus Lifestyle Properties’ (2014) Lim Tung, OJ ‘Transboundary move- (2015) 36 Jan ILJ 21. 5 CCR 309. ments of genetically modified organisms Mukheibir, A and Qotoyi,T ‘Wrongful

DE REBUS – APRIL 2015 - 55 - RECENT ARTICLES AND RESEARCH suspension as a ground for delictual Water law damages’ (2015) 36 Jan ILJ 70. Chamberlain, L ‘Standing in the Water Open access law Rycroft, A ‘Strikes and the amendments Tribunal: Access to justice down the journals: to the LRA’ (2015) 36 Jan ILJ 1. plughole?’ (2014) 30.3 SAHJR 543. T Cohen ‘Limiting organisational rights • African Human Rights Law Journal: of minority unions: POPCRU v Ledwaba www.chr.up.ac.za/index.php/about- 2013 11 BLLR 1137 (LC)’ (2014) 17.5 PER Meryl Federl BA Higher Dipl Li- the-journal.html 2209. brarianship (Wits) is an archivist at the Johannesburg Society of • Constitutional Court Review: https:// Whitear-Nel, N and Grant, B ‘Protecting jutalaw.co.za/media/file- the unwed woman against automatically Advocates library. E-mail: mer- [email protected] store/2015/01/CCR_-_Electronic_ver- unfair dismissals for reasons relating to sion.pdf pregnancy’ (2015) 36 Jan ILJ 106. • De Jure published by the University Law of contract Please note that copies of the arti- of Pretoria: www.dejure.up.ac.za/ • Journal for Juridical Science pub- Sharrock, R ‘Rectification and party mis- cles mentioned in this feature are lished by the Faculty of Law, University description: To what extent is rectifica- not supplied by the author, but may of the Free State: https://africansun- tion competent or useful?’ (2014) 17.5 be obtained from the publishers of the journals, or a law library. media.snapplify.com/product/journal- PER 2195. for-juridical-science-382 Medical law • Law, Democracy & Development is the journal of the Faculty of Law at the Pienaar, L ‘Access to the medical records Which journals would you like to University of the Western Cape: www. of a child: Legislative review required’ see featured in this column? ldd.org.za/current-volume.html (2014) 30.3 SAHJR 508. Forward your suggestions to [email protected] • Potchefstroom Electronic Law Jour- Right to information nal: www.nwu.ac.za/p-per/volumes Ampofo-Anti, O and Winks, B ‘There • Speculum Juris published by the and back again: The long road to access Open access websites: Nelson R Mandela School of Law, to information in M&G Media v President University of Fort Hare: www.specu- • www.lawsofsouthafrica.up.ac.za of the Republic of South Africa’ (2014) 5 lumjuris.co.za/articles • www.saflii.org CCR 466. q

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