THE SA ATTORNEYS’ JOURNAL

MARCH 2018

THE GENESIS OF THE ‘GUPTA CLAUSE’ WITHIN THE FINANCIAL REGULATORY FRAMEWORK OF

Navigating the digital divide: Internet access a human right?

Is your firm the type of entity it purports to be?

Do you have a legal practitioner personality?

The impasse of reserved costs – the winning party does not take it all

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THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL March 2018 Issue 582 ISSN 0250-0329

THE SA ATTORNEYS’ JOURNAL Regular columns MARCH 2018 The genesis of The ‘gupTa clause’ Editorial 3 wiThin The financial regulaTory 26 framework of souTh africa

Navigating the digital divide: Letters to the editor 4 Internet access a human right? 32

Is your firm the type of AGM News entity it purports to be? 20 LSNP AGM: Lawyers should give back to society 5 Do you have a legal practitioner ADF will still exist in the new dispensation 7 personality? 22

The impasse of News reserved costs – the winning party does not 30 2017 prize winners for best articles in De Rebus 8 take it all Progress only achievable through a united profession Appointment of sitting judges to preside over commissions of inquiry: discussed at NADEL’s National Young Lawyers Summit 9 A lawful but undesirable practice 47 Brazil and South Africa to share ideas on improving the mining sector 13 Constitutional Court Justice retires 14

People and practices 16 LSSA News LSSA discusses way forward after implementation of LPA 17 5 7 LSSA calls for higher standard of ethics and accountability for public officials 17 The Future of Our Profession 18

Books for lawyers 19

Practice management Is your firm the type of entity it purports to be? 20 Do you have a legal practitioner personality? 22

Practice notes Trustee duties in relation to member investor choice 24 11 14 Conflicting evidence of handwriting experts 25

The law reports 36

New legislation 41

Employment law update 42

Recent articles and research 44 Opinion Appointment of sitting judges to preside over commissions of inquiry: A lawful but undesirable 17 practice 47

DE REBUS – MARCH 2018 - 1 - EDITOR: FEATURES Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT)

26 The genesis of the ‘Gupta clause’ within PRODUCTION EDITOR: Kathleen Kriel the financial regulatory framework of BTech (Journ) (TUT) South Africa SUB-EDITOR: SUB-EDITOR: Kevin O’ Reilly Isabel Joubert t is a trite principle of law in South Africa that MA (NMMU) BIS Publishing (Hons) (UP) banks are not legally compelled to give reasons for terminating relationships or closing custom- NEWS REPORTER: EDITORIAL SECRETARY: I Kgomotso Ramotsho Shireen Mahomed ers’ accounts. This has been long established and Cert Journ (Boston) settled in, both international and domestic case Cert Photography (Vega) law. However, as of late there have been various EDITORIAL COMMITTEE: Giusi Harper (Chairperson), Peter Horn, Denise Lenyai, policy developments within SA’s financial regula- Mohamed Randera, Lutendo Sigogo tory framework, which might necessitate a rethink EDITORIAL OFFICE: 304 Brooks Street, Menlo Park, thereof or pose a challenge to this principle. Nkateko Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. Nkhwashu briefly looks at some of the key pieces of leg- Tel (012) 366 8800 Fax (012) 362 0969. islation, which are going to form the basis of the article and how it E-mail: [email protected]

all fits within the financial regulatory framework. DE REBUS ONLINE: www.derebus.org.za 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 impasse of reserved costs – the the space available. Views and opinions of this journal are, unless otherwise 30 stated, those of the authors. Editorial opinion or ­comment is, unless other- winning party does not take it all wise stated, that of the editor and publication thereof does not indicate the agreement of the Law Society, unless so stated. Con­tributions may be edited for clarity, space and/or language. The appearance of an advertisemen­­ t in everly Shiells writes that there seems to be this publication does not necessar­ ily indicate approval by the Law Society a misconception among colleagues that the for the product or service ad­­ver­­­­tised. winning party is ultimately entitled to all De Rebus editorial staff use online products from: B • LexisNexis online product: MyLexisNexis. Go to: www.lexisnexis.co.za; costs incurred in an action or application and and that such costs also include any reserved • Juta. Go to: www.jutalaw.co.za. costs orders made. The Taxing Master has, PRINTER: Ince (Pty) Ltd, PO Box 38200, Booysens 2016. however, no authority to tax a reserved AUDIO VERSION: The audio version of this journal is available costs order and any reserved costs order free of charge to all blind and print-handicapped members of Tape Aids for the Blind. must be unreserved prior to taxation. Failure ADVERTISEMENTS: and/or neglect to address any reserved costs or- Main magazine: Ince Custom Publishing ders prior to the finalisation of a matter can ulti- Contact: Greg Stewart • Tel (011) 305 7337 mately cost your client a vast amount in legal fees. Cell: 074 552 0280 • E-mail: [email protected] Classifieds supplement: Contact: Isabel Joubert Tel (012) 366 8800 • Fax (012) 362 0969 PO Box 36626, Menlo Park 0102 • E-mail: [email protected] ACCOUNT INQUIRIES: David Madonsela 32 Navigating the digital divide: Internet Tel (012) 366 8800 E-mail: [email protected] access a human right? CIRCULATION: De Rebus, the South African ­Attorneys’ Journal, is published monthly, 11 times a year, by the Law Society of South Africa, 304 Brooks Street, Menlo Park, Pretoria. It circulates free of he notion that Internet access is a human right that must be charge to all practising attorneys and candidate attorneys and is guaranteed by government has become an attractive narrative also available on general subscription. for many commentators. Martin van Staden writes that there ATTORNEYS’ MAILING LIST INQUIRIES: Gail Mason T Tel (012) 441 4629 E-mail: [email protected] has been much talk of a ‘digital divide’, meaning the inequality of All inquiries and notifications by practising attorneys and candi- access to digital media between wealthier and poorer individuals. date attorneys should be addressed to the relevant law society #DataMustFall has recently been joined by the official opposition’s which, in turn, will notify the Law Society of SA. (the Democratic Alliance’s) #Data4All initiative, which is demanding SUBSCRIPTIONS: General, and non-practising attorneys: R 1 016 p/a 500MB of free data for the poor, students and jobseekers. Mr van Retired attorneys and full-time law students: R 780 p/a Staden goes on to say that passion and emotion are crucial Cover price: R 107 each ingredients in a democracy, antithetical to the cold Subscribers from African Postal ­Union countries (surface mail): R 1 615 (VAT excl) application of rules evident in authoritarian dic- Overseas subscribers (surface mail): R 1 972 (VAT excl) tatorships. However, it remains impor- NEW SUBSCRIPTIONS AND ORDERS: David Madonsela tant to approach ideas like Internet Tel: (012) 366 8800 • E-mail: [email protected] access being a human right with a degree of circumspection, espe- cially if such narrative stands to © Copyright 2018: cost the beleaguered taxpayer Law Society of South Africa 021-21-NPO more in taxes, and when it Tel: (012) 366 8800 appears to be so readily ac-

cepted, without question, Member of The Audit Bureau of that it should be a human right. Circulations of Southern Africa

DE REBUS – MARCH 2018 - 2 - EDITOR’S NOTE

A new dawn for South Africa

ince the release of the ‘State of Financial Sector Conduct Authority. The Capture’ report by former Public second being the Financial Intelligence Protector Thuli Madonsela in Centre Amendment Act 1 of 2017, 2015, the country and the legal which seeks to formally introduce profession has watched with a risk-based approach to customer Sinterest to see if the report would result identification and verification in SA. in any changes in the country. This It is a trite principle of law in SA that month’s edition of De Rebus is a reflection banks are not legally compelled to give of what has been unfolding in the country reasons for terminating relationships or over the past few years, which climaxed closing customers’ accounts. However, with the resignation of former President due to political dynamics and other on 14 February. policy developments within the financial In our letters section, Leslie Kobrin regulatory framework of SA it seems as lends his opinion on the Constitutional though this is about to change (see p 26). Court case Economic Freedom Fighters In our law reports section, the and Others v Speaker of the National Supreme Court of Appeal case of Zuma Assembly and Another (CC) (unreported v Democratic Alliance and Others case no CCT76/17, 29-12-2017). The letter 2018 (1) SA 200 (SCA); [2017] 4 SA All Mapula Sedutla – Editor highlights the need for an independent SA 726 (SCA), demonstrates that in judiciary that is able to discharge its fact controversy surrounding former obligation without fear, favour or President Zuma dates back to 2007 when Would you like to prejudice. This is important particularly he was elected president of the African during a time when the Executive is National Congress (see p 37). write for De Rebus? riddled with controversy (see p 4). In the opinion section, Ndivhuwo De Rebus welcomes article contri- In the Law Society of South Africa Ishmel Moleya’s article notes that butions in all 11 official languages, (LSSA) news section, the LSSA welcomed although lawful, the appointment especially from legal practitioners. the decision by the National Executive of sitting judges to preside over Practitioners and others who wish Committee (NEC) of the African National commissions of inquiry is an undesirable Congress to recall President Zuma practice. The opinion article notes to submit feature articles, practice amid all the allegations of corruption that the appointment of Deputy Chief notes, case notes, opinion pieces related to the imminent reinstatement Justice Raymond Zondo to preside over and letters can e-mail their contribu- of the ‘spy tapes’ criminal charges, the commission of inquiry stipulated tions to [email protected]. and the allegations around complicity by the State of Capture report, should The decision on whether to pub- in state capture. In addition, LSSA Co- be welcomed as it will bring integrity lish a particular submission is that chairpersons Walid Brown and David into the works of the commission. of the De Rebus Editorial Com- Bekker have noted that public officials However, this brings into sharp focus mittee, whose decision is final. In should be prepared to step down and the question of the appropriateness of general, contributions should be offer to resign at the mere suggestion of appointing serving judges to preside useful or of interest to practising impropriety on their parts (see p 17). over commissions of inquiry (see p 47). attorneys and must be original and Highlighting how corruption impacts Legal practitioners are reminded, in on the financial regulatory framework various articles in our AGM news and not published elsewhere. For more of South Africa (SA), in our cover feature news section, that during Apartheid it information, see the ‘Guidelines article Nkateko Nkhwashu writes about was lawyers who brought about change for articles in De Rebus’ on our the genesis of the ‘Gupta clause’. The and held the state accountable for its website (www.derebus.org.za). basis of this feature article is two wrongdoings. Therefore, practitioners • Please note that the word limit is pieces of legislation. The first being the should not be bystanders and watch 2000 words. Financial Sector Regulation Act 9 of 2017, while the state is overtaken by corruption • Upcoming deadlines for article which seeks to establish a dual system (see p 5 and 9). submissions: 19 March and 16 April of financial regulation in SA comprising 2018. of the Prudential Authority and the q

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DE REBUS – MARCH 2018 - 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.

Value of a minority curred with the finding of the majority. their responsibility to ensure that the It is instructive for me to quote verbatim National Assembly acts in accordance judgment from this judgment from paras 280 and with the Constitution.’ 281 thereof: It would do us well to bear in mind On 29 December 2017, judgment was ‘[280] It is part of constitutional ad- that the hallmark of an independent ju- handed down by the Constitutional diciary discharging their obligation with- Court (CC) in the matter of Economic judication that, as in this matter, there out fear, favour or prejudice is the ability Freedom Fighters and Others v Speaker may be reasonable disagreement among of different agile minds reaching a dif- of the National Assembly and Another judges as to the proper interpretation ferent conclusion and outcome on being (CC) (unreported case no CCT76/17, 29- and application of the Constitution [this presented with the same facts in the case 12-2017) in which the majority of the is true of adjudication in other spheres before them. court held, inter alia, that the National as well. Compare Phakane v S (CC) (un- Leslie Kobrin, attorney, Assembly failed in following its consti- reported case no CCT61/16, 5-12-2017) tutional obligations to hold former Presi- at para 61]. The respective merits of op- dent Jacob Zuma to account for having posing viewpoints should be assessed Erratum violated his oath of office and to uphold on the basis of substantive reasons ad- The headline in the article by Dr Fareed the Constitution following the remedial vanced for them. There is nothing wrong Moosa ‘Remuneration of benefits from a action recommended by the Public Pro- in that substantive debate being robust, will: Who is a “spouse”’ (2018 (Jan/Feb) tector in respect of the upgrades to his but to attach a label to the opposing view DR 28) was published incorrectly, and Nkandla homestead. does nothing to further the debate. should read: ‘Renunciation of benefits Noteworthy in this matter were two [281] For the reasons lucidly set out from a will: Who is a “spouse”’. De Rebus dissenting judgments handed down by in the second judgment [being the ma- would like to apologise for the mistake Chief Justice and jority judgment of Judge ], I and for any inconvenience caused in the Deputy Chief Justice Raymond Zondo. do not agree with the reasoning of the matter. This very fact resulted in a rather vo- Chief Justice and the Deputy Chief Jus- q cal criticism by the political leadership tice in their respective judgments. I do of the Economic Freedom Fighters of not, however, consider the different out- the conduct of the Chief Justice for hav- come that they reach to be the product Do you have something that ing publicly insisted that his dissenting of anything other than a serious attempt you would like to share with judgment be read. to grapple with the important constitu- the readers of De Rebus? I submit that criticism of this is inap- tional issue at hand. The fact that I do propriate and misplaced particularly in not agree with their reasoning or the out- Send your letter to: the light of the judgment handed down come that they propose does not mean [email protected] by Judge who con- that I consider them to have abdicated

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DE REBUS – MARCH 2018 - 4 - AGMAGM NEWS NEWS LSNP AGM: Lawyers should give back to society

he Law Society of the North- you are self-obsessed with legal mat- ern Provinces (LSNP) held its ters only, and not care that our country, 125th annual general meet- South Africa is on the road of joining ing and conference late last many other failed African states. ... Our year at Sun City. Speakers at country, South Africa is in a massive Tthe conference included Commander in crisis, crisis of economic exclusion of Chief of the Economic Freedom Fighters, black majority and African sympathique. Julius Sello Malema; and Judge President As we stand here, more than 30 million of the Mpumalanga Division of the High South Africans live below the poverty Court, Judge Malesela Francis Legodi. line. Almost 10 million South Africans Outgoing President of the LSNP, Lute- who need jobs are jobless. The rich are ndo Sigogo, opened the proceedings by getting richer and the poor are getting saying 2017 marks a monumental year poorer. The spaces of reserve labourers in the legal profession in the country. He created by Apartheid, the villages, the added: ‘In the Northern provinces, which townships, the hostels are not improv- makes up this law society, it marks the ing. They continue to produce poverty completion of 125 years since the incor- and suffering the same way they did porated Law Society of the Transvaal was under Apartheid. The racial economic established in 1892. This is probably the inequalities for even children born post final year in which we will congregate in 1994 are still defined along the lines of this form, as in terms of the Legal Prac- Commander in Chief of the black poverty and white privilege.’ tice Amendment Bill 2017 the lifespan of Economic Freedom Fighters, Mr Malema noted that big law firms in the law society is expected to come to an Julius Sello Malema, addressing the country are white owned. He asked: end by not later than 31 October 2018. attendees at the Law Society of ‘Why are black lawyers not starting big The new dispensation under the Legal the Northern Provinces AGM held black owned law firms, which will treat Practice Council will take effect.’ late last year. Mr Malema said candidate attorneys with some degree Reflecting on what the law society in the question the legal profession of respect? The biggest law firms in its current form means, Mr Sigogo said: should ask itself is: What value is South Africa should be owned by black ‘As we prepare ourselves to welcome the the profession adding to society? people because this is a majority black new era, we must also reflect on what the people’s country. The state should use law society in its current form means to section 9(2) of the Constitution to pass us. It gives us mixed feelings. Some of an attorney on the basis that he was legislation that gives preference to black us see it as a great legacy spreading over not a South African, because as a result owned law firms and resolve that all gov- a period of more than a century. It has of Bantustans law he happened to fall ernment departments and entities at all been there since 1892 save for Eastern under the then Republic of Bophuthat- levels should brief black law firms.’ province closure as a result of the 1899 swana. We should remind each other Commenting on the Legal Practice Act Anglo-Boer war. During this period it that when we close this law society and 28 of 2014 (LPA), Mr Malema said the regulated the affairs of the profession, usher in the Legal Practice Council, we LPA should be a platform to drive deep- and at the same time protected the inter- say -bye to such an ugly side of the er transformation of the legal fraternity, ests of the public. On the other hand, it history of our society. We open doors to but it does not and will not. He added: protected and developed the interests of the profession, which must be free of all ‘The transformation of the legal frater- its members, the attorneys. But, to some forms of prejudice which held us back as nity means that ordinary people should of us, it is such a monster which terror- a nation for many years.’ gain access to quality legal representa- ised members because of the colour of tion wherever they are and whichever their skin and gender.’ Lawyers as economic class position they are in. It looks like Mr Sigogo went on further to state: freedom fighters majority of legal practitioners are con- ‘It is this law society in 1909, which op- tent with the status quo of a legal frater- posed the admission of Alfred Mangena, Addressing delegates at the AGM, Mr nity that only service rich people. How the first black, in fact the first African, Malema began his address by saying: ‘I many of you as lawyers offer legal ser- to be admitted as an attorney, because am not sure if you chose the rightful per- vices to poor and helpless widows whose he was black. It argued that if Mangena son to come and speak to you, because estates are being robbed by criminals? was to be admitted as an attorney he will when you invite us to come and speak How many of you, as lawyers, commit encourage black people to disregard the to you, you must be prepared to hear that at least 10% of your court appear- law and/or to have more legal disputes things you are not ready to receive, be- ance per year will be pro bono?’ amongst them. Members are in this re- cause we tell the truth the way it is.’ Mr Malema stated that lawyers do not gard referred to the reported case, which Mr Malema went on further to state need to belong to a political organisa- is Mangena v Law Society 1910 TDP that the question the legal profession tion to condemn corruption and theft 649. … It was also this law society in should ask, outside the normal legal of public funds. ‘You do not need to 1978, which opposed the admission of practice is, ‘What value is the profession be a politician to stand against capture – now recently retired adding to society?’ He added: ‘The ques- of state-owned companies. Do not ever Deputy Chief Justice of the country – as tion you must ask yourself is whether think that court appearances and mak-

DE REBUS – MARCH 2018 - 5 - ing light heated comments on social me- swering that question he said: ‘It is said a dia is adequate. Robert Sobukwe, Nelson great lawyer is the one who has analytic Mandela, OR Tambo, Duma Nokwe, and skills, the one who is creative, the one many others understood that the battles who has research skills, inter-personal had to be fought in court, but also on the skills, legal thinking ability, persever- streets.’ ance, public-speaking skills. It is the one Speaking about land expropriation who pursues continuous education, the without compensation, Mr Malema one who has reading comprehensive said: ‘In the absence of taking [land] … skills and writing skills. … Success in a through legislation and through intro- profession as lawyers is ideally meas- duction of progressive laws, nothing has ured by your ability to serve not only happened. We said, willing buyer, willing your clients because they pay you, but seller of the land. There is no money. I also your ability to serve those who can- said to you black people are becoming not pay you anything. You do this by of- poorer and poorer, where will you get the fering yourself to them. A true success- money to buy the land? Okay, let us say ful lawyer is the one who is motivated by you are fortunate … you have the money loving concern rather than a desire for to buy the land, there must be a willing personal glory. In that way you become seller. There is no longer a willing seller, a true servant of our society. There is a even if you have the money. And in the Judge President of the wrong perception that to be a successful absence of the willingness to sell, the Mpumalanga Division of the lawyer you need to make a lot of money. land will remain in the hands of the mi- High Court, Judge Legodi spoke That is wrong.’ norities. We must come up with a legisla- about what it takes to be a great Speaking about the LPA, Judge Presi- tion that says we need this land shared lawyer. dent Legodi said that the purpose of the amongst our people. And when we say LPA, among others, is one, to broaden we are expropriating the land for equal access to justice by putting in place a redistribution, they say you want to take people. Do not take advantage and say mechanism to determine fees chargeable land from white people. Listen to me, no, because it is us [black lawyers] they by legal practitioners for legal services for equal redistribution, not for black will empower us. You have to earn it. rendered, that are within the reach of the distribution. Both black and white must You must sweat for it, because your fail- many people. ‘Two, to broaden access to own the land equally. There is nothing ure is a failure of the whole village. … justice by putting in place measures to special about whites that they must own Please, let us provide proper service. But provide for rendering of community ser- more land than black people. We must also we must prove to those who say we vice by candidate attorneys. This is sec- own this land equally. I do not want to are inherently incompetent.’ tion 3 of the Legal Practice Act. … The go into the history of how the land was purpose is loud and clear. These candi- taken from our people, we all know that. How to be a great lawyer date attorneys are going to need your We are not calling for vengeance. We are The second speaker at the AGM, Judge guidance and mentorship. They should calling for a demographic process to re- President Legodi, began his address by not be made to feel like they are being distribute the land. Let everybody buy speaking about the division he is de- made money-making machines, or fil- in, black and white, because if it is not ployed to. Judge President Legodi said: ing machines. Remember, the experience done in an orderly manner through leg- ‘In terms of subsection 3 of section 6 and knowledge you have acquired in the islation, through a demographic process, of the Superior Courts Act [10 of 2013 course of time is meant to be passed revolution is unavoidable. And you will (the Act)], the Minister must determine over to others for generations to come. lose this land through a revolution, and the area of jurisdiction of the Mpuma- Take them to those villages where many an unled revolution is anarchy. Both me langa division. That has not taken place of us come from to make them under- and you will be victims.’ as yet. As a result, in terms of subsec- stand what it takes and means to be a Mr Malema noted that new female en- tion 2 of section 50 of the Act, the Gaut- true community worker, hoping that trants into the legal fraternity should eng division continues to function as be empowered. He cautioned male law- the Mpumalanga division until a notice yers by saying ‘women are not tools to as contemplated in subsection 3 of sec- be used in the bedroom. When you see tion 6 is published. Therefore, we are women, you must see an equal partner, still dependent on the division and then you must engage from the for judges to operate in Mpumalanga same level’. division of the High Court. For this we Speaking about black lawyers, Mr are greatly indebted to Judge President Malema said: ‘Black lawyers, many of you Mlambo for his generosity and guidance.’ disappoint us. When you provide ser- Speaking about transformation, Judge vices to your fellow blacks you are not President Legodi noted: ‘I have made an professional. Blacks do not treat each undertaking that transformation and other with respect. ... I use both black gender sensitivity in the judiciary will be and white lawyers, of course preferably one of my priorities. Most of the practi- black for historical reasons. I empower tioners who are appearing in our division black people. I have never had a white on a daily basis are young, determined lawyer saying to me, “oh, Chief, I forgot ladies. I think they are going very far, that letter”. Never. But it is always the despite the tough time which they have case with our brothers. … Empowerment in court from the Bench. Not very long, of black people does not mean empower- their actions and competency … will be Incoming President of the Law ment of laziness. Empowerment of black speaking for them.’ Society of the Northern Provinces, people does not mean empowerment of Judge President Legodi asked: ‘What Sbu Gule. mediocrity. We need quality from black does it take to be a great lawyer?’ An-

DE REBUS – MARCH 2018 - 6 - AGMAGM NEWS NEWS when they complete their period of arti- Fund (AFF), Strike Madiba, who gave a re- • Black Lawyers Association’s Contribu- cles they will find it necessary to return port on the AFF. tion to the transformation of justice not to those villages and serve. There can be • Co-chairpersons of the Law Society of underestimated 2017 (Dec) DR 10. no basis not to embrace these noble val- South Africa (LSSA), Walid Brown and • National unified body for the legal ues underpinned in our Constitution as David Bekker, who gave a report on the profession discussed at FSLS AGM 2017 contemplated in the Legal Practice Act,’ LSSA. (Dec) DR 13. Judge President Legodi added. • Chairperson of the Attorneys Develop- • South Africans must defend their inde- Other speakers at the AGM included: ment Fund (ADF), Nomahlubi Khwinana, pendence for the judiciary and value its • Member of the National Forum on the who gave a report on the ADF. strength 2018 (Jan/Feb) DR 4. Legal Profession, Kathleen Matolo-Dlepu, who gave an update on the work done See also: Mapula Sedutla thus far by the National Forum. • Separation of powers discussed at [email protected] • Chairperson of the Attorneys Fidelity KZNLS AGM 2017 (Dec) DR 6.

ADF will still exist in the new dispensation

he Attorneys Development details are given about the amount relat- Fund (ADF), held its annual ing to each beneficiary or their names general meeting (AGM) on 6 because of the privacy laws involved. He February in Johannesburg. added that they do not record beneficiar- Chairperson of the ADF, ies as debtors. It was suggested from the TNomahlubi Khwinana, said the portfo- floor to the ADF board that beneficiaries lio and finances of the ADF are in good should be recorded as debtors, so that order. She announced that the ADF will they would be encouraged to pay back be taking an independent route from the loans to the ADF. the Law Society of South Africa (LSSA). Co-Chairperson of the LSSA, Walid Ms Khwinana added that there are some Brown posed a question to the board legal practitioners who have not heard of members of the ADF about their busi- the ADF. However, she pointed out that ness strategy and plans going forward the ADF is in collaboration with the At- in the new dispensation when the Legal torneys Insurance Indemnity Fund NPC Practice Act 28 of 2014 (LPA) is fully op- The Attorneys Development (AIIF), the LSSA’s Legal Education and erational. Fund (ADF) Chairperson, Development division (LEAD), the Kwa- Mr Mukansi said the business strategy Nomahlubi Khwinana, at the ADF Zulu-Natal Law Society Library, Lexis- document was drafted and completed in annual general meeting Nexis and the Southern African Legal October 2017. He added that the docu- held on 6 February at the Information Institute (SAFLII), to get the ment states that an informed decision Emperors Palace Convention ADF out there where it can be known. was taken to have the ADF as a finan- Centre, in Johannesburg. Chief Executive Officer, Mackenzie cially running operation independent Mukansi, in his report, said the ADF has from the LSSA. He noted that the busi- 33.33% beneficiaries are African females. given funding to 15 law firms during the ness strategy document has not formally Mr Mukansi added of the 2016 assisted 2016/2017 period, and the statistics of been reviewed by the ADF board mem- beneficiaries, 75% of the firms assisted those who were assisted are as follows: bers as the document was sent to the were partnership consisting of African 53,33% of beneficiaries were African board members in late 2017. However, females and 25% African males. He noted males, while 13,33% were white males, he said the document will be reviewed at that 64% of the assisted sole practition- a workshop in 2019. ‘By 2023 it needs to ers were African males, with 18% being be something that is a living document African females and white males. that the ADF abides by, aligned with our Mr Mukansi pointed out that 66, 67% memorandum of cooperation, aligned of the beneficiaries assisted in 2016 with the new dispensation being the were from Gauteng, followed by KwaZu- LPA,’ Mr Mukansi said. lu-Natal at 26, 67% and the ‘You will see some of our documen- at 6,67%. He said the ADF hoped that tation already starts talking to our new some of the beneficiaries they have as- name. We will indulge you on that in the sisted would pay back their loans to the November AGM, for you to ratify us to ADF, so that the organisation can assist move from being the ADF to being the other applicants who need assistance. Legal Practitioners Development Fund,’ A question from an attendee was Mr Mukansi added. He noted that the posed from the floor. The attendee ADF focuses on development and ad- wanted to know if beneficiaries were re- vancement of legal practitioners. The corded as debtors, until such time they next ADF AGM will be held in November. have paid back their loans and also who The Attorneys Development Fund the beneficiaries were. Mr Mukansi said CEO, Mackenzie Mukansi, spoke the ADF was shying away from nam- Kgomotso Ramotsho, ing beneficiaries, due to the nature the at the ADF AGM. [email protected] ADF’s statutory requirements, not much q DE REBUS – MARCH 2018 - 7 - NEWS 2017 prize winners for best articles in De Rebus

ohannesburg attorney, Emile My- Mr Myburgh said the importance of his burgh, has won the 2017 LexisNex- research in regards to his article, is that is Prize for the best article contrib- creditors need not first liquidate a com- uted to De Rebus by a practising pany before going after rogue directors. Jattorney. Mr Myburgh won best Mr Myburgh has won a Lenovo Tablet, prize for his article titled ‘Holding de- as well as one year’s free access to one linquent directors personally liable’ pub- practice area of Practical Guidance. Mr lished in 2017 (July) DR 29. The article Myburgh said he was stunned and very discussed how a creditor can hold a di- happy for being chosen a winner on his rector personally liable for unpaid debts first ever article submitted to De Rebus. owed to them by a company in light of Johannesburg candidate attorney, Ale- the small but growing body of jurispru- cia Pienaar, won the 2017 Juta Law Prize dence dealing with directors’ liability un- for best candidate attorney article for her der the new Companies Act 71 of 2008. article titled ‘Overview of air quality reg- ulatory developments’ published in 2017 Johannesburg candidate attorney, (Dec) DR 38. Her article discussed how Alecia Pienaar, won the 2017 climate change has been on the agenda Juta Law Prize for best candidate since 1993 when South Africa (SA) first attorney article for her article became a signatory to the United Nations published in De Rebus in Framework. She said the ratifications of December 2017. the Paris Agreement in November 2016 has introduced a spur of developments create numerous lacunas and ambigui- to the air quality regulatory regime. She ties that industries will have to navigate added that the movement interlinks with across as they seek to bring their opera- the mitigation component of SA’s Inten- tions into compliance. Ms Pienaar added dent Nationally Determined Contribu- that she is elated and inspired as this tion, which commits to a peak, plateau serves as a reminder of the relevance of and decline of greenhouse gas emissions her chosen field of law and that there is trajectory range. value in consistently reading up and writ- Ms Pienaar came to the conclusion that ing on legal development. Ms Pienaar won Johannesburg attorney, it is clear that there is a commitment to a tablet device and one year’s subscrip- Emile Myburgh, has won the move towards a formally regulated cli- tion to Juta’s online Essential Legal Practi- 2017 LexisNexis Prize for the best mate change framework. Although pro- tioner Bundle worth R 25 000. article contributed by a gressive, the environmental law regime, practising attorney. The article and in particular the quality sector, is was published in De Rebus Kgomotso Ramotsho, already defined by continuous prolifera- in July 2017. [email protected] tion of legislation. She said this will likely

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DE REBUS – MARCH 2018 - 8 - Progress only achievable through a united profession discussed at NADEL’s National Young Lawyers Summit

he National Association of a negative impact on new entrants to the Democratic Lawyers (NADEL) profession and requires urgent attention held its National Young Law- and correction, he said. yers Summit from 26 to 27 ‘What we need is an enabling environ- January. The purpose of the ment for the admission and registration Tsummit was to engage with young peo- of new legal practice entrants, of whom ple in the profession regarding to the the majority are young lawyers. This anticipated changes in the Legal Practice must be guided by the principles of non- Act 28 of 2014 (LPA). racialism and non-sexism, and correct NADEL President, Mvuzo Notyesi, wel- the historic imbalances,’ he said. comed delegates to the summit and said Mr Nzimande then turned to the role this was an opportunity to engage in dia- of legal practitioners in defending South logue of the future of the legal profes- Africa’s democracy, fighting poverty sion. He said the legal profession needs and inequality in society. ‘In this regard to be looked at from different perspec- young lawyers have their cue to take tives, one being the kind of legal educa- from lawyers such as Joe Slovo, Oliver tion that must be provided. National Association of Tambo, and others who Mr Notyesi said legal practitioners Democratic Lawyers (NADEL) dedicated their lives to selflessly serving have a prominent role to play in democ- President, Mvuzo Notyesi, the people exceptionally,’ he said. racy. ‘The role of lawyers is to ensure the welcomed delegates to the NADEL Mr Nzimande noted that in the lib- promises made in the Constitution are National Young Lawyers Summit eration struggle there was also a strug- realised and recognised. It is only when and said this was an opportunity gle for the loyalty of professionals and we are a united, organised profession to engage in dialogue of the this was where organisations, such as that we will achieve that,’ he said. future of the legal profession. NADEL, contributed to the defeating of Mr Notyesi noted a number of impor- Apartheid by stating that its profession- tant issues surrounding the profession. als were not ‘neutral’, but instead took tional oppression and gender discrimi- He said there were serious discussions on the side of freedom. nation. These realities defined the law what must happen to the Law Society of Mr Nzimande cautioned that one of and the composition of both the judici- South Africa (LSSA). He also commented the biggest threats facing young profes- ary and various legal bodies such as law on the LLB accreditation and highlighted sionals and young legal practitioners to- societies. South Africa is yet to achieve the discussion on uniformed training for day is the emergence of what he called a full transformation of the legal practice and attorneys, noting that the ‘parasitic bourgeoisie’, which manifests landscape. Many old order practices, in- LPA refers to ‘legal practitioners’. The itself in the form of corruption and state cluding discrimination, overt or covert, ‘intensity’ of the respective training has capture. ‘Any country that has corrupted along the lines of race and gender, re- cause serious debate, he added. its professionals has no future,’ he said. main,’ Mr Nzimande said. Mr Notyesi commented on the dif- In concluding, he offered young law- Mr Nzimande noted the Legal Practice ficulty in joining the profession today, yers five points: Amendment Act 16 of 2017 was gazet- adding that if an LLB student is unable ted on 18 January. It contains steps that to secure articles they might have to give will help enable the transformation of up on their aspiration of joining the legal the legal profession. ‘In this regard, the profession. role of young lawyers is to ensure that In concluding, Mr Notyesi announced old order practices associated with the the launch of NADEL’s constitutional landscape of old order law societies, are training programme. He said NADEL not carried forward to the new Legal would like to see students and young Practice Council (LPC), both at national lawyers being of assistance at advisory and provincial levels. In particular, all centers, where people may go to receive forms of racial and gender discrimina- advice on Constitutional issues. tion, mistreatment and victimisation, Unfair discrimination must or any unfair discrimination, must be stopped and prevented from occurring be stopped again,’ he said. Member of Parliament and General Sec- Mr Nzimande said the ‘energy’ of retary of the South African Communist young legal practitioners was needed at Member of Parliament and Party, , gave a message the forefront to bring about this change. General Secretary of the South of support and congratulated NADEL on Mr Nzimande noted a worrying prac- African Communist Party, Blade its youth initiative. tice that still continues to this day is the Nzimande, gave a message of sup- ‘Under the colonial Apartheid regime, discrimination of black legal practition- port and congratulated NADEL on black women suffered triple oppression ers. Most law societies still remain white its youth initiative. in the form of class exploitation, na- and predominately male and this creates

DE REBUS – MARCH 2018 - 9 - NEWS

rate/commercial lawyers, family lawyers, Legal Profession (NF), Krish Govender, personal injury lawyers, etcetera. ‘They Deputy President of the Black Lawyers say this as if these practices are distinct Association (BLA) and member of the NF, from and totally unrelated to Constitu- Mashudu Kutama, and Co-chairperson of tional law and practice. Well that is a fal- the LSSA Walid Brown. lacy,’ he said. Mr Govender, spoke on some of the is- Justice Madlanga said it is time all le- sues that the NF had to grapple with and gal practitioners took to heart the words said that the issue of practical vocational of Judge Chaskalson in Pharmaceutical training remains unresolved. Manufacturers Association of SA and An- Mr Kutama, spoke on the future of the other: In re Ex Parte President of the Re- profession and said moving forward it public of South Africa and Others 2000 cannot be business as usual. If the legal (2) SA 674 (CC), which held: ‘There is profession is to continue in the same only one system of law. It is shaped by way, the people in the old structures will the Constitution, which is the supreme be the same people in the new structure. law, and all law, including the common Mr Brown, said the coming into effect law, derives its force from the Constitu- of the LPA and the LPC is only going to Constitutional Court Justice, tion and is subject to constitutional con- be ‘positive news’, particularly for young , spoke on trol.’ black attorneys. ‘This is going to be the bringing back honour to the legal Justice Madlanga pointed out that the dawn of a new age for attorneys in the profession. Constitution permeates all areas of the country. For one thing it guarantees that legal landscape. the balance of power in the profession is Noting the importance of the Constitu- going to shift forever,’ he said. tion in legal education, Justice Madlanga • The importance of young lawyers or- quoted Justice who said: ‘We ganising themselves such as they have can no longer teach the lawyers of to- done and are doing under the umbrella morrow that they must blindly accept of NADEL. legal principles because of the author- • To support and network among them- ity. No longer can we responsibly turn selves and resist the temptation of easy out law graduates who are unable to money that may destroy their career. critically engage with the values of the • To work towards the development of Constitution and who are unwilling to a progressive jurisprudence that must implement those values in all corners of be underpinned by fighting inequality, their practices. A truly transformative unemployment, poverty, and to advance South Africa requires a new approach the interest of the most marginalised in that places the Constitutional dream at society. the very heart of legal education.’ • That the transformation of the legal In conclusion, Justice Madlanga said profession cannot be separated from the any legal practitioner who practices and overall transformation of South Africa, does not place the Constitution at the such that black legal practitioners have forefront of their practice is failing in the access to legal opportunities in the en- mandate of a legal practitioner. tire legal profession. • For young legal professionals, to join Transformation in the Co-chairperson of the Law Society the struggle against corporate capture of profession of South Africa, Walid Brown, said state and to fight against abuse of state Deputy Minister of Justice and Consti- the coming into effect of the Legal organs, intelligence services and pros- tutional Development, John Jeffery, in a Practice Act and the Legal Prac- ecutorial authority. keynote address, spoke on the LPA and tice Council is going to be positive Bring back honour to the said the LPC will transform and improve for young Black attorneys. access to the profession. profession Deputy Minister Jeffery said if one Constitutional Court Justice, Mbuyiseli looks at the profession from a race and Mr Brown said the LPA guarantees that Madlanga, said legal practitioners need gender perspective one realises much the demographics of the LPC is going to to bring back honour to the profession. still needs to be done in terms of trans- reflect the demographics of the country He said legal practitioners must never be formation. ‘I think overall with the pro- in terms of both race and gender. ‘This party to cheating and never be tainted by fession the higher up you go the less is going to be the era in which the ma- dishonourable conduct. Justice Madlan- transformed it becomes as far as race jority of South Africans reclaim the le- ga said legal practitioners can only prop- and gender,’ he said. gal profession,’ he said. ‘Do we still need erly play their role in the advancement Deputy Minister Jeffery pointed out an attorneys association that speaks on of the rule of law if they conduct them- that more needs to be done to build behalf of [and] represents attorneys?’ he selves honourably with strict adherence black law firms and firms headed pre- asked. Noting that both NADEL and the to their rules of ethics. ‘It is only then dominately by women. ‘As young people BLA would continue after the LPC comes that they can be said to be true to the … you have more space to think freely into operation, and added ‘we still need rule of law,’ he said. and come up with innovative ideas,’ he a body that is going to speak on behalf of Justice Madlanga urged attorneys said. everyone with one voice’. He added that to have more than a superficial under- A panel discussion on the LPA, the there are going to be issues that attor- standing of the Constitution and added regulatory aspects of the LPA and the neys will need to be able to speak as one that for far too long legal practitioners LPC consisted of NADEL National Ex- voice whether it be with government, the have compartmentalised themselves ecutive Committee (NEC) member and LPC or the international community. into fields of speciality, such as: Corpo- member of the National Forum on the Mr Brown also spoke on practical le-

DE REBUS – MARCH 2018 - 10 - gal training and said no agreement was legal practitioner that is able to achieve reached on this issue. He said there was justice for their client and also have the a fundamental difference of opinion be- skills to run their practice. tween attorneys and advocates on this issue so it has been put forward to the LLB degree minister. Lastly, Mr Brown pointed out Deputy Vice-Chancellor of the University that technology will have a huge impact of the , Professor Vivienne on the way attorneys practice going for- Lawack, spoke on the topic of the LLB ward. degree. Some areas that have had an im- pact on the context of the degree was the Legal practitioner values dispensation of a transformative Consti- Chairperson of the LSSA’s Standing Com- tution, evolving IT and globalisation. mittee on Legal Education, Raj Badal, Professor Lawack also said the pur- quoted Supreme Court of Appeal Judge pose of the degree has changed. The first Ronnie Bosielo, who gave the keynote ad- purpose being entry into the profession. dress at the LLB Summit in 2013, saying: The second purpose to prepare students ‘Under South Africa’s constitutional dis- Chairperson of the Attorneys for post-graduate studies. Lastly, the pensation lawyers are constitutionally Fidelity Fund (AFF), Strike Madiba, LLB should not only be for traditional mandated to overcome the dark history spoke on the future of the AFF careers. ‘It should prepare a student to of Apartheid and its deep rooted legacy and Attorneys Insurance Indem- be able to go into a career where law or and to persist in transforming the coun- nity Fund (NPC) at the NADEL legal education would be a requirement,’ try into a constitutional democracy’. National Youth Summit. she said. Mr Badal reiterated values raised by Professor Lawack pointed out that an Judge Bosielo on playing a meaningful LLB is only one ‘cog in the wheel’ of legal role as members of society, training stu- legal practitioners today. He added eth- education. She said there is a collective dents to act ethically, instilling an under- ics was of great importance. responsibility to ensure there is quality standing of the Constitution, inculcating Mr Badal said ethics should be in- education for those in the legal profes- a spirit of ubuntu and social conscious- stilled in every course taught at univer- sion. ‘If we are going to be delivering the ness with reference to the poor, margin- sity. ‘Ethics infuses our very profession. greatest lawyers in South Africa we also alised and vulnerable members of soci- It talks to where we want to be as law- need to embrace the concept of lifelong ety. He said all of these values are part yers,’ he said. He said what is needed is learning,’ she said. and parcel of what NADEL stands for. Mr both a humanitarian legal practitioner Director of the University of Fort Hare Badal asked about the values instilled in and a competent legal practitioner. A Legal Clinic, Nasholan Chetty, said the

DE REBUS – MARCH 2018 - 11 - NEWS

Seehaam Samaai, spoke on the combat- articulate their needs, a part from be- ting of normalisation of sexual harass- ing labelled problematic, the narrative ment in the legal profession and the re- is one of “you should just be lucky you claiming of time, space and agency. have space to do articles,”’ she said. Ms Ms Samaai said ‘we all know that law is Odayan asked what law practices are a profession, which can contribute posi- doing to make their environment safe tively towards society. It has the ability and ready made for a new generation of to transform the lives of the most vul- young people to be inspired, thrive and nerable and marginalised in the most achieve their ambitions? significant way, but it also has the ability to profoundly impact the lives of peo- Recommendations ple, particularly women, if it fails to take At the plenary session, LSSA Coun- into account issues of intersectionality cil Member, Management Committee and how issues of race, gender and class member and BLA NEC member, Fran- impact on the lived realities of women. cois Mvundlela; Mr Notyesi; and Deputy This means that the law cannot be neu- Chairperson of the NF, Max Boqwana Director of the Women’s Legal tral when we deal with issues affecting were presented with the following rec- Centre, Seehaam Samaai, spoke women’. ommendations: on the advancement of the rights Ms Samaai stated that the centre’s pur- of women and the development of pose is to advance the rights of women The LPA black feminist legal practitioners. through strategic litigation, with a com- It is resolved that: mitment to developing black feminist le- • Section 8 of the LPA be amended to in- gal practitioners, putting forth feminist clude a youth representative. jurisprudence and representing women. • Amend s 25(3) on the right of appear- Sexual violence disproportionally im- ance of lawyers and advocates to be the university introduced compulsory clinic pacts women and sexual violence and same. work for all its final year LLB students harassment are common and major bar- • Section 30 should not be an impedi- and this has seen students improve sig- riers in the work place. The legal profes- ment to access to the profession. nificantly. Mr Chetty noted students of- sion is not immune to these practices, • A minimum remuneration amount for ten complain of only learning theory and she said. candidate legal practitioners to be stipu- not having anything concrete to work on. Ms Samaai warned that the power dy- lated. However, through the legal clinic work, namics and skewed power structures in It is recommended that: ‘you are adding a real life person to the the legal profession can be damaging to • When disciplinary action is taken mix,’ he said. women. ‘The current legal process lends against young legal practitioners, reha- The future of the AFF and itself to indirect forms of discrimination bilitative remedial methods should first and secondary forms of victimisation, be considered. AIIF which perpetuates and creates systemic • In terms of r 35 it be noted that quota- discriminatory practices if not addressed tion on legal fees is not always possible. Chairperson of the Attorneys Fidelity in a proper manner by this legal profes- The number of years for a legal practi- Fund (AFF), Strike Madiba, said in terms • sion,’ she said. tioner to take on candidate legal practi- of the LPA the AFF will be called the Ms Samaai noted it is mostly young tioner to be reconsidered. Legal Practitioners Fidelity Fund. The women entering the profession who are board will consist of five legal practition- subjected to sexual harassment. She The AFF and AIIF ers, made up of four attorneys and one called on all men in the profession to . The advocate on the board will It is resolved that: support their female co-workers, stu- have to have a Fidelity Fund Certificate. • An AFF bursary be granted for the en- dents and young women. ‘You must and The Minister of Justice and Constitution- tire duration of the student’s LLB degree. need to be disrespectful and disloyal to al Development and the LPC will each • Further training be offered without a all agents of patriarchy, as well as the designate two persons to the new board. fee payable to prevent mismanagement rules of patriarchy. We cannot remain The AFF will continue to provide fund- of trust accounts and dishonesty. complicit in the violence perpetrated ing for educational needs of the profes- • If the matter of professional indemnity against women’s bodies and cannot nor- sion, said Mr Madiba. insurance is not resolved, all possible malise violence within our structures,’ Mr Madiba said in previous years prac- alternatives be investigated. A summit/ she said. ticing attorneys received free indemnity meeting to be held with a report on pro- Co-founder of Indiba-Africa Group, insurance from the Attorneys Insurance fessional indemnity insurance to furnish advocate Michelle Odayan, said the legal Indemnity Fund NPC (AIIF). This, how- greater transparency. profession is ‘not kind to young women,’ ever, might not be the case in the future. particularly, young women candidate le- Non-regulatory matters This might make it very expensive to gal practitioners. Ms Odayan said young practice in the future and this may have (creating a professional women entering the profession become an impact on those wanting to enter into quickly disillusioned when they come interest organisation) the profession, he added. up against a hierarchical structure en- • Young legal practitioners affirm the Mr Madiba said the AFF and the AIIF trenched in patriarchy and old tradi- need for a professional interest organi- were engaging with members of the pro- tional ways. This is not an encouraging sation. fession and other stakeholders on this environment for smart ambitions young • It is resolved that this organisation matter adding this needs to be done to women when they are faced with ‘yes- must be charged with protecting the in- avoid the risk of high cost of practicing teryear mentalities’ and cultural norms dependent voice of the profession, have acting as gatekeeping to the profession. that do not suit their needs in reality, she the authority to have a union function, Young women in the said. and address – Younger women entering the profes- – transformation in the legal profes- profession sion also need safety and security, she sion; Director of the Women’s Legal Centre, said. ‘The moment young women try to – bias briefing patterns; and

DE REBUS – MARCH 2018 - 12 - – the training of candidate legal prac- that is done when one enters into prac- that candidate legal practitioners can titioners. tice only. phone in anonymously, to report abuse • The material for admission examina- by their principals. The line operator LLB and professional tion to include all material without the should be a qualified counsellor/psy- need to refer to external sources. chologist who will be able to support and vocational training assist the candidate legal practitioner. It is resolved that: Challenges face by young • Young legal practitioners endorse the • The professional interest organisation people/women/candidate NADEL training programme for candi- must always consult law students at ter- date legal practitioners. tiary level regarding the LLB degree cur- legal practitioners It is recommended that: riculum. • It is affirmed that women be given • The programme be pilot tested. Once • Professional vocational training (PVT) equal representation in all structures in approved, it must be rolled out nation- must be one training programme for all the professional interest organisation. ally. It should be mandatory and should candidate legal practitioners regardless • A committee within this organisation be adopted by the LPC as a standard for if they choose to become attorneys or be created to deal with abuse of candi- training candidate legal practitioners. advocates. PVT should also include busi- date legal practitioners. This committee • For the full recommendations see www. ness and financial skills for the manage- should formulate rules and standards derebus.org.za ment of firms. for the treatment of candidate legal It is recommended that: practitioners and disciplinary rules for • PVT must include course material from principals found guilty of ill-treatment Kevin O’Reilly, a practice management training course and abuse. [email protected] and that this not be a separate course • The committee have a telephone line Brazil and South Africa to share ideas on improving the mining sector he Embassy of Brazil in South transformation remains at the centre of Africa hosted a seminar on the SA governments’ policy. legal framework of mining in Mr Oliphant added that the economic TBrazil and South Africa on 7 De- transformation that is spoken about, is cember 2017 in Johannesburg. Depart- the change of the economy whereby SA ment of Mineral Resources Deputy Min- cannot only rely on a system where one ister, Godfrey Oliphant, was the guest moves from point-to-point every time, speaker. In his speech, Mr Oliphant but not creating any values in minerals. said he welcomed the invitation to the ‘We need to start creating jobs, increase seminar as South Africa (SA) continually and improve our skills base, but also seeks to clarify, promote and advance adding value to our minerals,’ Mr Oli- the country’s national interest, most no- phant said. He added that through SA’s tably through perusing SA’s economic government’s policy the MPRDA aims to priorities, namely, combating inequality, ensure the meaningful participation of South Africa’s Deputy Minister high poverty and unemployment. black people in the mining sector. He of Mineral Resources, Godfrey Mr Oliphant added that it is in this re- pointed out that the policy also intends Oliphant, spoke at the Legal gard SA works hard to pursue, greater to reverse the unjust exclusion of black Framework of the Mining Sector trading and investment relations with people from the mining sector. in Brazil and in South Africa other countries such as Brazil, as Brazil Brazilian Ambassador, Nedilson Jorge, seminar. is a significant trading partner for SA. said the Brazilian Congress approved the ‘We have noted with interest the deci- creation of the National Mining Agency, sion by Brazil to abolish a vast national government wants to realise is to make which will have the responsibility to reserve to open the area for commercial the South African economy more inclu- regulate the mining sector, supervise exploration that will stimulate and grow sive, more dynamic and that the fruits of mining activities and observe market the contribution of mining to the Brazil- growth of the economy are shared. competition. He pointed out that the ian economy,’ Mr Oliphant said. He not- Mr Oliphant pointed out that by 2030, mining sector has played a major role in ed that it will enable Brazilians to par- the economy should be close to full em- history for both Brazil and SA. He added ticipate in the development and growth ployment, equipped with skilled people, that it is natural and appropriate that of the economy. ‘We in SA also strive to ensure that ownership of production Brazil and SA come together to discuss ensure that the full participation of our is more diverse and lastly to provide and exchange ideas on the improvement citizens in the economy is realised,’ he the resources to pay for investments. of mining. He said that the government added. He said that the Mineral and Petroleum of Brazil is committed to continuing to Mr Oliphant said the South African Resources Development Act 28 of 2002 propose and encourage the growth of government has taken the decision to (MPRDA), is the principle legislation gov- the mining industry and also intend to radically transform the economy of the erning the mining sector and that there improve technical co-operation with oth- country so that black people, who are the has been an amendment Bill that was er countries such as SA. He added that majority, can meaningfully participate in brought before parliament, which will there is a lot of room for the private sec- the economy of the country. He pointed be ready in 2018. He noted that there tors to jointly make efforts and partner- out that such issues of transformation have been some challenges along the ship to bilateral investments. will enable SA to achieve the goal it has way because of the lack of consultation Kgomotso Ramotsho, and some issues of a substantive nature. set in the National Development Plan for [email protected] 2030. He added that one of the goals the However, Mr Oliphant said the radical

DE REBUS – MARCH 2018 - 13 - NEWS Constitutional Court Justice Bess Nkabinde retires

ustice Bess Nkabinde has retired from the Bench of the Constitutional Court after serving for 12 years. A special ceremonial session was held on 7 December 2017 at the Constitutional Court where Justice Nkabinde delivered Jher final judgment on a labour related matter, Public Servants Association obo Ubogu v Head of the Department of Health, Gauteng and Others, Head of the Department of Health, Gauteng and Another v Public Servants Association obo Ubogu (CC) (unreported case no CCT6/17, CCT/14/17, 7-12-2017). Among the people who attended her final sitting were her fam- ily members and former Justices of the Constitutional Court, including former Justice , former Justice Al- bie Sachs and former Justice Justice Nkabinde’s life in law According to a profile on the Constitutional Court website, Justice Nkabinde was born in Silwerkrans/Tlokweng, North West Province, in 1959. She matriculated from Mariasdal High School, in Tweespruit in the Free State in 1979 and obtained Retired Constitutional Court Justice, Bess Nkabinde, a BProc degree at the in 1983. In 1986, at a special ceremonial sitting at the Constitutional Justice Nkabinde obtained an LLB from North West University. Court in December. Justice Nkabinde has served as a She was awarded a Diploma in Industrial Relations with dis- Justice at the Constitutional Court for 12 years. tinction in 1987 from Damelin. In 1984 to 1988 she worked as a State Law Adviser – Legislative Drafting in Bophuthatshwana. She was admitted as an advocate in 1988 in Bophuthatshwana 2004. From 2004 to 2013, she was the Chairperson of the Rules and commenced her pupillage in 1989 at the Johannesburg Board for Courts of Law. From June to November 2005, she Bar. was the acting Judge of the Supreme Court of Appeal and was From 1990 to 1999 Justice Nkabinde worked as an advocate appointed as the Justice of the Constitutional Court in Janu- at the North West Bar, in civil, commercial, matrimonial, as well ary 2006, while serving at the Constitutional Court, she was as criminal law matters. From February to October 1999, Jus- appointed Acting Deputy Chief Justice from May 2016 to June tice Nkabinde was appointed as acting Judge of the Bophuthat- 2017 and Acting Chief Justice in November 2016. swana Provincial Division. In November 1999, she received a Tributes for Justice Nkabinde permanent placement as judge of the High Court and also was an acting Judge of the Labour Court for one term in Johannes- In his tribute to Justice Nkabinde, Deputy Chief Justice Ray- burg in 2000 and 2003. mond Zondo said Justice Nkabinde had a long journey as far In 2003 she was appointed to serve on the Special Tribunal as her career in law was concerned. He said during her judicial on civil matters likely to emanate from investigations by the career, Justice Nkabinde made a significant contribution and Special Investigative Units established in terms of the Special handed down judgments that provided benefits to a large sec- Investigating Units and Special Tribunals Act 74 of 1996. From tion of society in different branches of law. October 2004 to May 2005, she was acting Judge of the La- Deputy Justice Zondo added that the judgment, Justice bour Appeal Court. Justice Nkabinde was also a member of the Nkabinde handed in her final sitting in the Ubogu case will Sub-committee of the Coordinating Committee of the Justice not only help one person in that particular case, but will help System: On Racism and Sexism within the Judiciary Member in many public service workers who have been suffering under the provisions of s 38(2)(b)(i) of the Public Service Act 103 of 1994. He said Justice Nkabinde would always enquire about her colleagues and ask about their families. ‘She is a wonderful woman’ Deputy Chief Justice Zondo added. ‘I take this opportunity on behalf of my colleagues and behalf of the entire judiciary of South Africa (SA), to say to Justice Nkabinde thank you very much,’ Deputy Chief Justice Zondo said. He added that Justice Nkabinde has served the country well and wished her everything of the best and pointed out that he had no doubt that Justice Nkabinde will continue in different ways to contribute to society. Message from Advocates for

Black Lawyers Association’s President, Transformation Lutendo Sigogo, sharing a joyous moment with retired Advocates for Transformation’s, Anthea Platt SC said she had Justice Nkabinde and the Law Society of South the pleasure of working with Justice Nkabinde when she was Africa’s representative, Attorney Mabaeng Denise the chairperson of the Rules Board. She pointed out that Jus- Lenyai, after Justice Nkabinde’s retirement at tice Nkabinde, in her leadership as chairperson of the Rules the Constitutional Court. Board, placed those she was working with in a position to in- terrogate many rules that have far reaching consequences to

DE REBUS – MARCH 2018 - 14 - the citizens of SA. She added that Justice Nkanbinde remains a Advocates proudly claim you as one of our own,’ Ms Gcabashe beacon of hope and an inspiration to all women lawyers. SC said. The Johannesburg Bar said with conviction that as a ‘You, Justice Nkabinde, and other women justices have representative of your generation, Justice Nkabinde, you not carved the path that shines a way for all women, especially only discovered your mission as a jurist, but with determina- women of colour that it is indeed possible to thrive and make a tion and drive you made all effort to fulfil it. You have indeed mark in the profession, which is in need of diversity and trans- made us proud and thank you for that,’ Ms Gcabashe said. formation’ Ms Platt SC said. She added that Justice Nkabinde’s Ms Gcabashe noted that in Justice Nkabinde’s judgments, success is one of the many reasons Advocate for Transforma- there is a clear record of sensitivity to issues of racism, equali- tion will remain committed to cause in achieving transforma- ty, tradition and culture, physical security and integrity, home- tion in the legal field and access to justice. lessness, fertility and surrogacy, religion, constitutional obliga- tion and many other issues. Message from NADEL National Association of Democratic Lawyers (NADEL) member Message from Parliament’s National of the National Executive Committee, Mfana Gwala, said the Council of Provinces appointment of Justice Nkabinde was an example of how gen- National Council of Provinces’ Chairperson Thandi Modise, der advancement can be achieved. He said Justice Nkabinde’s said Justice Nkabinde, in many of her judgments, has brought retirement comes at a very young age and he believes that she a lot of light into the lives of many people. She noted that she will continue to be of service to the country. had seen the calm and patient manner in which Justice Nka- Message from BLA binde delivered herself when presiding at court and praised Justice Nkabinde on her judgments surrounding the issues of Black Lawyers Association (BLA) President, Lutendo Sigogo, polygamy. ‘We admire you ma’am because many instances you said Justice Nkabinde is living proof that dedication to the have actually come out to say, “I am principled and live by the cause of justice, is what distinguishes great personalities from principles I believe in.” In many instances, we do not do that. the rest. ‘Through her life we learned that success is not deter- We sacrifice ourselves, sacrifice what we believe in, because we mined by gender or race’ Mr Sigogo added. He pointed out that occupying certain positions,’ Ms Modise added. people succeed because they are given opportunities and do their best to fulfil those opportunities. Mr Sigogo said Justice Word by Justice Nkabinde Nkabinde transmitted beyond her race and gender and in her Justice Nkabinde said that the occasion was a moving moment there is a true meaning of what the word woman means. for her, having been a Justice at the Constitutional Court for 12 Message from the GCB years. She thanked her family, colleagues, clerks of the court and the communities of Madikwe and Mahikeng for the sup- Representing the General Council of the Bar (GCB), advocate Craig Watt-Pringle SC, said he had gathered information from clerks of court who had previously worked with Justice Nka- binde. He said they had described Justice Nkabinde as a caring, warm and approachable person who took interest in others. He added that she was also generous about sharing her experience  as a woman in the legal profession, particularly about the chal-  lenges women face.  Message from the NPA  National Prosecuting Authority’s (NPA’s) Director of Public  Prosecution in South Gauteng, Andrew Chauke, said the NPA  %%"&"!" $&$&"$%"'&$! $  was fortunate and humbled to have been associated with Jus-  tice Nkabinde. He added that the NPA was indebted to Justice  ! &$!&(%#'&%" '&"!"$!%&"!! Nkabinde for her counsel and guidance. ‘We will remember her "'&$! $ for the many cases she has presided over,’ Mr Chauke said. !&%"! $"& %%"&"!$  • Message from the LSSA '&!  &$  +) %  $%&!(&&$ %&&'%$! &&! %%!&&!!)  Law Society of South Africa (LSSA) representative, Mabaeng  Denise Lenyai, said Justice Nkabinde has been true to her vi- •  !)%"%&&'%% #'$+'"! %'%%' sion as a humble servant of the people, as a role model and as ! "&! !&&)!*$!)%"  %%!  !'$%+ a jurist who has moulded SA’s jurisprudence and society with  $%$!$ %%! &!&" !$&$&!$%$!  great respect throughout her career. She pointed out that in an )""! &  &%$  interview for the Constitutional Court oral history project, Jus-  !!) !'$%%$ !)!" !$$%&$&!    tice Nkabinde noted that the court is imbued with the wisdom of having diverse voices. • $& !'$%!$ (!&%  &&!$ *%  ‘There is a need to have such voices, societal voices, so that • $&&  $&$&!  you can have a rich jurisprudence at the end of the day. Justice • !)%"  %%!  !'$%  Nkabinde’s voice has been such a voice. On behalf of the attor- • "%&!   ! %&$'&! ) neys’ profession, we acknowledge and thank you for your con-  tribution to the law, to the Constitutional Court, to the legal %&$&"! "%!& profession and to the citizens of our rich and diverse country,’  $'$*  Ms Lenyai said.  Message from the Johannesburg Society ! $! *%   &! %   of Advocates "'$%""$!&"$ $&$&"$%"+     )))$&$&"$%"+'&"! The Johannesburg Society of Advocates, Vice Chairperson, ad-                  vocate Leah Gcabashe SC, said Justice Nkabinde was one of the         most distinguished jurists. ‘We as the Johannesburg Society of

DE REBUS – MARCH 2018 - 15 - NEWS port they have showed her through her journey. She particu- them. She said the separation is only in a service of common larly thanked her husband and children for putting up with her principles and that the powers are all in the rule of law to re- imperfections, and absenteeism at home and keeping up with alise the principles that are constitutional and fundamental. ‘I her abnormal hours while she was serving the nation. am saying this with the greatest respect, by the failure to com- Justice Nkabinde added that December 2017 marked 12 prehend the equal obligations of all three arms of government, years for her as a Justice at the Constitutional Court, but also to promote constitutional values, my observation over the 12 marked 18 years for her as a Judge of the High Court, Labour years of my service in this court particularly suggest that if the Court, Labour Appeal Court, Supreme Court of Appeal and the other arms of the government were to embark on legislative Constitutional Court. She reflected also on the opportunity and executive process, characterised by the applicable consti- that she had to act as a Deputy Chief Justice for 11 months, as tutional values, the judiciary will play a far significantly less well as an acting Chief Justice for one month. ‘The opportuni- central role than it is present required to do,’ she said. ties to serve our people in different capacities have undeni- Justice Nkabinde pointed out that the policies and implica- ably been a privilege in my life,’ Justice Nkabinde said. She tions are approved with no or less regard to the constitutional pointed out that all this was through God’s grace and blessing values and for that the courts are and will always be in a far and the support and encouragement from her family, friend’s busier time and will constantly be perceived as overreaching colleagues and communities. when they are exercising their constitutional responsibility. Justice Nkabinde pointed out that it was a single reason As she concluded, Justice Nkabinde said one of her wishes that triggered her into practising law. She said she resigned was to have more women appointed in the judiciary, particu- from the public service in the former Bophuthatshwana, for larly in the Constitutional Court Bench. She noted that it was a simple reason of inequality. She added that together with long overdue and it had to happen for obvious reason, not be- her other colleagues they were treated differently from others cause it is a question of numbers. ‘We must find women with and that she took offense to that and objected to the injustice, potential, we with my sisters and brothers who are committed particularly because no reason whatsoever or any justification to a transformative agenda must assist in training to make this was given for the unfair discriminatory. ‘When I was threat- ideal,’ Justice Nkabinde said. ened with all sorts of things I resigned and believed I could be a voice for those who cannot defend themselves,’ Justice Nkabinde said. Justice Nkabinde spoke about the relationship of the three Kgomotso Ramotsho, arms of government, namely, the legislature, the executive and [email protected] the judiciary in terms of what they share and what separates q

PEOPLE & PRACTICES People and practices Hogan Lovells in Johannesburg has Compiled by Shireen Mahomed two new appointments.

Christine Rodrigues John Roderick Graeme Polson and Jean Polson have formed a partnership and are has been appointed practicing as Polson Attorneys in Johannesburg. Jeanette Bodemer has been ap- as a partner in the pointed as an associate conveyancer. finance department. From left: Jean Polson, Jeanette Bodemer and John Roderick Graeme Polson.

Mzamo Nkosi has been appointed as an associate in the employment department.

Abrahams & Gross in has two new appointments. Clyde & Co in Cape Amber Lotz has Nicole Gerber has Town has promot- been appointed been appointed as ed Kate MacKay as as an associate in an associate in the an associate. She the conveyancing family law, divorce specialises in insur- and property law and litigation de- ance and litigation. department. partment.

q

DE REBUS – MARCH 2018 - 16 - LSSA NEWS

Compiled by Nomfundo Manyathi-Jele, Communication Officer, Law Society of South Africa e-mail: [email protected]

LSSA discusses way forward after implementation of LPA

he Co-chairpersons of the Law Society of South Africa (LSSA), Walid Brown and David Bek- ker, are currently hosting information sessions on the Tway forward after the implementation of the Legal Practice Act 28 of 2014 (LPA). The sessions are being held around the country and are in the form of infor- mal discussions on the year ahead and what attorneys can expect once the LPA comes into operation fully. At the ses- sions the LSSA shares its thoughts and hears the views of attorneys on: • Changes to be brought about by the LPA and how these will impact attorneys. • What attorneys concerns are and what LSSA Co-chairpersons, David Bekker and Walid Brown at the they expect. Kempton Park information session on the way forward after • What the LSSA currently does for at- the implementation of the Legal Practice Act. torneys. The session was held at Emperors Palace on 15 February. • What will be available to attorneys as practitioners once the provincial law so- the negotiation process between the Na- sional association is necessary, whether cieties fall away. tional Forum on the Legal Profession and it is possible and how it will work. • The way forward. the four provincial law societies, which Keep an eye on your e-mails to learn At the time of writing this report, the had resulted in the retention of R 50 mil- about information sessions taking place LSSA had held three information ses- lion to be transferred to the professional in your area or e-mail [email protected] sions, namely in Pretoria, Port Elizabeth body. for more information. and Kempton Park where the Co-chair- It was also highlighted that no firm • See also the guest editorial ‘A united persons explained the background to decisions had been made and that the profession is stronger than the sum of the roadshows, the establishment of the views of practitioners were being can- its separate groupings’ written by the LSSA Transitional Committee, as well vassed on whether setting up a profes- Co-chairpersons in 2017 (Dec) DR 3.

LSSA calls for higher standard of ethics and accountability for public officials

n the eve of the resig- In a press statement, LSSA Co-chair- resign at the mere suggestion of nation of former Pres- persons Walid Brown and David Bekker impropriety on their parts, in an ef- ident Jacob Zuma on said: ‘As the legal professionals of this fort at clearing their names without 14 February, the Law country we believe that the time has tainting the department or capacity Society of South Af- come for public officials to hold them- in which they are employed.’ rica (LSSA) welcomed selves to a higher standard of ethics They added: ‘It is only by raising Othe decision by the National Execu- and accountability. For far too long our these ethical standards that we will tive Committee (NEC) of the African public officials have hidden behind the be successful at rooting out the cor- National Congress to recall Presi- statements of “innocent until proven ruption that has taken root within dent Zuma amid all the allegations guilty” and “I have not been found guilty our state entities. Failing which, all of corruption related to the immi- of anything”.’ we will be doing is changing the nent reinstatement of the ‘spy tapes’ ‘This should not be our standard of ac- names of officials and elected lead- criminal charges, and the allegations countability. Instead our officials should ers.’ around complicity in state capture. be prepared to step down and offer to

DE REBUS – MARCH 2018 - 17 - LSSA NEWS

The Future of Our Profession

A professional association for attorneys, young lawyers and practical challenges in the Legal Practice Act

LSSA Annual Conference: 23 and 24 March 2018 Century City Convention Centre, Cape Town

he conference will debate and make recommen- lay representation, open hearings, Fidelity Fund inspections dations for a new association for practitioners, its and the role of the new Legal Services Ombud. membership, core functions, support and other Another session aimed at young lawyers will focus on ‘the services to be rendered to members and its sus- Millennial legal practitioner’ as digital natives, their work- tainability. life balance and the social consciousness challenges facing TThere will be an information session on s 35 of the Legal young lawyers. Practice Act 28 of 2014 (LPA), which sets out the manner Full information is available on the LSSA website at www. for charging fees for legal services under the LPA dispensa- LSSA.org.za under the tag ‘News Media and Events’ then ‘Lat- tion, including the fact that non-compliance with s 35 will est events’. constitute unprofessional conduct. The session will go on This conference will also be presented in Gauteng later to deal with the changes in the disciplinary processes un- this year. der the LPA, which make these more client-centric, including q

2018 Juta Law Prize for the best Candidate Attorney article

a tablet device & Jutastat win online Essential Legal Practitioner Bundle worth R25 000 Juta Law, in conjunction with De Rebus are offering a prize for the best published article submitted by a candidate attorney during 2018. Valued at R25 000, the prize consists of a 32GB tablet with wi-fi & 3G PLUS a one-year single-user online subscription to Juta’s Essential Legal Practitioner Bundle.

Submission conditions: • The article should not exceed 2000 words in length and should comply with the general De Rebus publication guidelines. • The article must be published between January and December 2018. • The De Rebus Editorial Committee will consider all qualifying contributions and their decision will be final.

Queries and correspondence must be addressed to: The Editor, De Rebus, PO Box 36626, Menlo Park 0102 Tel: (012) 366 8800, Fax (012) 362 0969 • Email: [email protected]

www.jutalaw.co.za

4126-02-17 CandidateAttorneyArticleDeRebusAd REV2018.indd 1 2018/01/10 3:13 PM DE REBUS – MARCH 2018 - 18 - BOOKS FOR LAWYERS Social Media in the Workplace

By Rosalind Davey and Lenja Dahms-Jansen Durban: LexisNexis (2017) 1st edition Price R 399 (incl VAT) 342 pages (soft cover)

exisNexis has recently pub- joyed the case studies on the right to effect on the good name and reputation lished Social Media in the freedom of expression in other jurisdic- of the employer, the extent to which the Workplace. This was a book tions, such as Australia, Canada, New conduct is incompatible with the cor- that I was particularly ex- Zealand, the United Kingdom and the porate culture of the employer and the cited to review as it is highly United States. One section of the book effect on the efficiency, profitability or relevant in our current age that I thought could have been expanded continuity of the employer. Lof technology where employees are fre- on was the section on the POPI Act. I Finally, the book provides some practi- quently posting information on social would have liked the book to go into a cal advice on what employers can do to media platforms that relates to or has an little more detail on the circumstances protect the workplace from social media impact on their employers. This book did under which uploading photographs and fallout, such as – not disappoint and is a lot more compre- special personal information onto social • having a social media policy; hensive than I initially anticipated. media platforms would be permissible • providing training to employees; The first part of the book deals with under this legislation, once in effect. • having a social media strategy and cri- the balancing of the rights to dignity, Part B of the book focuses on consid- sis management plan; equality, privacy and freedom of ex- erations for businesses and particularly • communicating to employees the pa- pression. It goes into detail in relation explores the law of defamation and its rameters around business use and per- to each of these rights and explains interplay with freedom of expression. sonal use of social media; how these rights have been interpreted Again, the book engages with how this • implementing an escalation procedure; through South African cases, as well has played out in other jurisdictions. and as cases in other jurisdictions. What is What is very relevant for employers is • taking steps to manage enforcement of clear is that social media increases the the section on vicarious liability, which the social media policy. risk of the rights to dignity and privacy sets out the circumstances under which being infringed and this book outlines an employer may be liable for content the remedies for such infringements. It posted by its employees. It also looks at Monique Jefferson is an attorney at Bowmans in Johannesburg. also deals with the interplay of social the duties of directors and employees q media with legislation such as the Pro- when using social media, which duties motion of Equality and Prevention of should be clearly communicated to em- Unfair Discrimination Act 4 of 2000, the ployees. Employment Equity Act 55 of 1998, the The section on off-duty misconduct is For further enquiries Protection from Harassment Act 17 of particularly relevant as employees fre- regarding the book 2011, the Regulation of Interception of quently upload information onto social Communications and Provision of Com- media platforms in their personal capac- review on this page, munication-Related Information Act 70 ity. The book sets out the factors to be please contact of 2002, the Protection of Personal Infor- considered when determining whether mation Act 4 of 2013 (POPI Act) and the an employee should be disciplined for the publisher Electronic Communications and Trans- misconduct on social media, such as the of the book. actions Act 25 of 2002. employee’s position and whether the For me personally, I particularly en- employee identified their employer, the

DE REBUS – MARCH 2018 - 19 - PRACTICE MANAGEMENT – LEGAL PRACTICE

By Thomas Harban Is your firm the type of entity it purports to be?

ne of the decisions a legal Case study one concerned brought an application to join practitioner will make – after the AIIF as a third party to the claim Recently, an application for indemnity deciding to open a practice against him. The AIIF opposed the appli- was notified to the AIIF by an entity pur- – is what form the practice cation on various grounds, including the porting to be a partnership made up of will take. They may decide to fact that the entity did not fall within the limited liability companies of which the Opractice as a sole practitioner, in a part- definition of an insured. The High Court respective directors were legal practi- nership or as part of an incorporated dismissed the application brought by the tioners. The AIIF refused to indemnify practice. The decision may be driven by legal practitioner. That legal practitioner the entity, inter alia, on the grounds that commercial and/or other considerations will now have to be personally liable for it did not fall within the definition of a and they may change from one type of the claims brought against him. legal practice in terms of the Master Pol- entity to another in the life cycle of the The various scenarios highlighted icy (clause 5) as it was neither: practice. The considerations may even above bring us to two considerations ‘a) a sole Practitioner; arise when joining a firm. that the AIIF wishes to address, being – b) a partnership of Practitioners; The applicable legal principles and • whether or not the form of practice c) an incorporated Legal Practice.’ considerations for various types of en- elected is a recognised form of practice; The AIIF Master Policy defines a ‘legal tities may, on the surface, appear trite and practice’ as ‘the person or entity listed to many legal practitioners but an ex- • the status of the persons in the prac- in clause 5’, that practices as any one of amination of some of the underlying tice – are those held out as partners/di- the three forms listed above. A ‘practi- circumstances in professional indemnity rectors in fact holding such office? tioner’ is defined as ‘any attorney, notary (PI) claims notified to the Attorneys In- These considerations have important or conveyancer as defined in the [Attor- surance Indemnity Fund NPC (the AIIF) implications for the legal practitioners neys] Act’. In the matter referred to in show that this may not necessarily be concerned. It is important that some case study one, the entity thus did not the case across the profession. A sim- of the relevant statutory provisions are fall within any of the categories of prac- highlighted. ple examination of the letterheads of tices referred to in clause 5 of the Master Section 23 of the Attorneys Act 53 of some firms show that the entities may Policy. The matter was referred to a sen- 1979 prescribes the circumstances un- not properly be describing themselves ior legal practitioner for determination der which a juristic person may conduct as required by law. There are some firms (in terms of clause 40 of the Master Pol- a practice. Rules 2.20 to 2.23 of the Rules that use the suffix ‘Inc’ in their names icy) and the AIIF’s position was upheld. for the Attorneys’ Profession set out the when, in fact, they are not a practising The result is that the legal practitioners provisions applying to practices con- juristic entity. In other instances there in case study one do not enjoy cover un- ducted as professional companies. Sec- have been practitioners who conduct der the AIIF policy for any claims that tion 34 of the Legal Practice Act 28 of their practices through both a juristic may arise during the period that their 2014 (the LPA) deals with the forms of entity and a partnership from the same practice(s) were conducted through the legal practice in future and the relevant premises. In such cases, for purposes of unrecognised and uninsured entity and provisions read as follows: the AIIF policy, this will be regarded as a are thus exposed to potential personal ‘(5) Attorneys may only practise – single entity entitled to one annual limit liability in the event that they do not (a) for their own account; of indemnity (annual amount of cover) have other appropriate insurance cover (b) as part of a commercial juristic en- rather than two entities. An important in place. tity referred to in subsection (7) and as question to consider is if a client, walk- such, may only make over to, share or ing into such a firm, is asked whether Case study two divide any portion of their professional they would like to instruct the incorpo- fee whether by way of partnership, com- rated entity or the partnership, what the In another matter, an application for in- mission, allowance, or otherwise with an response would be. The client’s response demnity was received from a legal prac- attorney; would most probably be that their inten- titioner who, simultaneously, utilised a (c) as part of a law clinic established in tion was to instruct a legal practitioner number of different variations of names terms of subsection (8); or specialist in a particular field of law for his practice and made reference to (d) as part of Legal Aid South Africa; or and that no consideration was given to several entities (including a proprietary (e) as an attorney in the full-time employ- which hat (namely, incorporated practice limited company) in the letterheads and ment of the State as a state attorney or or partnership) the legal practitioner was other documents used in his practice. the South African Human Rights Com- wearing. This application for indemnity was re- mission.’ Two recent matters referred to the jected on a number of grounds including Section 34(7) of the LPA reads as fol- AIIF indicate some of the complexities, that it did not fall within the definition lows: which can arise when legal practitioners of an insured in terms of the policy, as ‘(7) A commercial juristic entity may be conduct their practices through vehicles a proprietary limited company does not established to conduct a legal practice other than those normally used and rec- fall within the definition of an insured in provided that, in terms of its founding ognised. the Master Policy. The legal practitioner documents –

DE REBUS – MARCH 2017 - 20 - (a) its shareholding, partnership or mem- The second aspect of this article con- director or alternate director, by what- bership as the case may be, is comprised cerns the delineation/titles of persons in ever name designated’. It must also be exclusively of attorneys; firms. The AIIF Master Policy defines a remembered that s 77 of the Companies (b) provision is made for legal services ‘principal’ as a ‘sole practitioner, partner Act prescribes liability for directors and to be rendered only by or under the su- or director of a legal practice or any per- prescribed officers in certain circum- pervision of admitted and enrolled attor- son who is publicly held out to be a part- stances – this must be read against the neys; and ner or director of a legal practice’ (clause provisions of s 34(7)(c) of the LPA when (c) all present and past shareholders, XXIII). The limit of indemnity and de- that piece of legislation comes into ef- partners or members, as the case may be, ductible of the practice are determined fect. In the event that a practice has di- are liable jointly and severally together by the number of partners/directors in rectors’ and officers’ liability insurance with the commercial juristic entity for – the firm. Holding out to the public that cover in place, inaccurate information in (i) the debts and liabilities of the com- the firm has higher number of partners/ respect of the directors and officers of mercial juristic entity as are or were con- directors than it in fact has, will lead to the entity may jeopardise the cover un- tracted during their period of office; and a higher deductible being applied in re- der that policy. (ii) in respect of any theft committed spect of claims notified by the firm. In Practitioners must thus pay special during their period of office.’ case study two referred to above, the attention to the risks associated with Practitioners must thus ensure that plaintiff’s attorney was listed as a direc- the manner in which they describe the they conduct their practices through one tor on the defendant firm’s letterhead. entity in which they practice and also of of the recognised forms. This is another reason that the AIIF did the titles by which they hold themselves Section 8(1) of the Companies Act 71 not indemnify the claim. A partner/di- and other person in the firm out to the of 2008 (the Companies Act) prescribes rector of a firm is obliged to apply for a public. that there are two types of companies Fidelity Fund Certificate. that may be formed and incorporated In some cases, there appears to be a • To view a copy of the AIIF Master Policy under the Companies Act, namely profit misunderstanding of the concept of ‘di- visit www.aiif.co.za. and non-profit companies. For present rector’ as commonly used in practice as purposes the most important provisions against that used in the Companies Act. are set out in s 8(2)(c) of the Companies As a director of a personal liability com- Act to the effect that a company is a: pany, regard must be had to the provi- ‘(c) a personal liability company if – sions of the Companies Act. Section 1 of (i) it meets the criteria for a private com- the Companies Act defines a ‘director’ as Thomas Harban BA LLB (Wits) is the pany; and a ‘member of the board of a company, General Manager of the Attorneys In- (ii) its Memorandum of Incorporation contemplated in s 66, or an alternative surance Indemnity Fund NPC in Cen- states that it is a personal liability com- director of a company and includes turion. q pany.’ any person occupying the position of a

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DE REBUS – MARCH 2017 - 21 - PRACTICE MANAGEMENT – LEGAL PRACTITIONERS COACHING CORNER

By Emmie Do you have a legal de Kock practitioner personality?

ave you heard the joke of borne in mind that a person’s personal- ing’ person or a ‘feeling’ person, may the legal practitioner who ity refers to their preference. A person- influence how you make decisions. For visits his cardiologist for ality type is not an ability, nor is it an instance, in the event that a candidate his annual checkup? Waiting excuse for certain behaviour. legal practitioner is accused of making anxiously for his results, the According to various sources, there unauthorised use of the firm’s vehicle, Hcardiologist chuckles and says ‘I cannot are numerous personality theories and a strong ‘thinking’ person may regard it find your heart, as you are an attorney.’ over hundreds of recognised personality as grounds for dismissal, while a strong Or the one, when a legal practitioner’s types. One of the most popular personal- ‘feeling’ person may regard harsh dis- wife said ‘I love you’, and he cross-exam- ity assessment tools used is the Myers- ciplinary steps as too severe and will ined her? Briggs Type Indicator (MBTI). The MBTI rather try assess why the candidate le- Legal practitioners – of course – have was created by a mother and daughter, gal practitioner did it. Considering this a very good sense of humour, but there Katharine Cook Briggs and Isabel Briggs extreme example, one can imagine why may be a point where some may feel Myers, who based it on the personality conflict can arise between legal practi- that legal practitioner jokes go too far studies of Carl Gustav Jung, who was a tioner partners having to make decisions in stereotyping the profession. Every le- famous Swiss psychiatrist and psycho- together. gal practitioner is unique and different, analyst in the early 1900s. however, if so many jokes about legal The MBTI provides for 16 types of per- Perceiving (P)/Judging (J) practitioners exist, do legal practition- sonality types based on eight concepts, Persons with a preference for ‘judging’ ers share similar traits? Is there in fact measured on scales, expressed in per- usually likes structure, organising and something like a ‘legal practitioner per- centages, contrasting each other. These preparing for deadlines in advance. Per- sonality’? eight concepts are each represented by sons with a preference for ‘perceiving’, Legal practitioners are not the only a specific letter as briefly referred to be- generally do not prefer to work very sys- professionals who are stereotyped, the low. tematic, operate well in organised chaos list also includes, accountants, engineers (with messy tables), and like rushing to and ‘techies’. Extrovert (E)/Introvert (I) make deadlines at the last minute. When one then considers how legal There can easily be a misperception that practitioners are sometimes negatively an extrovert is always someone outgo- What is your MBTI type? stereotyped, the following traits often ing, charismatic and charming. While come up: Greed, dishonesty, confronta- the true indicator to determine extrover- Take the test tional or workaholics. Sometimes there sion or introversion is actually whether a Following the above, a person’s MBTI may even be the incorrect perception person acquires energy from being with type is identified by a combination of that some of these traits are required to other people, or not. This is not to say four letters representing the most ap- succeed in the legal profession. that extroverts do not also need time on plicable contrasting concepts above. For Considering the nature of the job, the their own. This also does not mean that instance, ENFJ or INTP. competitiveness, and often the serious- introverts do not enjoy spending time There are many free and helpful online ness of matters that legal practitioners with other people. It is just what you resources available, if you would like to have to deal with, legal practitioners lean towards the most as preference. assess your MBTI type. In this regard, generally do not like showing any vulner- you could consider doing the online test ability. It is likely that legal practitioners Sensing (S)/Intuitive (N) at www.my-personality-test.com. behave this way, because they are ap- Very simply put, these concepts refer to To read more about the 16 dif- pointed and trained to represent clients the workstyle in which a person deals ferent personality types provided fearlessly and to intimidate their opposi- with information. A person who leans for by the MBTI, you could also visit tion. To some extent, it could therefore, more towards ‘sensing’ usually likes a www.16personalities.com or www.my- be considered part of a competent legal lot of facts and details and clear instruc- ersbriggs.org. practitioner’s job to act a certain way, tions. A person who leans more towards Knowing your MBTI status could by always keeping it together, being in ‘intuitive’ usually likes to focus on the give you insights in your personality’s control and believing they are right. List- ‘bigger picture’ or ‘bottom line’. This strengths and weaknesses and your pre- ing these traits, one can think of, for in- is just an indication of most preferred ferred work styles and environment. stance, Harvey Spector, the main charac- workstyles of a person, and it is not to It is further a general view that, unless ter of the popular television series Suits. say that the ‘intuitive’ person cannot a person experienced severe psychologi- However, no person’s behaviour, deal with details, or the ‘sensing’ person cal or emotional trauma, their person- thinking or belief system is solely de- cannot see the big picture, as personality ality type will not change and stay the pendent on their personality type. Other has nothing to do with ability. same throughout life. Generally, a per- factors that play a role, may include cul- son cannot merely decide to change their tural and religious upbringing, cognitive Feeling (F)/Thinking (T) personality type. intelligence, emotional intelligence and Legal practitioners have to make deci- According to Benjamin Snyder (‘Here’s personal values. It should further be sions all day. Whether you are a ‘think- the best job for you based on your per-

DE REBUS – MARCH 2017 - 22 - sonality type’ (www.cnbc.com, accessed the MBTI tool. The MBTI further is a test, ers who feel stuck or pressured in their 5-2-2018)) the best careers for, for in- in which the test taker must validate re- careers. The purpose of legal practition- stance, an ESTJ type is a chef, for ISTJ sults. er coaching is to assist legal practition- is a system administrator, for ENTJ is a ers in improving their competence and physician, and for ISFJ is a kindergarten What if you do not have a maximising their natural personal and teacher. ‘legal practitioner professional potential. According to an online article by Jen- nifer Alvey ‘The Lawyer Personality’ personality’? Conclusion (https://leavinglaw.wordpress.com, ac- Remember that no personality type is Have you ever, being a shoe size seven, cessed 5-2-2018), most lawyers’ MBTI inherently better than another personal- try to fit in a shoe sized six? You may type is ISTJ. In the article ‘More on the ity type, but that the MBTI may assist ex- eventually succeed in getting your feet Lawyer Personality’ (https://leavinglaw. plaining why certain careers, jobs or po- into the shoes, but it may take some wordpress.com, accessed 5-2-2018), sitions may be more suitable, or a better stress, pain and effort. However, it is not Alvery refers to a study by Dr Larry Rich- natural fit, for some personality types, the most comfortable experience. ard who lists the following as the top six than for others. The MBTI may also be Are you experiencing unnecessary MBTI types tested for legal practitioners, a helpful tool to help explain conflict strain in your career as a legal practition- namely: between contrasting personalities in the er? Are you a happy legal practitioner? • ISTJ (17,8%); workplace. Similarly, personalities with Are you in the best career or position for • ESTJ (10,3%); some contrasting traits, may also assist your personality type? • INTJ (13,1%); each other and work very well together Consider doing a free MBTI online test • ENTP (9,7%); to achieve more. and learn more about yourself and per- • INTP (9,4%); and As your personality type is not a re- haps also acquire a better understanding • ENTJ (9,0%). flection of your skills or abilities, and for some of your colleagues. Please note that this article is not merely an indication of your preferenc- meant as professional career advice and es, any person can gain experience, learn Emmie de Kock BLC LLB (cum laude) it is best to consult with a qualified in- a new skill or behaviour to cope and ex- (UP) is a coach and attorney at Emmie dustrial psychologist or certified MBTI cel in any situation. de Kock Coaching and Consulting in professional for professional advice on Legal practitioner coaching is some- Centurion. the full interpretation and application of thing which could assist legal practition- q

DE REBUS – MARCH 2017 - 23 - PRACTICE NOTE – PENSION FUND LAW

By Muhammed Trustee duties in relation to Ahmed Mayat member investor choice

his article aims to address portance in determining trustee duties. vidual member. Delegation is an estab- the issue of trustee duties Two arguments may be advanced on lished principle and one that the courts in the case of member inves- whether or not the member exercising have dealt with on numerous occasions tor choice. Focus is placed on the choice exercises primary or subor- in the past. the direct impact of member dinate power by means of delegation. The adjudicator in Twerefoo v Liberty Tinvestor choice on trustee duties alone The former argument would potentially Life Association of SA Ltd and Others – all other general fiduciary duties re- divest the trustees of much responsibil- [2000] 12 BPLR 1437 (PFA) at para 53 dis- main relevant and applicable. A seminal ity but appears excessively liberal and cussed trustee duties where delegated: question in this regard, is whether or inconsistent with the purports of much ‘[Trustees] retain the residual duties not trustees may relinquish their du- of pension fund regulation. The more as regards the investment of the fund’s ties of management, and if so, to what prudent argument – and the desired ap- monies as one of the key operations of extent (see R Hunter ‘Duties of trustees proach where uncertainty exists – finds a fund, which the trustees must direct, in regard to member investment choice’ for the latter delegated authority. To control and oversee. Part of their duty of (1999) September Pensions World). appreciate the ramifications of this we diligence, care and good faith involves must elaborate further on these two con- a consideration of whether the person Basic overview member structions. to whom the power of investment is del- investor choice egated is a suitable person. Furthermore Investor as an exerciser of it must involve the duty to monitor the Investor choice finds the locus of its primary power performance of the delegee’ (my italics). genesis in the desire of many pension Two duties become immediately ap- Proponents of such argument may point fund members to exercise some degree parent from the above extract: A duty to to the Act’s lack of express preclusion in of autonomy or choice in the investment ascertain the suitability of the delegee this regard. They reason that the absence process. The traditional investor-trustee prior to delegation and a duty to moni- of provision permits the conference paradigm places complete investment tor performance. of power under a member investment discretion with the trustee. This ap- Although it is unclear as to what moni- choice arrangement to be reasonably proach, while seemingly sound, proves toring entails in the context of member construed as primary power. This in turn restrictive in that it cannot adequately investment choice, this duty to moni- should allow for increased autonomy accommodate the diverse needs of its tor performance should, in practice, not and a significant reduction in the strin- different members (individuals of di- prove as onerous as it seems. It may gency of applicable trustee duties. Given verse age, risk profiles, etcetera). Mem- prove prudent for trustees to limit the the restrictive ambit of operation – in- ber investment choice arrangements at- available investment choices to a reason- dividual’s exercising control over what tempt to remedy this inflexibility – to an able amount, to allow for the frequent is effectively their own assets – such extent – by offering members a spread of vetting of fund performances. It appears construction could reasonable remain portfolio options in which funds can be logical to infer that initial and periodic unencumbered by counterarguments invested. Individual members may opt to assessments of the offered fund choices of trustee abdication. Regardless, such allocate a portion of their contributions must be undertaken by the trustees – as arguments place significant reliance on toward investing in these portfolios (see they would, were they in control of the distant abstraction and at times appear C Robinson, ‘Implementation of individ- investment – and that such precaution laboured and artificial. ual investment choice in a public service should reasonably satisfy this monitor- As noted above, this view appears ex- defined contribution pension fund’ (un- ing duty. cessively liberal and at conflict with the published thesis, University of the Wit- Further, it is evident that only se- basic purpose of trusteeship and the watersrand, 2001) at 40-45). lected ‘suitable’ members may exercise onerous nature of trustee duties. It ap- an elective choice, although the evalu- pears unlikely that this construction is Trustee duties ation criteria may be less onerous than desired and prudence dictates that trus- Trustee duties, in respect of investment normal given the circumstance, wherein tees would do well to avoid placing reli- choice, have not been clearly elucidated a controlled investment environment ance on it. by statute or a court of law (at this point) exists with limited investment options and, as such, inference is necessary to The investor as an exercis- available to the delegee. In this regard, arrive at a speculative construction of trustees must assess a member by a uni- what precisely they may entail. Prior to er of subordinate power form reasonable criteria prior to delegat- delving into a more abstract discussion, Section 7C of the Act provides: ing the power of election. Failure to do it must be noted that individual appli- ‘The object of a board shall be to di- so may render a trustee as having fallen cable regulatory provisions (such as the rect, control and oversee the operations short of the requisite standard of care. Pension Funds Act 24 of 1956 (the Act) of a fund in accordance with the applica- It must also be noted that the duty reg 28’s applicability to funds, which ble laws and the rules of the fund.’ to ensure ‘that adequate and appropri- incorporate member investor choice) Proponents of this view argue that – ate information is communicated to the stand independently and are not impact- given the board of trustees’ primary members and beneficiaries of the fund ed by the nature of the ‘member-trustee’ duty is to direct, control and oversee informing them of their rights, benefits relationship. investments – all other exercises of con- and duties’ is retained (as provided in The nature of the ‘member-trustee’ trol amount effectively to delegation, s 7D of the Act). Louw advances the ar- relationship in the member investment namely, in this scenario, the trustees gument that trustees are responsible for choice paradigm is of fundamental im- delegate investment power to the indi- ensuring that the individual investors ex-

DE REBUS – MARCH 2018 - 24 - PRACTICE NOTE – LEGAL PRACTICE ercising investment choice are properly required under ordinary delegation. well as a foreign approaches to the ques- trained (see J Louw ‘Member investment Only members who fit a specific criteria tion. Where trustees are uncertain in the choice not to be taken lightly’ (2006) De- may exercise delegated power – although exercise of their duties, given the lack of cember Pensions World). It is unclear as the delegee qualification criteria may be prescribed clarity, it would be most wise to what standard such envisaged train- slightly less onerous given the controlled to err on the side of caution rather than ing must meet or whether this potential choice of investment products – the trus- to be bold and risk liability. requirement may be precluded by a rea- tees must exercise a degree of oversight sonable member criteria applied before over the investment choices available allowing the member to exercise invest- and individual investors must be reason- ment choice. ably informed. Muhammed Ahmed Mayat LLB (Wits) Although incapable of precise articula- This approach seems consistent with a LLM (UJ) is a legal adviser in Johan- tion, it appears as if the duties that trus- number of proposals aimed at regulating nesburg. tees must fulfil are homogenous to those aspects of member investor choice, as q

By Jannie Conflicting evidence of Bester handwriting experts

xperts or so-called experts A forensic document examiner should other disputed or questioned document come in many guises, from also have a thorough understanding of issues. handwriting analysts, signature the concepts of identification and indi- When looking for a consultant forensic analysts, document analysts, vidualisation, which are two very diverse document examiner, an attorney should handwriting and signature ex- concepts in the understanding and appli- not just rely on an advertisement in print- Eperts, document experts, graphologists, cation process during the forensic exam- ed media or electronic media. The choice grapho-analysts, etcetera. ination of written and printed sources. of a forensic document examiner should When starting the search for an ex- It is common cause that a forensic be a well-informed and researched deci- pert, the choice is in the correct title of document examiner operates in two par- sion. Proper due diligence should be done the person who needs to be consulted, adigms, namely objective interpretation before the services of a forensic docu- namely a forensic document examiner. and subjective interpretation of techni- ment examiner is employed. The due dili- Forensic document examiners are ap- cal evidence. When dealing with scientif- gence should include – propriately trained persons most suit- ic matters, such as ink spectral analysis, • confirmation of proper training in the able to assist in disputed document mat- restoration of obscured writing, printed field of forensic document examination; ters. Their skill-set comprises of many matter identification, paper analysis, al- • personal interviews with previous cli- disciplines within the forensic document terations and additions, the interpreta- ents who made used of the particular examination field, which includes – tion of the technical evidence is glaringly forensic document examiner; • scientific examinations; objective and the results are clear to the • reading of law reports and judgments; • comparison and analyses of documents reasonable man. However, when dealing • checking of membership of recognised in order to establish authenticity or non- with the individualisation of signatures professional organisations; authenticity; and handwriting, the interpretation of • a Professional Code of Conduct; and • examination of alterations, additions, the technical evidence, at best, is sub- • a proven track record in the field of fo- deletions; jective in nature and is based on appro- rensic document examination. • individualisation of signatures and priate training, specialised knowledge, A forensic document examiner, and handwriting; experience, continuous mentorship and their specialised skill-set is an extension • identifying or eliminating of sources, own ongoing research augmented by of the professionalism of the attorney such as, typewriting, printed matter, membership of recognised professional and an invaluable source during prepa- stamped impressions, marks, restora- bodies and discussion forums. A fo- ration for judicial process and proceed- tion of obscured evidence or relevant rensic document examiner would most ings. document evidence of any kind; probably have completed approximately For previous articles see: • writing of reports; 900 hours of training on the aspects of • C Greenfield ‘Conflicting evidence of • professional conduct; handwriting and signature individualisa- handwriting experts’ 2005 (June) DR 28. • the presentation of expert testimony tion alone. • Letters ‘Conflicting evidence of hand- during judicial process; and A forensic document examiner is also writing experts’ 2010 (Sept) DR 5. • consultation to aid the users of the ex- guided by best practice examination aminer’s services in understanding the standards in the form of published in- examiner’s findings. ternational accepted best practice stand- Forensic document examiners should ards. have a thorough understanding of the It is within the signature and hand- concept of bias and how to minimise writing examination results, where the bias during the term of consultation. majority of the conflicts appear and this Jannie Bester MCSFS (UK) is a forensic Maintaining independence and objectiv- is where the choice of forensic document document examiner in Pretoria. ity are two critical personal traits of a examiner as consultant is critical to the forensic document examiner. matter of the client, not discounting any q

DE REBUS – MARCH 2018 - 25 - The genesis of the ‘Gupta clause’ within the financial regulatory framework of South Africa Picture source: Gallo Images/Getty

t is a trite principle of law in South Africa (SA) that banks are not legally com- pelled to give reasons for terminating relationships or closing customers’ ac- counts. This has been long established and settled in, both international and By domestic case law. However, as of late there have been various policy develop- Nkateko ments within SA’s financial regulatory framework, which might necessitate a Nkhwashu rethink thereof or pose a challenge to this principle. IBefore we ‘go drilling for the meaning of words’ and start ‘connecting the dots’, it is imperative to briefly look at some of the key pieces of legislation, which are going to form the basis of the discussion. First is the Financial Sector Regulation

DE REBUS – MARCH 2018 - 26 - FEATURE – COMMERCIAL LAW

Act 9 of 2017 (FSR Act), which seeks to So begins the journey to folding there were two important Bills establish a dual system of financial regu- before Parliament, which needed urgent lation in SA comprising of the Prudential the ‘Gupta clause’ promulgation. These were the Financial Authority (PA) and the Financial Sector Traditionally, and owing to the bank/ Sector Regulation Bill (FSR Bill) and Fi- Conduct Authority (FSCA). Subsequent customer relationship and the attendant nancial Intelligence Centre Amendment to the FSR Act and in order to give effect contractual obligations between the par- Bill (FICA Bill). The FSR Bill had been to the mandate of the latter, the central ties thereto, banks are not obliged to before Parliament for some time, while principle of which is the treating cus- give reasons for closing a customer’s the FICA Bill had to be urgently promul- tomers fairly initiative, a draft Conduct account, even the motives thereof are gated in order to ensure that SA fulfills of Financial Institutions Bill (CoFI Bill) is irrelevant (Bredenkamp and Others v its international obligations and thus currently before parliament and has not Standard Bank of South Africa Ltd 2010 complies with international standards yet been finalised. (4) SA 468 (SCA)). A bank only has to give set by, inter alia, the Financial Action Secondly, the Financial Intelligence reasonable notice to the customer as per Task Force (FATF). SA had been under a Centre Amendment Act 1 of 2017 (FIC the agreed terms and then terminate the targeted follow-up process by the FATF Amendment Act) seeks to formally intro- relationship. This is a settled principle in ever since deficiencies within its finan- duce a risk-based approach to customer law and aligned with international best cial regulatory framework were noted identification and verification in SA. practice. during the 2009 mutual evaluation ex- It further introduces certain concepts, In 2016, however, this principle was ercise. SA was under pressure to show which have been subject of rigorous de- challenged from various fronts, includ- some progress to the FATF. bates during parliamentary processes ing by those in the political sphere. This To bring matters into context, when leading up to its promulgation. One such followed the release of the then Public some of the banks were closing the Gup- concept is that of Prominent Influential Protector’s report titled the ‘State of ta family’s accounts, they raised the fact Persons (PIPs), which is SA’s extended Capture’. This report implicated the that due to the adverse media received version of the international Politically Gupta family in various corrupt dealings by the Gupta family after the allegations Exposed Persons (PEP) concept. Both together with President Jacob Zuma’s of corruption in the State of Capture concepts include ‘family members’ and family. This led to the four big banks report, the family was now deemed to ‘close associates’ (which include busi- in SA communicating their intention to be high risk and put in the category of ness partners). terminate relationships with the Gupta PEPs (and close associates). By then the Thirdly is the Code of Banking Prac- family and their affiliated companies. PEP/PIP concept was not provided for in tice (the Code), which is a voluntary code The Gupta family sought reasons from FICA itself. It was, however, provided for that ‘sets out the minimum standards the banks and assistance from the Min- in some of the FICA’s Guidance Notes. for service and conduct you can expect ister of Finance. For some reason, they Some banks went as far as to raise the from your bank with regard to the ser- never sought redress from the Office of fact that it was included in the FICA Bill, vices and products it offers, and how the Ombudsman for Banking Services which was then about to come into ef- [the bank] would like to relate to you’. (see Minister of Finance v Oakbay Invest- fect. This is how the whole PEP/PIP con- It also provides for a customer’s entitle- ments (Pty) Ltd and Others; Oakbay In- cept and the FICA Bill itself became po- ment and responsibility, as well as issues vestments (Pty) Ltd and Others v Direc- liticised and eventually, was the center around ‘closing an account’, namely, not tor of the Financial Intelligence Centre of attention in various committee delib- to close a customer’s account without a [2017] 4 All SA 150 (GP)). Some banks erations. I submit that many parliamen- reasonable prior notice to the customer. did provide reasons to the Gupta fam- tarians even lost sight of how the whole It further provides for exceptional cir- ily, ranging from potential reputational (South African PIP) concept came about cumstances under which banks may damage to the need to ensure compli- in the first place. close a customer’s account without prior ance with SA’s anti-corruption and anti- Due to all the politicking around the notice. Thus – money laundering legislation, namely, closure of the Gupta family’s accounts • if compelled to do so by law (or inter- Prevention of Organised Crime Act 121 and the attention now given to the PEP/ national best practice); of 1998, the Financial Intelligence Cen- PIP concept of the FICA Bill, the Bill’s pro- • the account is not used for a significant tre Act 38 of 2001 (FICA) and Prevention cess was stalled in Parliament. Other role period of time; or and Combating of Corrupt Activities Act players emerged from nowhere and criti- • if there is a reason to believe that an ac- 12 of 2004. cised the Bill. The banking industry was count is being used for illegal purposes. Owing to these developments, the against the PEP/PIP concept, as well, and Mostly, the provisions of the Code re- Gupta family intensified their engage- argued that it went further than interna- semble the ‘contractual’ obligations of ments with the then Minister of Finance, tional standards as it also covered those both the bank and its customer, which , so that he could inter- in the private sector. For these and other emanates from the traditional bank/cus- vene and assist in resolving this situa- reasons, the FICA Bill, when deliberated tomer relationship. The relationship is tion. Commendably so, Mr Gordhan re- on in Parliament, was always tied to the a contract between the two parties and fused. He also refused to form part of issue of account closures. Due to the is only governed by the agreed terms the established ‘inter-ministerial com- number of times this issue was raised at (and conditions) inter partes. Thus, in- mittee’. The Gupta family persisted in the Standing Committee on Finance de- terference from outside third parties pursuing the minister to intervene. This liberations, its chairperson dubbed it the (including, eg, the executive branch of situation led to the minister approach- ‘Gupta clause’. This further led to some government) on this relationship is very ing the court for a declaratory order to parliamentarians and policy makers sug- restricted. This is one of the key reasons the effect that he had no legal obligation gesting that perhaps there should be a why I submit that the ‘inter-ministerial to interfere in the relationship between provision in law, either in the FSR Bill, committee’, established in 2016 to look a bank and its customer (the Minister of FICA Bill or CoFI Bill, compelling banks – at issues of account closures (of a certain Finance v Oakbay Investments case). when deciding to open or close accounts family) was ill-advised. This ‘inter-minis- – to provide reasons for such decisions. terial committee’ was established at the Was a compromise made, Needless to say, all these develop- direction of the Office of the Presidency if so, what are the ments put pressure on National Treas- and ironically chaired by a minister, who implications? ury as the policy maker in charge of both had nothing to do with issues of finance Bills. National Treasury then embarked or banks. While the above developments were un- on a campaign to educate various stake-

DE REBUS – MARCH 2018 - 27 - FEATURE – COMMERCIAL LAW holders on the intentions of the FICA cept of ‘treating customers fairly’, which on the wealth of case law already estab- Bill. This was largely aimed at ensuring is central to the entire Market Conduct lished and settled on the same issue. Fi- that there was a common understanding Policy Framework was also considered. nally, should this provision be brought on the intentions of the Bill and that it The understanding within Standing before court it is going to be interesting urgently be signed into law. SA had to Committee on Finance was that if such to see how it will be interpreted and pro- report to the FATF on the next plenary a clause was to ever materialise it had to nounced on. meeting, which was scheduled for Febru- be included within the CoFI Bill, as it in- ary 2017. The fact that SA was given a volved conduct by financial institutions Conclusion grace period in 2016 after FATF had re- as against customers. This has, however, In short, banks are never legally obliged solved to send a high-level delegation to changed as seemingly the clause on ac- to provide reasons for terminating busi- SA made matters worse. To add salt to count closures and the need to provide ness relationships. However, due to an already open wound, the president, reasons have been included in the FSR political dynamics and other policy de- in November 2016, decided to refer the Act. Furthermore, other factors came velopments within the financial regula- FICA Bill back to Parliament citing cer- into play, which eventually forced the tory framework of SA it seems as though tain potential unconstitutional grounds. president into signing the FICA Bill into this is about to change. I submit that it The genuineness of this was doubted. law. is doubtful whether the implications of This was a huge learning curve for policy Seemingly the clause is now captured s 106 have been really considered and makers as it showed the influence poli- under s 106 of the FSR Act, which re- thought through prior to including this tics had on policy development and im- quires the FSCA to make conduct stand- clause within the FSR Act. On the other plementation. ards for financial institutions, among hand, one might argue that given mass Allegedly, National Treasury started others to: closure of low risk accounts and the writing to the president trying to clarify ‘(3)(c) … need to foster government’s objective of what National Treasury perceived to be (iv) the disclosure of information to fi- financial inclusion this is a welcomed de- sensitive and contentious clauses, which nancial customers; and velopment. Others, however, may argue led to the FICA Bill being referred back (v) principles, guiding processes and that these challenges will be addressed to Parliament. Strategically, National procedures for the refusal, withdrawal under the new risk based framework of Treasury singled out the PEP/PIP provi- or closure of a financial product of a the FIC Amendment Act. Regardless of sions of the Bill, inter alia, and tried to financial service by a financial institu- which argument carries the light of day, explain and plead with the president tion in respect of one or more financial it is reiterated that the implications of concerning the actual intentions of customers, taking into consideration rel- this are huge. these. Furthermore, and taking into ac- evant international standards and prac- count the prevailing politically sensitive tices, and subject to the requirements of Gupta-charged environment of that time, any other financial sector law or Finan- National Treasury undertook to explore cial Intelligence Centre Act, including – (other) regulatory measures under the (aa) disclosures to be made to the fi- Twin Peaks regulatory regime to ensure nancial customers; and Nkateko Nkhwashu LLB (University that financial institutions always treated (bb) reporting of any refusal, with- of Venda) LLM (UJ) Cert in Legislative existing and potential clients fairly when drawal or closure to a financial sector Drafting (UP) Cert in Compliance making decisions to open or close ac- regulator.’ Management (UJ) Cert in Money counts, and should consider providing A proper interpretation of s 106 im- Laundering Controls (UJ) Cert in Pol- reasons for such decisions. plies that banks can now legally be icy Development (Pro Active College) Apparently, National Treasury used compelled to provide customers with is an advocate at Empowerment the above undertaking as part motiva- reasons for withdrawal of services or ac- Dynamics Consulting in Centurion. tion to have the FICA Bill signed into law counts closures. Furthermore, the Code, urgently. Such motivation also took is- as well as other literature on the very Mr Nkhwashu writes in his personal sues of financial exclusion as a result of same subject needs to be revisited and capacity. account closures into account. The con- revised. This also has huge implications q

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DE REBUS – MARCH 2018 - 28 -

The impasse of reserved costs – the winning party does not take it all

By Beverly Shiells Picture source: Gallo Images/Getty

here seems to be a miscon- cifically addresses the liability for the ception among colleagues reserved costs. Reserved costs, as such, that the winning party is ul- do not follow the result and the winner timately entitled to all costs of the action and/or application is not incurred in an action or automatically entitled to the reserved Tapplication and that such costs also costs without either an order or include any reserved costs orders agreement to that effect. Reserved made. The Taxing Master has, how- costs is a specific costs order that ever, no authority to tax a reserved delays the adjudication of the liabil- costs order and any reserved costs ity of costs to a later stage. order must be unreserved prior to tax- The issue of reserved costs was ad- ation. Failure and/or neglect to address dressed in the matter of Commissioner any reserved costs orders prior to the for Inland Revenue v Niemand 1965 (4) finalisation of a matter can ultimately magistrate’s court is that if you bring SA 780 (C) where Watermeyer J held cost your client a vast amount in legal an interlocutory application or if a mat- that the order as to costs was not a final fees. The client will be burdened with ter is postponed and costs are awarded order and not appealable. Judge Albert reserved costs, which despite the costly as costs in the cause, the costs will fol- Kruger and Wilma Mostert in Taxation of financial implication also results in a di- low the result of the action namely, the Costs in the Higher and Lower Courts: luted victory and an unsatisfied client. winning party takes it all. If, however, A Practical guide (Durban: LexisNexis Similarly an agreement by the opponent the court reserves the issue of costs to 2010) at 10 states that: to pay the costs of the action also does be argued and adjudicated on at a later ‘It is therefore the duty of the attorney not automatically include reserved costs stage, it cannot be taxed until the court or counsel to bring the reserved costs unless expressly stated. has made a ruling on who is ultimately under the court’s attention to make a liable for the reserved costs. The costs final decision either on trial or settle- Reserved costs explained can also be unreserved if there is an ment of the matter. If the attorney or The position in both the High Court and agreement between the parties that spe- advocate neglects to ask the court for an

DE REBUS – MARCH 2018 - 30 - FEATURE – LEGAL PRACTICE order or to obtain an agreement on the become attached to the main judgment not requested to include such fees in reserved costs, those costs cannot be re- and that it ‘remained separate from and the order. As far as Rule 42(1)(b) is con- covered from the other party on taxation independent of that judgment and did cerned the applicant has not established and their own client would be legally not necessarily follow the result of the a patent error or omission attributable to responsible to settle reserved costs in action between the parties.’ the court. … The application must there- respect whereof no further costs order fore be refused on these grounds alone.’ was made.’ Practical illustration and In Goldsworthy (born Marshall) v Wunsh J in Martin NO v Road Accident application for variation of Goldsworthy [2009] JOL 23468 (ECG) Fund 2000 (2) SA 1023 (W) referred to order in terms of r 42(1)(b) the divorce decree did not include the the matter of How v Earl Winterton (No 4) reserved costs of a previous postpone- (1904) 91 LT 763 where it was held that The claimant’s matter is postponed sine ment. The applicant brought an applica- a Taxing Master has no authority to deal die and the wasted costs (which would tion wherein she sought an order that with reserved costs and that the issue of include a portion of both the attorney costs be determined in her favour. The reserved costs must be referred back to and counsel’s preparation, costs of wit- respondent opposed same on the basis court to determine the liability of same. nesses for attending court, reservation that there was no patent error or omis- Only once the court has dealt with the re- and preparation fees for experts and sion attributable to the court and the served costs will the Taxing Master have counsel’s day fee) are reserved to be court is functus officio. It was held that: the necessary authority to tax same in argued at the next round. Both counsel ‘[I]t was common cause that the aspect accordance with the costs order. At 765 and the attorney neglect to raise the is- of reserved costs constituted a bona fide Kekewich J held that: sue of reserved costs and the action is omission on the part of all concerned. ‘I think that when costs are reserved it ultimately finalised with a costs order The reserved costs were overlooked by is necessarily implied, and the practice in the claimant’s favour. The costs of the legal representatives of the parties, of the court sanctions the implication, the postponement can easily be in the and consequently were not brought to that there is reserved the question of region of R 100 000 depending on the the attention of the trial judge. the incidence of those costs, quite apart seniority of the counsel and number of Rule 42 (1)(b) of the Uniform Rules of from the question whether they are to be experts involved. The reserved costs will Court provides that a court may mero paid by the plaintiff or the defendant. It now have to be paid by the client, despite motu or upon the application of any may turn out that they are to be paid by their victory in the matter. The attorney party affected, rescind or vary any order neither, and that the costs of both ought can approach their opponent to agree to or judgment in which there is ambigu- to come out of the estate, or be paid by pay the reserved costs, which they will ity, error or omission. The present court a third party. In the meantime the court unlikely agree to after the fact. Alterna- therefore had the power to deal with the has pronounced no opinion whatsoever, tively, one can bring an application to reserved costs and to make a determina- not only on the question whether the court to address the issue of reserved tion in respect thereof. That would not plaintiff should pay the defendant or the costs. There are, however, inherent constitute altering the original order.’ defendant should pay the plaintiff but risks associated with bringing an appli- as to how the costs should be borne at cation. In the unreported judgment of Conclusion all. It might in the end say that neither Cipla Medpro (Pty) Ltd v H Lundbeck A/S The course of action to be followed when party should have any costs, or it might and Another In re: H Lundbeck A/S and faced with a situation where reserved deal with them in one of the other ways Another v Cipla Medpro (Pty) Ltd (CCP) costs were not addressed is the follow- I have suggested; but it is quite impos- (unreported case no 89/4476, 24-5- ing: sible, I think, for the Taxing Master, deal- 2010) (Southwood J) in the Court for the • Negotiate an agreement with your op- ing with the costs of a defendant to an Commissioner of Patents the applicant ponent, which expressly states that they action, to look at costs which have been brought two applications in terms of will be liable for the reserved costs. reserved.’ r 42(1)(b) of the Uniform Rules of Court • Redirect the matter to court by bring- Wunsh J held in Martin that: in which it sought to vary the court or- ing an application in terms of r 42(1)(b) ‘Costs are usually reserved if there is ders in two urgent applications dismiss- of the Uniform Rules. a real possibility that information may ing the applications with costs, including It is as such imperative that reserved be put before the Court which eventually the costs consequent on the employment costs are dealt with promptly and prior disposes of the action or the application of two counsel. In each application the to the finalisation of the matter to avoid which may be relevant to the exercise of applicant sought an order that the costs unnecessary delays in recovering cli- a discretion in regard to them (cf Hillk- order, include the qualifying fees of the ent’s costs or ending up with a situation loof Builders (Pty) Ltd v Jacomelli 1972 expert witness. It is trite law that an or- where the client is ultimately responsible (4) SA 228 (D) at 233H), although, where der for costs must include the costs for to settle the reserved costs. The client is the issues affecting interlocutory costs your experts’ qualifying fees to be able furthermore saddled with the unneces- are clear, the Court then dealing with the to recover same on taxation. Rule 42(1) sary costs of bringing an application in matter should not choose an easy way (b) provides that the court may, on the terms of r 42(1)(b) and the legal practi- out to shift the task to another Court application of any party affected vary tioner is left embarrassed by their failure (Fleet Motors (Pty) Ltd v Epsom Motors an order or judgment in which there is and/or neglect to address the reserved (Pty) Ltd 1960 (3) SA 401 (D) at 404H- a patent error or omission. Southwood J costs at the appropriate forum. 405B; Trust Bank of Africa Ltd v Muller held that: NO and Another 1979 (2) SA 368 (D) at ‘In the present case the parties argued 318C-D). Costs are reserved because the question of costs and the courts there is no ready view about the liabil- made costs orders. There is no sugges- ity for them and they will not necessar- tion that these costs orders did not cor- ily follow the result of the case. They are rectly express the intention of the court separate from the costs of the action or or that the court did not consider what Beverly Shiells LLB (cum laude) (UP) application.’ was argued or omitted to order what was is an attorney at Tiaan Smuts Attor- In AA Mutual Insurance Association requested. It is clear from the facts that neys in Pretoria. Ltd v Gcanga 1980 (1) (SA) 858 (A) it was the court did not consider the qualifying q held that a reserved costs order does not fees of expert witnesses because it was

DE REBUS – MARCH 2018 - 31 - Picture source: Gallo Images/Getty source: Picture

By Martin van Staden

Navigating the digital divide: Internet access a human right?

ince the inception of the ‘#Da- ing 500MB of free data for the poor, stu- A liberty right versus an taMustFall’ movement in 2016, dents and jobseekers. the notion that Internet access Passion and emotion are crucial in- entitlement right is a human right that must be gredients in a democracy, antithetical Insofar as the liberty of the individual guaranteed by government has to the cold application of rules evident relates, Internet access is certainly a hu- become an attractive narrative in authoritarian dictatorships. However, man right. Sfor many commentators. it remains important to approach ideas During the Arab Spring of 2010 to Indeed, there has been much talk of a like Internet access being a human right 2012, the Egyptian government cut Inter- ‘digital divide’, meaning the inequality of with a degree of circumspection, espe- net access to the people to protect itself access to digital media between wealthi- cially if such narrative stands to cost the from being ousted. Turkey’s government er and poorer individuals. #DataMustFall beleaguered taxpayer more in taxes, and has taken similar measures to silence the has recently been joined by the official when it appears to be so readily accept- opposition and the press. In September opposition’s (the Democratic Alliance’s) ed, without question, that it should be a 2017, Togo also cut Internet access to #Data4All initiative, which is demand- human right. anti-government dissidents.

DE REBUS – MARCH 2018 - 32 - FEATURE – CONSTITUTIONAL LAW

In South Africa (SA), s 16(1)(a) of the sary for people to exercise their right to offline, must also be protected online, Constitution provides that everyone has dignity or freedom of expression. especially freedom of expression, and freedom of expression, including free- International treaty law, which has calls on governments to bridge digital dom of the press and other media, and become more prolific over the past two divides (UNHRC ‘The promotion, protec- s 16(1)(b) provides that everyone has the decades on this very topic, could tell a tion and enjoyment of human rights on right to receive and impart information different story. the Internet’ A/HRC/32/L.20 (27 June or ideas. This, read with s 25(1), which Section 39(1)(b) of the Constitution 2016) (www.article19.org, accessed 14- provides that everyone has the right to obliges South African courts to consider 2-2018)). own private property and not to be ar- international law in their interpretation A Declaration of Principles was also bitrarily deprived of it, certainly means of the Bill of Rights, meaning that inter- adopted by the World Summit on the that every South African may have an national treaty law might compel SA to Information Society in 2003 in consulta- Internet connection without fear of gov- give effect to a human right to Internet tion with the UN, national governments ernment interference. access. This does not mean that the Bill and other stakeholders in the informa- This, however, is not what most ad- of Rights itself may be substituted for tion and communication technology vocates of Internet access as a human what an international treaty provides. (ICT) industry. It contains various princi- right mean. To them, it is an entitlement Instead, if there is doubt or uncertainty ples relevant to the question of Internet right, meaning that Internet access must as to what a particular section in the Bill access as a human right. be provided (at taxpayers’ expense), not of Rights means, or how it should be ap- Principle 4 provides that communica- merely allowed. plied to a particular situation, the courts tion is ‘a basic human need’ and ‘central must venture an interpretation that ac- to the Information Society’. Everyone The Constitution cords with existing international law. should have the opportunity to par- Section 231(4) of the Constitution pro- ticipate in the Information Society. This The pertinent question is whether vides that international law becomes a principle accords perfectly with the Con- the Constitution provides for an part of South African law if Parliament stitution and the notion that the right entitlement right to Internet ac- enacts it into our law as legislation. That to Internet access means that people cess in the same way it does a rule of international law must, however, should not be hindered from accessing liberty right. be consistent with the Constitution and the Internet, rather than a right to have At the outset, it is impor- existing statutory law, otherwise Par- the Internet provided to them. tant to bear in mind the con- liament cannot enact it as legislation. Principle 23 provides that certain poli- stitutional principle enunci- This is evident from ss 1(c) and 2 of the cies should be developed, which ‘enables ated by Sir Kentridge AJ in S Constitution, which provides for the su- universal service obligations’ to ‘areas v Zuma and Others 1995 (2) SA premacy of the Constitution and the rule where traditional market conditions fail’. 642 (CC) ‘that the Constitution does of law. It goes on to name examples of govern- not mean whatever we might wish it to This principle is contentious consid- ment providing access points in post of- mean’. Referring to the late Privy Council ering the principle that domestic law fices, schools and libraries. Judge Lord Wilberforce’s ‘reminder that cannot overrule international law. In This principle, like the UNHRC’s call even a constitution is a legal instrument, practice, the courts and government will for governments to bridge digital divides, the language of which must be respect- rarely, if ever, find South African consti- does not find expression in the Constitu- ed’. Kentridge continues and states that tutional principles to be inapplicable due tion. Indeed, s 9(2) of the Constitution, the language used by the constitutional to some conflicting international rule. It which provides for substantive and not drafters must not be ‘ignored in favour must be assumed that the Constitution merely formal equality of persons, ech- of a general resort to “values”’, as then will reign supreme in every instance oes s 7 in that it provides that equality ‘the result is not interpretation but divi- when considering international law. ‘includes the full and equal enjoyment of nation’. Section 232 of the Constitution, fur- all rights and freedoms’. It must be as- Section 7 of the Constitution provides ther, provides that customary interna- sumed that these ‘rights and freedoms’ that government must ‘respect, protect, tional law is automatically part of South are those already found in the Bill of promote and fulfil the rights in the Bill African law unless it is inconsistent Rights. Thus, for example, whereas gov- of Rights’. The wording used here is par- with the Constitution or statutory law. ernment has a constitutional obligation ticularly important. Government must Customary international law consists of to ensure the educational divide between give effect to and promote only those principles generally accepted by the in- rich and poor is bridged, the same can- rights that are in the Bill of Rights – no ternational community as law, but which not be said for the digital divide. more, and no less. Government cannot are not necessarily found in treaties. Principle 39 of the Declaration pro- create new fundamental (human, con- There is, however, no discernible human vides that the rule of law, ‘accompa- stitutional) rights from scratch without right to Internet access to be found in nied by a supportive, transparent, amending the Constitution, whereas it customary international law. pro-competitive, technologically neu- may create statutory rights, such as our Section 233 provides that courts ‘must tral and predictable policy and regu- right to possess firearms under the Fire- prefer any reasonable interpretation’ of latory framework reflecting national arms Control Act 60 of 2000. South African legislation, which is con- realities, is essential for building a people- There is no explicit right to Internet sistent with international law, over an centred Information Society’. This princi- access in the Constitution. Section 32’s interpretation that is inconsistent with ple endorses a sound notion of the rule right to access to information does not international law. of law, that is, policy must be predict- equate to a right to Internet access as it able, transparent, and pro-competition. is explicit about its limitation. Everyone International law Government intervention to provide In- has the right to have access to informa- The #Data4All initiative claims that the ternet access must thus be supported by tion held by the state and access to in- United Nations (UN) considers Inter- these characteristics. formation held by any other person if it net access a human right. This refers The Department of Telecommunica- is required to enforce one’s rights. This to a non-binding resolution adopted on tions and Postal Services’ ICT policy, relates clearly to specific information 27 June 2016 by the UN Human Rights however, is not so supported. It is, and cannot be read to mean that the data Council (UNHRC) that, inter alia, af- firstly, assuredly anti-competitive by held by data service providers is neces- firms that the rights, which people have venturing to establish a new telecommu-

DE REBUS – MARCH 2018 - 33 - FEATURE – CONSTITUTIONAL LAW nications monopoly. Secondly, it seeks the fact that we only recently developed To conceive of all ‘good’ or ‘important’ to hog radio frequency spectrum des- a conception of human rights. things as human rights, as Dr Nigel Ash- perately needed by data providers. And, By this logic, I submit that Internet ac- ford astutely writes, ‘reduces the moral thirdly, the process of its adoption was cess cannot be a human right. force of the claim’ (N Ashford ‘Human anything but transparent, with bad faith The Internet is a relatively recent in- Rights: What they are and what they are public participation in the formulation vention, which the humans of ancient not’ Political Notes No. 100 (London: Lib- of the White Paper and a socio-economic Rome or Great Zimbabwe could not ertarian Alliance 1995) (www.libertarian. impact assessment released hopelessly have enjoyed a right to, despite the fact co.uk, accessed 29-1-2018)). When we late, after the minister had already de- that they were humans. The notion that speak of human rights, we must be refer- clared the policy as ‘final’. things can ‘become’ human rights is ring to a set of rights, which human be- problematic in that it violates the very ings are entitled to only by virtue of our The true nature of human essence of the concept of fundamental existence as human beings. Internet ac- rights rights, namely, inalienability and univer- cess is assuredly thus not a human right. It is prudent to ask whether, despite any sality. If something can ‘become’ a right, It can, however, be made into a consti- domestic or international law providing it can naturally stop being a right, which tutional or statutory right, of which it is that Internet access is a human right, it is a can of worms that only dictators and currently neither. is truly in the nature of human rights to tyrants would wish to open. Making a statutory right of Internet be capable of ‘creation’? Put differently, access should only be pursued after an do human rights pre-exist law and ac- Conclusion extensive good faith public participation crue to all human beings by virtue of our Vint Cerf, considered to be one of the process and an independently conduct- humanity, or do popular assemblies and pioneers of the Internet, said that ‘tech- ed socio-economic impact assessment governments ‘make’ human rights? This nology is an enabler of rights, not a right to ask the most important question of is yet another incarnation of the age-old itself’ (www.nytimes.com, accessed 29- all: Can the cash-strapped South African debate between natural law and positiv- 1-2018). When we wish to exercise our taxpayer afford to pay for everyone’s In- ism. right to freedom of expression, we do ternet access? Unless serious economic For a human right to be of a ‘human’ not think that government must – at growth and employment sets in soon, nature, it must satisfy the requirement taxpayers’ expense – provide us with a the answer must be an unequivocal ‘no’. of universality. Indeed, a human right podium and an audience. When we think means that something belongs to all hu- about our right to privacy, we do not mans regardless of who, where or even think government must provide us with Martin van Staden LLB (UP) is a legal when they are. Being human is not tem- tinted windows or locks for our gates. In- researcher at the Free Market Foun- porally limited, meaning that these types stead, we have the right to these things dation in Johannesburg. of rights have existed for as long as hu- but exercising those rights remains our q man beings have existed, regardless of own, personal responsibility.

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DE REBUS – MARCH 2018 - 34 - Juta ONLINE LEGAL SOLUTIONS Essential works for legal practitioners

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4606-02-2018 Juta Key Online Solutions De Rebus - March issue .indd 1 2018/02/16 2:23 PM LAW REPORTS THE LAW REPORTS

January 2018 (1) South African Law Reports (pp 1 – 330); [2017] 4 All South African Law Reports December (pp 605 – 927); [2018] 1 All South African Law Reports February (pp 321 – 619); 2017 (12) Butterworths Constitutional Law Reports (pp 1497 – 1605)

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

Abbreviations: the programme, Parkscape ob- relation thereto. The decision sureties for payment under the tained an order interdicting fell far short of procedural counterindemnity after unsuc- CC: Constitutional Court the felling of the so-called Den- fairness. cessfully demanding payment FB: Free State Division, Bloem- nendal compartment of trees SANParks’ decision to accel- from Golden Sun. The sureties fontein (near the suburb of Tokai), and erate the felling of trees was opposed the claim. They argued GJ: Gauteng Local Division, Jo- a rule nisi calling on MTO and set aside and MTO was inter- that Sasol’s demands did not hannesburg SANParks to show cause why dicted from felling any trees comply with the terms of the GP: Gauteng Division, Pretoria its consent to accelerated fell- in the Dennendal compart- guarantee in that they did not SCA: Supreme Court of Appeal ing should not be set aside. ment until lawful decisions to take place at Sasol’s address; WCC: Western Cape Division, Parkscape was particularly con- that effect were taken. but at that of Lombard. As a re- Cape Town cerned about the resultant loss The application was thus sult, so they argued, Lombard of shade in the Tokai area of the allowed with costs. was under no obligation to pay Administrative law Park. Parkscape argued that the Sasol under the guarantee, and Administrative action in con­ Park was a public amenity man- therefore neither Golden Sun tract ual­ context also reviewa- aged by SANParks under statu- Contract – demand nor the sureties were liable to ble: In Parkscape v MTO Forest- tory authority; that the consent guarantee indemnify Lombard in respect ry (Pty) Ltd and Another 2018 (1) to accelerate felling constituted of its payment. SA 263 (WCC) the first respond- the exercise of a public power; What constitutes substantial The core issue was the de- ent (MTO) concluded a lease and that public consultation compliance: In Lombard In- gree of compliance required with the second respondent, was, therefore, needed before surance Co Ltd v Schoeman in the case of demand guar- South African National Parks the accelerated felling could and Others 2018 (1) SA 240 antees, that is, whether strict (SANParks). SANParks was take place. (GJ); [2018] 1 All SA 554 (GJ) compliance was called for, or appointed by government to SANParks, in turn, argued Golden Sun purchased fuel whether substantial compli- man ­age South Africa’s national that its agreement with MTO on credit from Sasol. Golden ance was sufficient. parks. The lease allowed MTO was based on contract, and Sun requested the applicant, Maier-Frawley AJ pointed to clear invasive plantations on consequently, concerned mat- Lombard, to issue a demand out that the issue at stake was the Table Mountain National ters of private law. It further guarantee in favour of Sasol. a question of some debate in Park (the park). argued that its agreement In exchange, Golden Sun ex- both English and South Afri- The applicant, Parkscape, with MTO did not involve any ecuted a counterindemnity in can law. was a non-profit organisation public power considerations favour of Lombard, for which The core issue to be deter- dedicated to the preservation Gamble J held that SAN- the respondents (the sureties) mined was simply whether of Cape Town’s urban forests. Parks had indeed exercised a stood surety. The guarantee there was compliance with the In managing the felling public power when it agreed provided that Lombard had terms of the guarantee under of the trees, SANParks was to the expedited felling. The to pay the guarantee on the consideration. That involved acting in terms of a Cabinet decision was governmental receipt by it (as guarantor), determining what the relevant policy decision that all plan- in nature, regulated by leg- at Sasol’s own address, of terms actually required, being tations on Table Mountain islation, had immediate and Sasol’s (as beneficiary) writ- a matter of interpretation, on would, over time, be felled. direct legal consequences for ten demand, which demand the basis and in the manner The lease contained a felling both MTO and Parkscape’s would state that an amount laid down, inter alia, in Natal schedule that could be accel- members, and the balance of of up to R 60,5 million was Joint Municipal Pension Fund erated – subject to approval power was in SANParks’ fa- then due and payable by v Endumeni Municipality by SANParks – if plantations vour. The decision thus con- Golden Sun (as client) to the 2012 (4) SA 593 (SCA). More were destroyed or partially stituted reviewable adminis- beneficiary. Golden Sun was particularly, it was necessary destroyed by fire. In July 2016 trative action. placed under liquidation. to interpret the terms of the SANParks approved a request SANParks had failed to dis- Two demands for payment guarantee in their contractual by MTO for the accelerated charge its responsibilities to were made by Sasol with context, regard being had to felling of trees damaged by the public and had unlawfully which Lombard duly com- the commercial purpose of the mountain fires of March breached Parkscape’s right to plied. the particular provisions and that year. be informed of the true state Lombard launched the pre- the provisions of the guaran- Shortly after MTO initiated of affairs and to be heard in sent application against the tee as a whole, while bearing

DE REBUS – MARCH 2018 - 36 - in mind the inherent features after the hearing commenced, the NPA that, on that basis, recognised a duty to prevent of a demand guarantee. that the NPA’s decision to the decision to terminate the danger on similar facts. In The essential requirement discontinue the prosecution prosecution was liable to be the Coley case the defend- giving rise to liability under was flawed, in particular that set aside, was correctly made. ant erected wooden stakes to a demand guarantee was the it was irrational. They further The application for leave to protect trees in an area where receipt by the guarantor of a conceded that Mpshe had in- appeal was granted, but both children usually played. A girl demand containing a state- correctly invoked s 179(5)(d) appeals were dismissed with fell on one of the sticks which ment confirming that a debt of the Constitution and s 22(9) costs. resulted in her eye having to was due and payable by the of the National Prosecuting • See law reports ‘administra- be removed. The court in that client. That occurred in this Authority Act 32 of 1998 (the tive law’ 2016 (Oct) DR 36 for case held that ‘a prudent and case, notwithstanding the de- NPA Act) in reviewing his own the GP judgment. careful man, who gave his mand not having being made decision to prosecute, when mind to the matter as such at Sasol’s address. As such, that section only authorised Delict a person would naturally do, there was sufficient compli- him to review decisions to Element of unlawfulness: In should have foreseen that the ance with the terms of the prosecute of other directors Pro Tempo Akademie CC v sticks with such sharp pro- Sasol guarantee, and the ap- of public prosecution. Van der Merwe 2018 (1) SA jections in [an area] where plicant was entitled to claim The crisp issues before the 181 (SCA) the appellant (the children would naturally against the sureties based on SCA were to assess whether defendant) was the owner of play, were a source of danger the counter-indemnity. these concessions by the two a school. It planted saplings to very young children and The sureties were thus or- applicants, were correctly in the school’s playground. sooner or later might result dered to pay Lombard an made and whether there were Alongside the saplings, as in injury.’ The court had re- amount of R 54,8 million, additional reasons to set supports, the defendant gard to the notorious fact plus interest and costs. aside the decision to discon- erected steel posts, which that children, by nature, are tinue the prosecution. protruded 60 cm out of the impulsive. Criminal law – Navsa ADP held that the ground. The respondent’s In the Pro Tempo case the recordings on which Mpshe (the plaintiff) son, 13, dur- court further held that teach- prosecution relied in justifying the deci- ing a cricket game, leaned or ers were under a duty to pre- Decision to discontinue pros- sion to discontinue the pros- sat on one of these, and was vent harm to children in their ecution: The facts in Zuma v ecution, even if taken at face impaled, injuring his rectum care and children had a con- Democratic Alliance and Oth- value, did not encroach on and bladder. stitutional right to appropri- ers 2018 (1) SA 200 (SCA); the propriety of the investiga- The plaintiff successfully ate care when removed from [2017] 4 SA All SA 726 (SCA) tion of the case against Zuma sued for her son’s damages. their families. date back to 2007. Shortly af- or the merits of the prosecu- The defendant appealed to It concluded that the de- ter the applicant, who subse- tion itself. Collectively, the the SCA. The issue was wheth- fendant, which was a school quently became the President conversations neither showed er the defendant’s action in for children with learning dis- of South Africa, Jacob Zuma, a grand political design, nor erecting the steel posts was abilities, knew of the plain- was elected president of the was there any indication of wrongful. tiff’s son’s hyperactivity. It African National Congress clarity of thought on the part Navsa ADP held that it was failed to take steps to prevent (the ANC), Zuma was indicted of the relevant NPA officials indeed wrongful. In this re- foreseeable harm to children on criminal charges includ- about how either former Pres- gard it pointed out that the using the playground. ing racketeering, corruption, ident Mbeki or Zuma would action was positive, and re- The appeal was thus dis- money-laundering and fraud. be decisively advantaged or sulted in physical injury. The missed with costs. The prosecuting team wanted disadvantaged by the service defendant created the danger. Liability for omission: In Van the indictment served as soon of the indictment on either In Transvaal Provincial Ad- Vuuren v Ethekwini Munici- as possible, without regard to side of the ANC elective con- ministration v Coley 1925 AD pality 2018 (1) SA 189 (SCA) political considerations, but ference time line. 24 the Appellate Division had the appellant’s (the plaintiff) the Acting National Direc- The manner in which the tor of Public Prosecutions at affidavits were drawn and the the time (the ANDPP), Mokot- case conducted on behalf of edi Mpshe, (on his version the NPA was inexcusable. The of events) was persuaded exclusion of the prosecution by Leonard McCarthy, at the team from the final delibera- time the Director of Special tions leading up to the deci- Operations (the DSO), to hold sion to discontinue the prose- service over until after the cution appeared to have been ANC’s elective conference. deliberate, and was in itself Suffice it to mention that irrational. the National Prosecuting Au- In reviewing his own deci- thority (NPA) later decided to sion to institute criminal pro- discontinue the prosecution. ceedings against Zuma, and In 2016 the High Court, on ultimately making the deci- review, set aside the NPA’s sion to terminate the pros- decision following a ration- ecution, Mpshe wrongly in- ality challenge by the first voked and relied on s 179(5) respondent, the Democratic (d) of the Constitution and Alliance (the DA). s 22(2)(c) of the NPA Act. In Zuma and the NPA’s These provisions deal with consolidated applications for the review by an NDPP of a leave to appeal against the decision of a DPP and were in- High Court’s decision, both the applicable. Thus, the conces- applicants conceded, shortly sions on behalf of Zuma and

DE REBUS – MARCH 2018 - 37 - LAW REPORTS eight year old son, John, used 153 (SCA) the appellant (the tive action, namely judicial Discovery found evidence, a water slide in one of the re- defendant in the court a quo) review in terms of s 6 and which prompted it to notify spondent municipality’s (the Odinfin, was an authorised the remedies provided for in the Financial Services Board defendant in the court a quo) financial services provider s 8. Here Reynecke exercised (the FSB) that Barthram ‘did pools at the beachfront in (FSP) in terms of the Financial his right of judicial review not comply with the require- Durban. While John was slid- Advisory and Intermediary and obtained an order setting ments of the FAIS [Financial ing, he was pushed or bumped Services Act 37 of 2002 (the aside Odinfin’s procedurally Advisory and Intermediary by a child sliding behind him, FAIS Act). unfair action. Services Act 37 of 2002 (the causing him to lose his bal- While the respondent (the The fact that PAJA does not FAIS Act)] for continued ap- ance at the slide’s exit. As a plaintiff in the court a quo) afford a delictual remedy for pointment as a representative result, John bumped his face Reynecke, was still employed damages does not necessarily of [Discovery]’. In its notice on the bottom of the pool. by Odinfin, he attended an in- mean that unjust administra- to the FSB, Discovery marked His alleged injuries included duction programme with Ned- tive action will not be delict- with an ‘X’ the block labelled a fracture of his jaw and loss bank with whom he was seek- ually wrongful if there was a ‘honesty and integrity’ as the of teeth that required surgical ing employment. Reynecke breach of the statute pursu- reason for the withdrawal of intervention. failed to disclose this to Odin- ant to which the administra- Barthram’s authority to act. At the time, there was no fin. When the true facts came tive action was taken and if Barthram successfully lodged municipal official controlling to Odinfin’s knowledge, it ini- such statute on a proper in- an urgent application for an access to the slide or super- tiated disciplinary proceed- terpretation confers a delict- interim order to have his de- vising its use. The slide itself ings against Reynecke. The ually remedy. barment lifted. In subsequent was restricted for the use of alleged misconduct by Rey- Reynecke did not allege review proceedings the court a under-12s, with a municipal necke was dishonesty and/ that there was a breach of the quo dismissed Barthram’s ap- bylaw making it an offence or competing with employer FAIS Act. And even if there plication. It further held that for anyone above that age to and/or conflict of interest. had been a breach of s 14 of a distinction should be drawn enter or use it. Reynecke gave written no- the FAIS Act, it (the FAIS Act) between what is contained in The plaintiff sued the de- tice of termination of his em- does not envisage a delictual s 14(1) and 14A of the FAIS fendant for her and John’s ployment and did not attend claim for damages. The pri- Act. The court a quo held that damages, but her action was the disciplinary hearing. He mary aim of s 14 is not to the effect of s 14(1) is that the dismissed by the High Court. was found guilty of miscon- protect the interests of em- debarred representative ‘can no On appeal to the SCA, the duct and, without notice, he ployed representatives such longer represent that particular crisp issues were whether the was debarred by Odinfin in as Reynecke, but to advance financial services provider’. The defendant’s failure to control terms of s 14(1) of the FAIS the public good. effect of a debarment in terms access to and to supervise the Act. The imposition of liability of s 14A, in turn, precludes the slide was wrongful. This caused Reynecke’s for damages would have a debarred representative from Navsa ADP pointed out that then employer, Nedbank, to ‘chilling effect’ on the perfor- rendering financial services on the defendant created the dismiss him. Reynecke later mance by FSP’s of their statu- behalf of any FSP. risk of harm by providing the obtained the review and set- tory duty imposed by s 14 On appeal to the SCA the pool and slide. It was com- ting-aside of the debarment, and on the administration of Registrar for Financial Service mon cause that any potential an administrative action, on the FAIS Act. Providers (the Registrar), con- users of the slide would be the ground that Odinfin had Where the decision-maker tended that the High Court immature and undisciplined. failed to give him notice and a (here: Odinfin) has acted dis- erred in its finding that the Public policy required the hearing before doing so. honestly or corruptly, the effect of a debarment of Bar- prevention of chaotic use of Reynecke then instituted a court will impose liability. thram by Discovery in terms the slide, such as pushing, delictual action for damages, However, courts are slow to of s 14(1) was that he was sliding in groups or intention- alleging Odinfin was obliged find that statutes accord de- only precluded from render- al colliding with other users. to give him notice and a hear- lictual remedies for mere ing financial services to the In considering the defend- ing, before disbarring him. negligence in performing an public on behalf of the latter. ant’s potential liability, the The High Court upheld his administrative duty. Barthram, in turn, appealed court considered the consti- claim. On appeal to the SCA, The appeal was thus up- against the dismissal of his tutional norm of the best in- the issue was whether non- held with costs. application to have his debar- terests of children. compliance with s 3 of the • See case note Daryl Marc ment lifted. The court reasoned that the Promotion of Administrative de Bruyn ‘Employer liable Ponnan JA held that the imposition of a duty of care Justice Act 3 of 2000 (PAJA) for damages caused to ex- FAIS Act requires an author- would not result in ‘an abdi- was delictually wrongful. employee due to non-compli- ised FSP such as Discovery cation of parental control’ or On appeal, Tsoka AJA held ance with debarment process’ not just to be authorised and ‘an intolerable financial bur- that the answer to the present 2015 (Sept) DR 42 for the GP licensed by the Registrar, but den’. It would further also not dispute turns not on the pro- judgment. also to exercise oversight in extend to all facilities con- visions of the FAIS Act, but on respect of the initial and con- trolled by the defendant. the provisions of PAJA itself. Financial services tinuing fitness of its chosen The court concluded that There is nothing in PAJA to representatives. the defendant’s omission was suggest that the Legislature Effect of disbarment of a fi- The FSP, having gone negligent and it was, there- intended there to be a delict- nancial advisor by the em- through a vetting process at fore, held liable for any dam- ual remedy for non-compli- ployer FSB: In Financial Ser- the hand of the Registrar, is age the plaintiff could prove ance with its provisions in vices Board v Barthram and eminently suited to subject were owed to her or John. general or its provisions re- Another 2018 (1) SA 139 (SCA) its representatives to a simi- The appeal was upheld with lating to procedural fairness the respondent, Barthram, lar initial vetting and there- costs. in particular. was employed by Discovery. after to exercise oversight of No delictual remedy for pro- On the contrary, PAJA deals After Barthram purported to them. A debarment of a rep- cedurally unfair debarment with at some length with the terminate his employment resentative in terms of s 14(1) under PAJA: In Odinfin (Pty) rights of an aggrieved person with Discovery and joined is complete when the FSP has Ltd v Reynecke 2018 (1) SA affected by unfair administra- the employ of Old Mutual, withdrawn the representa-

DE REBUS – MARCH 2018 - 38 - tive’s authority to act on its degree of skill, care and dili- gence and was not commen- of [the second appellant’s] behalf and has removed such gence to be expected of an au- surate with the exorbitant books. The EC imposed vari- person’s name from its own thorised financial services ad- commission received by the ous administrative penalties register in terms of s 13(3). viser furnishing investment defendant. in the amount of R 3 million The court held that the advice. With regard to the second on the two appellants. court a quo has misinter- The defendant, in turn, aspect, namely that of the The two appellants lodged preted the legal effect of a claimed indemnity from the third party action against the a review application with the debarment in terms of s 14(1) third party insurer (the in- insurer, the court held that GP. They argued that the EC in holding that it precludes surer). The insurer, however, the insurer had placed too had incorrectly applied the the representative only in re- denied its liability under the much emphasis on the word- civil standard of proof and spect of the debarring FSP. A policy, because, so it argued, ing of the exclusion clause that the EC should have ap- representative that no longer the defendant’s behaviour fell and in doing so, disregarded plied the criminal standard of has the fitness and propriety into the insurance policy’s ex- the purpose of the insurance proof (that is, ‘beyond reason- or competency requirements clusion clause. contract entered into between able doubt’). Their applica- poses a risk to the investing The exclusion clause pro- defendant and the insurer. tion was dismissed. public generally. A represent- vided that the insurer ‘shall The insurer had undertaken On appeal to the SCA, Pon- ative who is debarred in terms not indemnify [the defendant to indemnify the defendant nan JA held that the powers of s 14(1) is thus debarred on in respect of] any loss arising against losses arising out of of the EC and the Appeal an industry-wide basis from out or any claim made against any legal liability arising from Board are limited to the im- rendering financial services them ... arising from or con- claims first made against the position of a monetary pen- to the investing public. tributed by depreciation (or defendant and reported dur- alty. In proceedings before However, so the SCA rea- failure to appreciate) in value ing the period of insurance the EC, neither the police nor soned, Discovery failed to of any investments ... or as a for breach of duty in connec- the prosecutorial authority is follow the principles of pro- result of any actual or alleged tion with his business by rea- involved. That the facts un- cedural fairness required in representation ... provided by son of any negligent act, er- derpinning the complaint can reaching its decision to de- the [defendant] as to the per- ror, or omission, committed as well give rise to a criminal bar Barthram. Discovery had formance of ... such invest- in the conduct of the defend- offence does not alter the na- failed to honour the audi al- ments’. ant’s business. The exclusion ture of the complaint before teram partem rule during a As a result, the court dealt clause had to be interpreted the EC. meeting between Barthram in detail with the question of restrictively so that it made In proceedings before the and two Discovery employ- what exactly Castro did, and business sense in the eyes of EC, there is no formal ac- ees. Barthram was not afford- what exactly was excluded both insurer and insured. cusation of a breach of the ed the opportunity to repre- from cover in the insurance The defendant was or- criminal law. The proceed- sent himself or to present his policy. dered to pay the plaintiff the ings are initiated by way of a case. Daffue J listed the follow- capital amount of R 2 million complaint by the DMA to the Barthram’s debarment was ing aspects which required and interest as set out in the EC, not a criminal charge. The therefore invalid and the his consideration: First, the court order. The third party proceedings before the EC appeal was dismissed with duties of a financial advisor was ordered to indemnify do not lie within the criminal costs. or broker such as the defend- the defendant against the de- sphere and cannot be classi- ant; and, secondly, the rules fendant’s liability to plaintiff, fied as being criminal in na- Implied/express duty on of construction of contracts subject to the limitations re- ture. service provider to exercise in general and insurance con- ferred to above. Section 104 of the Act reasonable skill and care: tracts in particular. provides that ‘if a panel is The facts in Oosthuizen v In dealing with the first Nature of proceedings before satisfied that a respondent Castro (Centriq Insurance Co aspect, the court referred to Enforcement Committee: In has contravened or failed to Ltd as Third Party) [2017] 4 extensive authority on the Pather and Another v Finan- comply with the Act’, it must All SA 876 (FB) were as fol- subject of the duties of a cial Services Board and Others impose an ‘administrative lows: Castro (the defendant) FSP. Generally, a provider of 2018 (1) SA 161 (SCA); [2017] penalty’. The civil standard of was a financial services pro- financial services will be un- 4 All SA 666 (SCA) the court proof thus applies to proceed- vider (FSP). Oosthuizen’s (the der an implied if not express was asked to consider the ings before the EC. However, plaintiff) husband passed contractual duty to exercise nature of proceedings before the civil standard of proof away and she inherited an reasonable care and skill in the Financial Services Board’s does not necessarily mean a amount of money. She de- carrying out the services re- (FSB) Enforcement Committee bare balance of probability. cided to invest an amount of quired of him. The standard (EC). The facts were that the The more serious the allega- R 2 million of the money, and of care and skill will be, at Directorate of Market Abuse tion, or the more serious the requested the defendant to least in most respects, that (the DMA) conducted an in- consequences if the allega- advise her in that regard. The to be expected of a like pro- vestigation in terms of s 83(1) tion is proved, the stronger defendant advised her to in- vider engaged to provide the of the Securities Services Act must be the evidence before vest the money in the Share- relevant services. 36 of 2004 (the Act) into the we should find the allega- max investment scheme. It is The court pointed out that two appellants. The first ap- tion proved on the balance of trite that she lost the capital the defendant was aware that pellant, Pather, was the Chief probabilities. amount of her investment. the plaintiff was in a vulner- Executive Officer of the sec- Finally, the court confirmed The plaintiff sued the de- able position and was anxious ond appellant, Ah-Vest Ltd. that the constitutional pro- fendant for damages. She about not losing any of her The DMA investigation con- tection to ensure that admin- alleged that the defendant investment. There were suf- cluded that the two appel- istrative decisions may be re- had failed to act honestly ficient red flags around the lants contravened s 76 of the viewed in a court on grounds and fairly in her interests in investment scheme to require Act. The matter was referred of unlawfulness, procedural recommending the Sharemax that he proceed with caution to the EC of the FSB where ‘it unfairness or unreasonable- investment scheme. She al- in advising the plaintiff. His was established on a balance ness, is regulated in terms leged further that the defend- poor advice was indicative of probability that Pather au- of s 33 of the Promotion of ant had failed to exercise the of lack of skill, care and dili- thorised the manipulations’ Administrative Justice Act 3

DE REBUS – MARCH 2018 - 39 - LAW REPORTS of 2000, and not in terms of parties’ written agreement of the Medical Schemes Act eys, its enrichment was pre- s 35(3) of the Constitution. did not postpone it. The mi- 131 of 1998 (the Act). It sued sumed and it bore the onus The appeal was thus dis- nority judgment placed un- the appellant, Yarona, for pay- to plead and prove loss of missed with costs. due significance on the term ments allegedly made in the enrichment, which it did not ‘due’ in the clause in deciding bona fide and reasonable, but do. It argued however, that Prescription whether the parties intended mistaken belief that they were Medshield failed to prove its Date on which debt becomes to postpone prescription. owing. It was averred that impoverishment, as it had due: In Trinity Asset Manage- The court referred to a long Yarona was unjustifiably en- benefited from the services ment (Pty) Ltd v Grindstone line of earlier SCA decisions riched by the payments and rendered by Yarona. Investments 132 (Pty) Ltd 2018 in which the court had inter- Medshield correspondingly im- The court rejected Yarona’s (1) SA 94 (CC); 2017 (12) BCLR preted the meaning of ‘due’ poverished. Medshield’s relied argument. It held that when- 1562 (CC) the facts were as fol- in s 12(1) of the Prescription on the condictio indebiti. ever a mistaken payment was lows: On 1 September 2007 the Act 68 of 1969. On the basis Rogers AJA held that it is made, Medshield was impover- respondent, Grindstone, bor- of these decisions the court not every mistake which en- ished by the relevant amount. rowed an approximate R 3,05 held that the concept of ‘due’ titles the mistaken party to For Yarona to seek to rely on million from the appellant, means that ‘there has to be a recover payment. The onus any enrichment caused by Trinity. The loan capital was debt immediately claimable rests on the claimant to prove its having rendered services immediately claimable from by the creditor or, stated in the excusability of the error. to Medshield, it should have Grindstone, but it was a term another way, there has to be Having regard to each of the instituted a condictio against of the agreement that it would a debt in respect of which payments made to Yarona, Medshield by way of a counter- only become payable once the debtor is under an obliga- the court found that other claim. Grindstone had received the tion to perform immediately’. than for one of the payments, The appeal was thus dis- written demand and the no- Thus, prescription cannot be- it could not be said that they missed with costs. tice period has expired. gin to run against a creditor were excusable. Clause 2.3 of the agreement before his cause of action is Faced with that reality, Other cases provided that: ‘The Loan Cap- fully accrued. Medshield argued that the Apart from the cases and top- ital shall be due and payable A loan payable on demand requirement of excusabil- ics that were discussed or re- to the Lender within 30 days is thus due immediately on ity should be relaxed in the ferred to above, the material from the date of delivery of conclusion of the contract un- case of medical schemes. The under review also contained the Lender’s written demand’. less there is a clear contrary court dismissed Medshield’s cases dealing with: Adminis- On 19 September 2013 agreement between the par- argument. Healthcare is a trative law, civil procedure, Trinity enquired from Grind- ties that it will become due matter of fundamental im- company law, contempt of stone when the latter would at a later stage. The fact that portance to everyone. Medi- court, criminal law, environ- pay the outstanding debt. On payment was due 30 days af- cal schemes provide a way ment, funding of political 9 December 2013, Trinity, by ter demand makes no differ- of ensuring as far as possible parties, immigration, labour service of the sheriff, deliv- ence to the fact that the debt that people have access to ad- law, mineral law, personal in- ered a letter of demand on is due immediately for pur- equate healthcare. Members jury and privacy and dignity. Grindstone. No payment was poses of the Prescription Act. of medical schemes are par- forthcoming. Instead, Grind- The creditor has the exclusive ticularly vulnerable to abuse. stone denied liability on the power to demand that perfor- Many of them earn modestly. q basis that the debt had pre- mance be made any time after If the funds which should be scribed. the agreement. administered for their benefit In the WCC, Trinity applied In the present agreement, are abused, they stand not Have you read a for a provisional order of liq- the word ‘due’ was used in only to lose moneys deducted recent law report uidation of Grindstone. The different contexts and it from their earnings but to High Court held that the debt clearly indicated that the par- have their access to health that you want to of Grindstone had been extin- ties had no intention to post- care jeopardised. The per- give your opinion guished by prescription and, pone prescription. sons charged with the admin- by reason thereof, dismissed Ultimately, it is a question istration of the scheme can on? Trinity’s application. of fact whether the parties in- be viewed as representatives In a split decision, the SCA tended demand to be a condi- standing in a similar position Or would you confirmed the High Court’s tion precedent for the debt to to executors, trustees and decision that the clause in be ‘due’. Each case has to be liquidators. In that light, al- like to write a question did not contain a decided on its own fact. though Medshield had failed, comprehensive clear indication that prescrip- The appeal was accordingly in respect of all but one of case note on an tion would be postponed. dismissed with costs. the payments, to prove that On appeal to the CC the such payments were made as interesting case? case was decided by majority Unjust a result of excusable error, its decision of six to five, mainly right to recover them by way Then have a look on the interpretation of the enrichment – of the condictio indebiti was relevant clause and not the payment made in not barred. at the De Rebus applicable principles. The mi- error Yarona, in turn, contended writing guidleines nority decision relied heavily that Medshield was required and send on the reasoning by the mi- Prove of excusability of er- to prove not only that Yarona nority in the SCA on the inter- ror not always a require- was enriched by the amounts your article to: pretation of clause 2.3 of the ment: In Yarona Healthcare claimed but also that such agreement. Network (Pty) Ltd v Medshield enrichment occurred at Med- derebus@derebus. The majority per Cam- Medical Scheme [2017] 4 All shield’s expense, that is, that eron J held that prescription SA 705 (SCA) the respond- Medshield was impoverished org.za started on the day that the ent, Medshield, was a medical by the amounts claimed. Since loan was advanced and the scheme registered in terms Yarona received unowed mon-

DE REBUS – MARCH 2018 - 40 - NEW LEGISLATION New legislation

Legislation published from 2 – 31 January 2018

of Aircraft Regulations, 2017. GN R31 Draft Bills GG41387/19-1-2018. Higher Education Act 101 of 1997 Draft Public Audit Amendment Bill. Philip Stoop BCom LLM (UP) LLD Regulations for the registration of pri- GenN9 GG41386/19-1-2018. (Unisa) is an associate professor in the vate higher education institutions: Ap- department of mercantile law at Unisa. plication for amendment form. GN41 Draft delegated legislation GG41399/26-1-2018. Amendment of the policy for quality Regulations for the registration of pri- assurance of private learning centres, Bills vate higher education institutions: A private further education and training guide for completing the application for Public Investment Corporation Amend- colleges and accreditation of private registration as a private higher education ment Bill B1 of 2018. assessment bodies in terms of the Gen- institute. GN43 GG41399/26-1-2018. eral and Further Education and Training Commencement of Acts Regulations for the registration of pri- Quality Assurance Act 58 of 2001 for Children’s Amendment Act 17 of 2016 vate higher education institutions: An- comment. GN8 GG41370/5-1-2018. and the Children’s Second Amendment nual reporting form. GN42 GG41399/26- Fee guideline and schedules pursuant Act 18 of 2016. Commencement: 26 Jan- 1-2018. to the guideline in terms of reg 19(13) uary 2018. GN49 GG41399/26-1-2018. Regulations for the registration of pri- vate higher education institutions: A in terms of the National Credit Act 34 of Promulgation of Acts guide for completing an application for 2005 for comment. GenN8 GG41377/12- amendment. GN44 GG41399/26-1-2018. 1-2018. Legal Practice Amendment Act 16 Liquor Products Act 60 of 1989 Proposed regulations to exclude a waste of 2017. Commencement: To be pro- Amendment of the limitation on use of stream or a portion of a waste stream claimed (see the amended s 120). certain particulars in sale of liquor prod- from definition of waste in terms of GN33 GG41389/18-1-2018 (also avail- ucts. GN4 GG41370/5-1-2018 (also avail- the National Environmental Manage- able in isiXhosa). able in Afrikaans). ment: Waste Act 59 of 2008. GN14 GG41380/12-1-2018. Insurance Act 18 of 2017. Com- Magistrates’ Courts Act 32 of 1944 Draft owner builder exemption applica- mencement: To be proclaimed. GN32 Appointment of one or more places tion form in terms of the Housing Con- GG41388/18-1-2018 (also available in within each district for the holding of sumer Protection Measures Act 98 of Afrikaans). a court for such district (Cape Town). 1998. BN2 GG41386/19-1-2018. GN61 GG41414/31-1-2018. Selected list of delegated Regulations on additional functions as- Occupational Diseases in Mines and signed to the National Student Finan- legislation Works Act 78 of 1973 cial Aid Scheme (NSFAS) in terms of the Allied Health Professions Act 63 of Increase of pension benefits. GN60 National Student Financial Aid Scheme 1982 GG41410/26-1-2018 (also available in Act 56 of 1999 for comment. GN34 Unprofessional conduct: Prohibition of Afrikaans). GG41390/19-1-2018. multilevel marketing, perverse incen- Promotion of National Unity and Rec- Draft Asbestos Abatement Regulations tives and franchising. BN1 GG41386/19- onciliation Act 34 of 1995 in terms of the Occupational Health and 1-2018. Increased amounts in terms of reg 8(2)(a) Safety Act 85 of 1993 for comment. GN Civil Aviation Act 13 of 2009 of the regulations relating to assistance R29 GG41387/19-1-2018. Eighteenth Amendment of the Civil to victims in respect of basic education. Draft rural education policy in terms of Aviation Regulations, 2017. GN R13 GN R12 GG41378/12-1-2018 (also avail- the National Education Policy Act 27 of GG41379/12-1-2018. able in Afrikaans). 1996 for comment. GN36 GG41399/26- Compensation for Occupational Inju- Remuneration of Public Office Bearers 1-2018. ries and Diseases Act 130 of 1993 Act 20 of 1998 Determination of permit fees under Amendment of sch 4: Manner of calculat- Determination of salaries and allow- s 23(2)(a) of the National Railway Safety ing compensation. GN17 GG41382/16-1- ances of traditional leaders, members Regulator Act 16 of 2002 for comment. 2018. of provincial houses of traditional lead- BN25 GG41399/26-1-2018. Increase in monthly pensions. GN18 ers and members of national house of Lift, escalator and passenger conveyor GG41382/16-1-2018. traditional leaders for 2017/18. Proc1 regulations: Incorporation of the code Increase of the maximum amount of GG41372/4-1-2018. of practice for inspection and testing of earnings on which the assessment of Road Accident Fund Act 56 of 1996 lifts in terms of the Occupational Health an employer shall be calculated. GN16 Adjustment of the statutory limit in and Safety Act 85 of 1993 for comment. GG41382/16-1-2018. respect of claims for loss of income GN R52 GG41400/26-1-2018. Convention on the International Rec- and loss of support (R 266 200 with ognition of Rights in Aircraft Act 59 of effect from 31 January 2018). BN4 1993 GG41399/26-1-2018 (also available in Third amendment of the Mortgaging Afrikaans). q

DE REBUS – MARCH 2018 - 41 - EMPLOYMENT LAW – LABOUR LAW Employment law update

were some similarities. In this regard, been given an alternative position in an- while the applicant may have performed other town. Furthermore, the LC found some remedial work, this remedial work that fair selection criteria had not been was incidental to its main business. On applied as performance ratings of the the other hand, the essence and total- candidates interviewed had been consid- Monique Jefferson BA (Wits) LLB (Rhodes) ity of the new contractor’s business was ered when making the appointment for is an attorney at Bowmans in Johannes- remedial work. The purpose of the ap- the new area manager role. This was not burg. plicant’s work was to prevent defects recorded in the pre-trial minute but the from occurring whereas the purpose of LC found that the alternative position the new contractor’s work was to repair and selection criteria could be read into Section 197 transfer defects that had occurred. the pre-trial minute from the pleadings. In Fraser Alexander (Pty) Ltd v Tswelopele Whitcher J commented that there can- This was held by the Labour Appeal Beneficiation Operation (Pty) Ltd and not be a transfer of a business as a going Court (LAC) to be incorrect. In this re- Others [2017] 12 BLLR 1251 (LC), the ap- concern when a contract is terminated gard, the LAC stated that in order for plicant had been contracted to perform for non-performance like it was in this there to be a fair trial each side needs maintenance and management work on case as it would not be possible for the to know the case that they are required a dam in terms of an agreement which service to continue seamlessly. In this to meet. A court cannot tolerate a party expired. Prior to the expiry of the agree- case, extensive remedial work had to be making up the case as they go along as ment the respondent put the work out done first as the dam had become in- this would result in disorderly litigation. to tender, but did not appoint another operable. Whitcher J also remarked on The purpose of a pre-trial minute is to contractor. Instead, the respondent per- the impracticalities of s 197 applying narrow down the issues. Thus, a litigant formed limited maintenance work itself to these set of facts as the employees cannot go back to the broader pleadings and then appointed another contractor would have to transfer to the respondent unless an amendment to the pre-trial to perform remedial work, as the appli- for a week, then to the interim contrac- minute is agreed. In practice, a pre-trial cant’s performance under the contract tor for three months and then to a new minute often contradicts the pleadings had not been up to standard. The ap- service provider, once appointed. The as issues are narrowed down. It is thus plicant alleged that the remedial work application was dismissed. essential to give careful consideration to formed part of the general maintenance what is included in a pre-trial minute as work and, therefore, fell within the scope Dismissal for operational the court cannot undo what the parties of the agreement that it had had with requirements have confined themselves to in the pre- the respondent. Accordingly, the appli- trial minute. In this case, the alternative cant alleged that the agreement between In South African Breweries (Pty) Ltd v position in another town was not record- the respondent and the new contractor Louw [2018] 1 BLLR 26 (LAC), the ap- ed in the pre-trial minute. Furthermore, constituted a transfer of a business as a plicant restructured its business in the the applicant never applied for this al- going concern in terms of s 197 of the Eastern Cape. The respondent’s role of ternative position despite being invited Labour Relations Act 66 of 1995. sales manager was proposed to be made to do so. The respondent’s evidence was that redundant and the functions that he per- It was held by the LAC that it was ap- the contractor had been appointed for formed would be subsumed into a new propriate for the applicant to invite the a limited duration to simply perform re- role of area manager. This new role had respondent to apply for the new role. medial work and not the normal manage- greater responsibilities than the sales Performance was not used as a selec- ment and maintenance work, after which role as it encompassed management tion criterion as alleged by the respond- another contractor would be appointed. functions and operations, as well as the ent but rather the fact that the role was Whitcher J considered the facts and sales functions. It was also at a higher being made redundant and he was the found that none of the applicant’s tools, management level than his current role. incumbent of the role was the selection machinery or assets transferred to the re- The respondent was not successful in criterion. The respondent’s past perfor- spondent or the new contractor. Further- applying for the area manager role and mance was not the selection criterion more, no employees were transferred to was retrenched. The Labour Court (LC) but became relevant in determining the the respondent or the new contractor by found that the dismissal was unfair and employee’s suitability for the new role. It the applicant. The new contractor used ordered reinstatement. The applicant was held by the LAC that being required 25 of its own employees to perform the took the matter on appeal alleging that to compete for a new role is not a meth- remedial work whereas the applicant this decision was based on findings of od of selection for retrenchment but is a sought to transfer 65 of its employees fact that were not pleaded or recorded legitimate method for seeking to avoid to perform this work. Furthermore, the in the pre-trial minute and were not sup- the retrenchment of a displaced employ- work performed by the new contractor ported by the evidence. ee. The respondent had also not objected was substantially different and was of The LC found that the dismissal was to the selection process at the time. The a short term duration albeit that there unfair as the respondent could have appeal was upheld with costs.

DE REBUS – MARCH 2017 - 42 - no remorse could not be sustained in the Following this the LAC held that the absence of an internal inquiry; and court a quo incorrectly approached the • the dismissal was in breach of a col- matter by conflating an unfair dismissal lective agreement and the arbitrator’s dispute with a dispute concerning the failure to address this point was reason application of a collective agreement. alone to set aside the award. In assessing the arbitrator’s findings The Labour Court (LC) focussed against the test set out in Sidumo and largely on the last ground raised. It was Another v Rustenburg Platinum Mines common cause that a collective agree- Ltd and Others (2007) 28 ILJ 2405 (CC), ment between the union and employer the LAC concluded that the remaining at- afforded an employee the right to a dis- tacks raised against the award stood to ciplinary hearing before an employee is fail. The LAC did, however, observe, on met with any sanction. The court found two separate occasions in its judgment, that the arbitrator’s failure to address that in the absence of a cross review Moksha Naidoo BA (Wits) LLB (UKZN) the non-compliance with the collective against the finding that the employee’s is an advocate at the Johannesburg Bar. agreement resulted in him misdirecting dismissal was procedurally unfair, it himself as to the nature of the inquiry could not disturb the arbitrator’s finding Identifying the correct and that he ought to have ‘examined and on this specific issue. applied the collective agreement’. The The appeal was upheld with costs and cause of action court set aside the award and remitted the arbitration award confirmed. Ekurhuleni Metropolitan Municipality v the matter to the bargaining council. SAMWU and Others (LAC) (unreported On appeal the employer argued that Commentary case no JA56/2015, 18-2-2017) (Suther- the court a quo misdirected itself by It is clear that the employee’s contractu- land JA with Musi JA and Coppin JA) failing to recognise the proper cause of al right to a disciplinary hearing before On 11 February 2011 an internal dis- action referred to arbitration – the em- being dismissed, as found in the collec- ciplinary hearing was brought to an ployee referred an unfair dismissal dis- tive agreement, was breached. Thus, it abrupt end when violence broke out. The pute and not a dispute about the applica- was open for her to refer a contractual chairperson was assaulted, his cellphone tion of a collective agreement. dispute to the LC and sue the employer thrown against the wall and the record- In addressing this argument, the La- for damages. Had she embarked on this ing device damaged. bour Appeal Court (LAC) held: cause of action, her dispute would fall All the employees who came before ‘The submission is sound. Indeed, a squarely within the confines of a con- the chairperson were dismissed for claim based on a breach of a collective tractual dispute where the tenet of law- their actions on 11 February for either agreement is one that is regulated by fulness as opposed to fairness, would be participating in, alternatively inciting section 24 of the LRA. The dispute re- the determining yardstick. unruly behaviour. The employees were ferred in this case is about an alleged Elaborating on this point, in Denel informed of their dismissals by way of unfair dismissal and is regulated by sec- (EDMS) Bpk v Voster 2004 (4) SA 481 a notice without being subjected to an tion 191 of the LRA. Moreover, the relief (SCA), the employer adopted a two-stage internal hearing. sought is that which is regulated by sec- approach in disciplining its employees; The second respondent employee re- tion 193 of the LRA which provides rem- an employee would first come before a ferred a dismissal dispute to the bar- edies for unfair dismissals, not breaches disciplinary committee, which if finding gaining council. At arbitration the em- of a collective agreement.’ the employee guilty of the charge, would ployee denied she took part in or incited In addition, the LAC referred to its recommend the sanction to certain iden- the violence on the day in question. The own judgment in Highveld District Coun- tified managers. The policy gave the appellant employer led evidence of wit- cil v Commission for Conciliation, Media- managers the authority to accept or re- nesses who testified that she tried to tion and Arbitration and Others (2003) ject the committee’s recommendations. prevent others entering the room to as- 24 ILJ 517 (LAC) and quoted the follow- This procedure formed part of the em- sist the chairperson and was shouting ing extract: ployee’s terms and conditions of em- ‘hit him, hit him’. ‘The relevant issue referred to the ar- ployment. In accepting the employer’s version, bitrator was whether the respondent’s The respondent employee was subject- the arbitrator found the employee’s dis- dismissal was procedurally fair. Put dif- ed to a hearing before the disciplinary missal substantively fair, but procedur- ferently, the respondent sought to vin- committee and having been found guilty ally unfair. Relying solely on the Labour dicate his right in terms of s 185 of the of the charges put to him, the committee Relations Act 66 of 1995 (LRA), the ar- Labour Relations Act 66 of 1995 (the took it on itself to dismiss the employee bitrator found there was no reason why Act) not to be unfairly dismissed. More without following the second stage of the the employer could not hold an inquiry specifically, the respondent sought to disciplinary process. The employee suc- as envisaged in sch 8 of the Code of vindicate his right in terms of s 188(1) cessfully sued the employer in the High Good Conduct annexed to the LRA. How- (b) of the Act to be dismissed only in ac- Court for breach of contract. On appeal, ever, given the magnitude of the miscon- cordance with a fair procedure. It is a the Supreme Court of Appeal (SCA) held duct, the arbitrator declined to award right separate and distinct from the re- that the disciplinary policy adopted by the employee any compensation flowing spondent’s contractual rights in terms of the employer was a fair one, but rejected from her procedurally unfair dismissal. the collective agreement. the argument that the alternate process On review, the first respondent union, … used to dismiss the employee was ‘just on behalf of the employee, raised the fol- It does not follow … that a contractual as good’. When an employer agrees to or lowing grounds to set aside the award – procedure does not give rise to contrac- compiles with a specific policy, it is not a • the arbitrator erred in not awarding tual rights that a contracting party can defence in a contractual dispute to argue compensation after having found the enforce in the appropriate forum and that any deviation from the policy is just employee’s dismissal procedurally un- in the appropriate manner. In this case, as fair as the policy itself. The SCA held fair; however, we are not called upon to adju- the employer was obliged to follow and • the arbitrator was wrong to reject the dicate a contractual right, but a statutory implement its own policy and could not employee’s version of events; right to a dismissal that is procedurally unilaterally depart from same. The ap- • the finding that the employee showed fair.’ peal was dismissed with costs. q

DE REBUS – MARCH 2017 - 43 - RECENT ARTICLES AND RESEARCH

By Meryl Recent articles and research Federl

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Abbreviation Title Publisher Volume/issue Advocate Advocate Bar Council of South Africa (2017) December AHRLJ African Human Rights Law Journal Pretoria University Law Press (2017) 17.2 (PULP) IPLJ South African Intellectual Property Law Juta (2017) 5.1 Journal Litnet LitNet Akademies (Regte) Trust vir Afrikaans Onderwys (2017) December PER Electronic Law Journal North West University, Faculty (2017) December of Law (2018) January SALJ South African Law Journal Juta (2017) 134.4 SAYIL South African Yearbook of International Law Juta (2016) SJ Speculum Juris University of Fort Hare (2016) 30.1 (2016) 30.2 SLJ Stellenbosch Law Review Juta (2017) 28.2

Access to information Constitutional law to S v Kolea 2013 (1) SACR 409 (SCA)’ (2016) 30.2 SJ 1. Salau, AO ‘The right of access to in- Chitimira, H ‘Selected challenges and formation and national security in the prospects of the Zimbabwe Constitu- Customary international African regional human rights system’ tion of 2013 in the protection of human (2017) 17.2 AHRLJ 367. rights and constitutional democracy in law Zimbabwe’ (2017) 28.2 SLJ 354. Ozubide, A ‘How the use of force against Administrative law Kibet, E and Fombad, C ‘Transformative non-state actors transformed the law of Van Coller, H ‘Geloofsinstellings en die constitutionalism and the adjudication self-defence after 9/11’ (2016) SAYIL 1. hersieningsbevoegdheid van die howe’ of constitutional rights in Africa’ (2017) (2017) December LitNet. 17.2 AHRLJ 340. Delict Ntlama, N ‘The “Treadmill Approach” in Okpaluba, C ‘Does “prosecution” in the South Africa’s constitutional adjudica- Civil procedure law of malicious prosecution extend to tion process’ (2016) 30.1 SJ 32. Broodryk, T ‘Strategic considerations in malicious civil proceedings? A Common- global litigation: Comparing judicial case wealth update (part 1)” (2017) 28.2 SLJ management approaches in South Africa Credit law 402. with the United States’ (2017) 28.2 SLJ Brits, R ‘The National Credit Act’s rem- 379. edies for reckless credit in the mortgage Education law context’ (2018) January PER. De Freitas, SA ‘The protection of public Company law Vessio, M ‘Section 127 of the National schools with a religious ethos in South Credit Act: A form of statutory repudia- Thabane, T and Snyman-van Deventer, Africa against the background of Zylb- tion – how it modifies the common law’ E ‘Pathological corporate governance de- erberg v Sudbury Board of Education’ (2016) 30.1 SJ 67. ficiencies in South Africa’s state-owned (2017) 28.2 SLJ 424. companies: A critical reflection’ (2018) January PER. Criminal law Environmental rights Bellengère, A ‘“We’ll teach you a lesson”: Bilchitz, D ‘Exploring the relationship Court administration The role of the SCA as educator and between the environmental right in the Rabkin, F ‘Court records a new tool for disciplinarian – a note on S v Mashinini South African Constitution and protec- accountability’ (2017) December Advo- 2012 (1) SACR 604 (SCA) and S v MM tion for the interests of animals’ (2017) cate 57. 2012 (2) SACR 18 (SCA) with reference 134.4 SALJ 740.

DE REBUS – MARCH 2018 - 44 - Family law Amechi, EP ‘Whose knowledge is it any- the International Law Commission in its way? Traditional healers, benefit-sharing 68th session’ (2016) SAYIL 165. Bonthuys, E ‘Has the time come to abol- agreements and the communalism of ish or adapt the husband’s common-law traditional knowledge of the medicinal International trade law right to his wife’s domestic services?’ uses of plants in South Africa’ (2017) Oluyeju, O and Mafu, M ‘The African (2017) 28.2 SLJ 336. 134.4 SALJ 847. Growth and Opportunity Act: A poi- Carnelley, M ‘The impact of the aboli- Du Bois, M ‘The appropriate scope of soned chalice handed to South Africa?’ tion of the third party delictual claim for property rights in registered designs’ (2016) SAYIL 30. adultery by the Constitutional Court in (2017) 5.1 IPLJ 34. De v RH (CCT 182/14) [2015] ZACC 18’ Hobololo, V ‘A critical analysis on the Judicial officers (2016) 30.1 SJ 1. right of university technology transfer Diedericks, L ‘The employment status Epstein, CA and Zaal, N ‘End of the road offices to develop intellectual property of magistrates in South Africa and the for breach of promise claims? Cloete v policies: Reflections on the IPR Act’ concept of judicial independence’ (2017) Maritz 2013 (5) SA 448 (WCC) and Cloete (2016) 30.2 SJ 13. December PER. v Maritz SAFLII [2014] ZAWCHC 10’ Job, C ‘The value judgment conundrum: (2016) 30.1 SJ 80. A critical review of recent trade mark ap- Labour law Housing law peal decisions’ (2017) 5.1 IPLJ 143. Calitz, K ‘The precarious employment Mujuzi, JD ‘Private prosecution of copy- position of ministers of religion: Serv- Tshehla, B ‘Eviction in the rental housing right infringements in Kenya: A comment ants of god but not of the church’ (2017) sector in South Africa’ (2016) 30.2 SJ 39. on Albert Gacheru Kiarie t/a Wamaitu 28.2 SLJ 287. Productions v James Maina Munene & 7 Ebrahim, S ‘A critical analysis of the new Human rights others [2016] EKLR 1’ (2017) 5.1 IPLJ 172. equal pay provisions relating to atypical Anifalaje, K ‘Implementation of the right Mupangavanhu, Y ‘The protection of employees in sections 198A – 198D of the to social security in Nigeria’ (2017) 17.2 scent, taste and sound marks in South LRA: Important lessons from the United AHRLJ 413. Africa: Threats and possibilities’ (2017) Kingdom’ (2017) December PER. Agbor, AA ‘Pursuing the right to an effec- 5.1 IPLJ 33. Ebrahim, S ‘Reviewing the suitability of tive remedy for human rights violation(s) Nzomo, V and Rutenberg, I ‘Patenting affirmative action and the inherent re- in Cameroon: The need for legislative re- the un-patentable: Lessons for African quirements of the job as grounds of jus- form’ (2017) December PER. patent systems from a review of pat- tification to equal pay claims in terms of Botha, J ‘Towards a South African free- ent subject matter exclusions in Kenya’ the Employment Equity Act 55 of 1998’ speech model’ (2017) 134.4 SALJ 778. (2017) 5.1 IPLJ 58. (2018) January PER. Botha, J and Govindjee, A ‘Prohibition Okojie, AE and Umoru, GL ‘Counterfeit- Gounden, S and Iyer, D ‘Protecting Em- through confusion: Section 12 of the Pro- ing and piracy: Challenges to effective ployees with HIV/Aids at the Workplace: motion of Equality and Prevention of Un- protection of intellectual property rights A vicarious liability approach’ (2016) fair Discrimination Act 4 of 2000’ (2017) in Nigeria’ (2017) 5.1 IPLJ 115. 30.2 SJ 57. 28.2 SLJ 245. Olubiyi IA and Adam, KI ‘An examina- Pretorius, JL ‘The limitations of defini- De Villiers, I ‘Spatial justice, relationality tion of the adequacy of the regulation of tional reasoning regarding “quotas” and and the right to family life: A discussion collecting societies in Nigeria’ (2017) 5.1 “absolute barriers” in affirmative action of Hattingh v Juta 2013 (3) SA 275 (CC)’ IPLJ 89. jurisprudence as illustrated by Solidarity (2017) 28.2 SLJ 487. Shay, RM ‘Moneyweb (Pty) Ltd v Media 24 v Department of Correctional Services’ Gumboh, E ‘Correct but wrong: A criti- Ltd & Another [2016] 3 All SA 193 (GJ); (2017) 28.2 SLJ 269. cal analysis of recent jurisprudence on 2016 (4) SA 591 (GJ)’ (2017) 5.1 IPLJ 159. the proper test for release pending ap- Wrensch, JJ and Koornhof PGF ‘Vid- Law of contract peal applications in Malawi’ (2017)17.2 eo game modification in South Africa’ McKerrow, RD ‘Agreements to negotiate: AHRLJ 436. (2017) 5.1 IPLJ 75. A contemporary analysis’ (2017) 28.2 SLJ Khalil, AA ‘The direct application of the 308. Constitution by ordinary courts and the International criminal law concept of Shari’a as a source of legisla- Barrie, G ‘A synopsis of the Interna- Law of trusts tion: A review of the Sudanese Supreme tional Law Commission’s final report on Wood-Bodley, MC ‘Variation of the Court’s decision in Sudan Government v the obligation to extradite or prosecute’ terms of a testamentary trust: Hanekom ASK’ (2017) 17.2 AHRLJ 460. (2016) SAYIL 203. v Voight NO’ (2017) 134. 4 SALJ 728. Rukundo, S ‘Criminals or activists? Find- ing the space for hacktivism in Uganda’s International law Legal education legal framework’ (2017) 28.2 SLJ 508. Lubaale, EC ‘The first cultural-property Colgan, D; Domingo, W and Papacos- conviction at the ICC: An analysis of the tantis, H ‘Change to a skills-based LLB Humanitarian law Al Mahdi judgment’ (2016) SAYIL 126. Curriculum: A qualitative study of par- Fowkes, J ‘Armed conflicts and the Lex Lubbe, HJ ‘Democratic Alliance v Min- ticipants in a family law course’ (2017) Specialis debate in Africa: Implications ister of International Relations and Co- December PER. of the emerging women’s and children’s- operation 2017 (3) SA 212 (GP)’ (2016) Duminy SC, W ‘Learnings and writing rights regimes’ (2016) SAYIL 73. SAYIL 242. observations on written advocacy. From Swanepoel, CF ‘Is a permanent African Aristotle and Horace to Robert Louis Insurance law Criminal Court likely soon considering Stevenson up to “Quack this way: David Stander, AL and Kloppers, HJ ‘Verand- the continent’s post-colonial response Foster Wallace & Bryan A. Garner talk ering en verhoging van die risiko tydens to international criminal justice?’ (2016) language and writing”’ (2017) December die termyn van die versekeringskontrak’ 30.1 SJ 15. Advocate 43. (2017) 28.2 SLJ 466. Swart, M and Ramsden, C ‘A shrewd Glasgow QC, E ‘South African advocacy awakening: The mobilisation of South training: An example to the rest of the Intellectual property African civil society in the Al Bashir mat- world’ (2017) December Advocate 34. Alberts, W ‘The promotional use of a ter’ (2016) SAYIL 215. Meiring J ‘Advocacy training: There’s trade mark: Its potential to have signifi- Tladi, D ‘Progressively developing and method in the madness’ (2017) Decem- cance’ (2017) 5.1 IPLJ 1. codifying international law: The work of ber Advocate 30.

DE REBUS – MARCH 2018 - 45 - RECENT ARTICLES AND RESEARCH

Legal profession class-action mechanism: Determining Reproductive rights damages in single-accident mass per- Williams, M ‘Lawyers to take up the van- Savage-Oyekunle, OA and Nienaber, A sonal injury class actions’ (2017) 134.4 guard against fake news?’ (2017) Decem- ‘Adolescents’ access to emergency con- SALJ 821. ber Advocate 52. traception in Africa: An empty promise?’ Matlala, DM ‘Problems of Serious Injury (2017) 17.2 AHRLJ 475. Assessment’ (2016) 30.1 SJ 44. Legal research Kangaude, GD ‘Adolescent sex and “de- MacKenzie, P ‘If only geese still laid Prisons law filement” in Malawi law and society’ golden eggs (article on Saflii)’ (2017) De- (2017) 17.2 AHRLJ 527. Peté, SA ‘A disgrace to the master race: cember Advocate 53. Ofuani, AI ‘Protecting adolescent girls Colonial discourse surrounding the in- MacKenzie, P ‘Treasure trove many take with intellectual disabilities from invol- carceration of “European” prisoners for granted Saflii, the friendly local law untary sterilisation in Nigeria: Lessons within the Colony of Natal towards the library has been around for fifteen years’ from the Convention on the Rights of end of the nineteenth and beginning of (2017) December Advocate 55. Persons with Disabilities’ (2017) 17.2 the twentieth centuries’ (2017) Decem- AHRLJ 550. Maritime law ber PER. Vrancken, P ‘Africa’s Integrated Mari- Property law Tax law time Strategy and the law of the sea’ Cramer, R ‘The abandonment of land- Du Plessis, I ‘Can a trust be regarded as (2016) SAYIL 97. ownership in South African and Swiss a person for purposes of a double-taxa- law’ (2017) 134.4 SALJ 870. tion agreement to which South Africa is Marriage law Ntsoane, LS ‘The registration of special a party?’ (2017) 134.4 SALJ 907. Smith, BS ‘Perspectives on the juridical notarial bonds under the Security by basis for taking (the value of) trust as- Means of Movable Property Act and the sets of alter-ego trusts into account for publicity principle: Lessons from devel- Meryl Federl BA HDip Lib (Wits) is the purposes of accrual claims at di- opments in Belgium’ (2018) 21 January an archivist at the Johannesburg vorce: REM v VM’ (2017) 134.4 SALJ 715. PER. Society of Advocates Library. E- Viljoen, SM ‘Substantive adjudication mail: [email protected] Personal injury law of the decision to expropriate property’ q Broodryk, T ‘Individual issues and the (2017) 28.2 SLJ 444.

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C000-18_LN_prize_ad_120x175_2018.indd 1 2018/02/21 14:38 DE REBUS – MARCH 2018 - 46 - OPINION – JURISPRUDENCE

By Appointment of sitting judges to Ndivhuwo Ishmel Moleya preside over commissions of inquiry: A lawful but undesirable practice

n 9 January 2018, former officers can no doubt preside over com- side over commissions of inquiry. When President Jacob Zuma an- missions of inquiry without infringing a sitting judge is appointed to preside nounced that he had decided the separation of powers contemplated over a commission of inquiry, the ap- to appoint a commission of by our Constitution.’ The court, however, pointee does not necessarily cease to be inquiry to investigate the al- was careful to point out that ‘[i]t is un- a judicial officer. Instead, the appointed Olegations of state capture contained in desirable … to lay down rigid tests for judge continues to carry out normal du- the former Public Protector, Thuli Ma- determining whether or not the perfor- ties as a member of the court unless donsela’s report entitled ‘State of Cap- mance of a particular function by a judge given special leave. The judge will there- ture’. In that report, the Public Protec- is or is not incompatible with the judicial fore have to perform both normal duties tor proposed a remedial action, which office.’ as a judicial officer and as a member of partly required the president to appoint The appointment of serving judges to the commission. It can hardly be gain- a commission of inquiry (the commis- preside over commissions of inquiry in said that such a situation would affect sion) ‘headed by a judge’ selected by the South Africa (SA) is not unprecedented. the judge’s normal duties as a judicial Chief Justice. It is now common cause In the Commission on the Ellis Park Dis- officer. that Chief Justice, Mogoeng Mogoeng, aster, the Hefer Commission, the Kham- In the Heath case, at paras 29-30, the selected Deputy Chief Justice of the Con- pepe Commission and the Seriti Com- CC observed that the fact that the work stitutional Court (CC), Raymond Zondo, mission, serving judges were appointed. that a judge is required to perform ‘will to preside over the commission. The However, the appropriateness of the occupy the judge to such an extent that appointment should be welcomed as practice has received minimal attention. he or she is no longer able to perform it will bring integrity into the works of The appropriateness of the practice was, his or her normal judicial functions’ the commission. However, it brings into however, called into question in the case weighs against appointment to another sharp focus the question of the appro- of City of Cape Town v Premier, Western post. Commissions of inquiry usually priateness of appointing serving judges Cape, and Others 2008 (6) SA 345 (C), take longer to complete their mandate. to preside over commissions of inquiry. at para 167, where a serving judge was Therefore, if a judge is granted special This article explores this question. embroiled in a dispute between political leave to serve as a member of a commis- opponents. sion, the demands of the judicial office The lawfulness of may be neglected. appointing sitting judges Should sitting judges In Heath, at para 45, the CC found that preside over commissions the ‘indefinite nature of the appoint- to preside over ment … preclude[d] the head of the unit commissions of inquiry of inquiry? from performing his judicial functions.’ Our law does not prohibit the appoint- The fact that it is lawful to appoint serv- More so, at para 43, it pointed out that ment of judges, serving or retired, from ing judges to preside over commissions ‘[w]hilst the length of the appointment is presiding over commissions of inquiry. of inquiry does not necessarily mean the not necessarily decisive in the determi- Section 84(2)(f) of the Constitution sim- practice is at all appropriate or desir- nation of the question whether the func- ply confers the president the power to able. This is indeed implied in the CC’s tions a judge is expected to perform are appoint a commission of inquiry. The observations in the Heath case where it incompatible with the judicial office, it provision does not specify or prescribe pointed out that in ‘appropriate circum- is … a relevant factor.’ Participation of who is eligible for appointment as a mem- stances judicial officers can no doubt a judge in commission of inquiry that is ber of a commission of inquiry. Similar- preside over commissions of inquiry.’ likely to take long may, therefore, ‘impair ly, the Commissions Act 8 of 1947 (the The statement implies that there may be his/her ability to carry out judicial func- Act) does not deal with this aspect. The certain circumstances where it would be tions’ (City of Cape Town at para 182). Act merely empowers the president to inappropriate to appoint a serving judge The observations of the Indian Su- make proclamations and/or regulations to preside over a commission of inquiry. preme Court in T. Fenn Walter & Ors vs regarding the appointment of a commis- Indeed, commissions of inquiry are Union Of India & Ors Appeal (civil) 3993 sion of inquiry. It follows therefore, that sometimes mandated to investigate so- of 2002 are apposite in this regard. In the president is at liberty to appoint any cially and politically controversial issues that case, the court stated that the ‘ap- competent candidate to serve as a mem- of national interest. The public does not pointment of Judges to head or chair ber of a commission of inquiry. It has always welcome their findings. In some a commission of inquiry or to perform become a common practice to appoint cases, their findings are challenged in other non-judicial work would create retired judges, senior counsel or serving the courts. Their findings may also form [an] unnecessary burden on the Judges judges to preside over commissions of the basis of a civil or criminal action. The and it would affect the administration of inquiry. The appointment of judges as terms of reference of a commission of in- justice.’ The court further observed that members of a commission of inquiry was quiry may require the commission to in- the work of commissions take a con- found to be constitutionally permissible vestigate broad, complex and politically siderable amount of time and that if a in the case of South African Association sensitive issues, which require much ‘sitting Judge is appointed, considerable of Personal Injury Lawyers v Heath and time and undivided attention of the com- time is lost and the Judge would not be Others 2001 (1) SA 883 (CC). In the Heath missioners. in a position to attend to his regular ju- case, at para 34, the CC pointed out that There are several reasons that militate dicial work.’ These observations cannot ‘[i]n appropriate circumstances judicial against appointing sitting judges to pre- be gainsaid.

DE REBUS – MARCH 2018 - 47 - OPINION – JURISPRUDENCE

The controversy that surrounds the quiry unless the Chief Justice has first In my view, the proper approach is works of commissions of inquiry also satisfied himself that the nature of the espoused in the City of Cape Town case militate against appointing sitting judg- intended public inquiry has no politi- where the court stated that ‘active judg- es as commissioners. Most of the inves- cal implications.’ The recommendations es should, as a matter of principle, not tigations involve politically and socially were based on the following reasons: chair commissions of inquiry’ (para 187). controversial issues. In a compilation • Judges who serve in politically mo- This approach obviates the need to grap- dealing with commissions of inquiry in tivated inquiries run the risk of being ple with the question whether it is ‘“ap- Canada, Roderick Alexander Macdonald dragged into politics and having their propriate” for a judge to involve him or pointed out that although judges bring reputation for impartiality ruined. herself, in the particular commission.’ ‘knowledge, experience and impartial- • The tendency to sue members of com- ity to the inquiry process’, ‘involving missions for things done as commission- Conclusion a sitting judge in what may turn into ers exposes judges to the risk of being Although not unlawful, the practice of a partisan political issue can threaten condemned to personally pay costs of appointing serving judges to preside the independence of the judiciary’ and the suit. over commissions of inquiry should ‘[t]he reputation of the particular judge.’ • The appointment of serving judges be avoided. If needs be, serving judges (‘An Analysis of the Forms and Functions keeps them away from their substantive should only be appointed where it is of Independent Commissions of Inquiry duties for inordinately long periods to crystal clear that the independence of (Royal Commission) in Canada’ at p 13) the detriment of litigants. the judiciary and reputation of impar- (www.mcgill.ca, accessed 16-1-2018). • Any shortcomings in the reports of tiality of the particular judge will not In Heath, at paras 29-30, the CC ob- commissions may follow the judge to be threatened, and where there are no served that where, among other factors, the bench since there is no system of ap- other suitable candidates. There are the non-judicial work that a judge is peal through which the judge could be clearly more plausible reasons to dis- required to perform ‘creates the risk of vindicated. qualify serving judges from presiding judicial entanglement in matters of po- The controversial nature of issues in- over commissions of inquiry than there litical controversy’, the judge should de- vestigated by commissions of inquiry is are for appointing them. It is so that cline appointment. It is so, because such not always readily discernible. A seem- serving judges clothe the works of com- controversies may muddle the integrity ingly non-controversial issue may, on missions with integrity, which is neces- of the judge, and ultimately, the inde- investigation, turn out to be controver- sary to maintain public confidence in the pendence of the court in which the judge sial. In the same way, an issue, which process. More so, that they possess the serves. The Goldenberg Commission of is thought to be suitable for a serving necessary experience and skills required Inquiry in Kenya is a classic example of judge to investigate, may turn out to be for conducting a commission of inquiry. why it is not desirable to appoint serv- a threat to judicial independence and the However, less cannot be said of retired ing judges to preside over commissions reputation of impartiality of that particu- judges. They too possess these qualities. of inquiry. The report of that commis- lar judge. This simply underscores the Moreover, they have more time at their sion was a subject of controversy and fact that the problems that come with disposal than sitting judges. multifarious litigation. It resulted in an appointing serving judges to preside awkward situation where a report com- over commissions of inquiry cannot be piled by a member of a superior court resolved by simply ‘deciding in any par- was impugned in the lower courts. All ticular case whether it is “appropriate” Ndivhuwo Ishmel Moleya LLB this led the Commission to recommend for a judge to involve him or herself, in (Univen) is a candidate attorney at that ‘no sitting judge should be appoint- the particular commission’ (City of Cape Adams & Adams in Pretoria. ed to head or participate in a public in- Town at para 184). q

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