As 2013 draws to an end most legal practitioners will be questioning if, in fact, the Legal Practice Bill will be enacted before the country's general elections in April 2014. As previously indicated by the Justice Portfolio Committee, if the Bill is not enacted before a new parliament is elected, all the work that has been done on the Bill will have to be redone. The Portfolio Committee has been earnestly debating the Bill and by mid-October had produced draft 5 of the Bill, with amendments, by the time this issue of De Rebus went to print.
The Supreme Court of Appeal has overturned a judgment by the North Gauteng High Court that found the Commission for Conciliation, Mediation, and Arbitration's (CCMA's) rule that limits legal representation to be unconstitutional.
McLarens Attorneys held a seminar on the rights of unmarried fathers in September 2013. The seminar was co-hosted by candidate attorney Nuno Palmeira and law firm founder Ian McLaren and was held at its offices in Randburg.
The Lawyers against Abuse (LvA) held its second annual art auction in September. The artworks and photographs that were auctioned off were donated by various collectors, as well as established and emerging artists.
When the time comes to close a file, there is one more thing to do. You have fulfilled your mandate, the litigation has run its course, the transaction has been concluded, the transfer registered. You have been paid for your services. What else remains?
When the close corporation structure was phased out, the reason given by the Department of Trade and Industry was that it was 'necessary to move away from the largely artificial separation between the different business forms [closed corporations and companies], to recognise only one formal business vehicle and to provide for a simple, easy company formation process' ('South African company law for the 21st century - guidelines for corporate law reform' GenN 1183 GG 26493/23-6-2004). The extent to which the new Companies Act 71 of 2008 provides for a cheaper, simpler incorporation process for small companies is, however, debatable. Those looking for alternatives may instead consider a trading trust. This was referred to by the court in Nieuwoudt and Another NNO v Vrystaat Mielies (Edms) Bpk 2004 (3) SA 486 (SCA) as 'a newer type of trust' that has comparatively recently come into our law with the rise in popularity of the trust as an estate planning tool.
Child relocation disputes are a reality that parents often encounter after divorce. It generally refers to a change in the place of residence or change of domicile of the child. The courts have recognised the need for children and parents to continue relationships with and have support from both parents following a divorce. Numerous support systems and shared parenting arrangements are applied by the courts to assist with this.
Administrative law is the branch of public law that regulates the activities of bodies that exercise public powers and perform public functions (C Hoexter Administrative Law in South Africa (Cape Town: Juta 2007) at 2). Due to its nature and scope, administrative law permeates a number of branches of the law and the law relating to the protection of registered intellectual property is no exception. Administrative action can be questioned on the basis of either an administrative appeal or by judicial review. An appeal is indicated when the reasoning for the decision and the merits of the case are under consideration, while a review considers whether the decision was arrived at in a rational fashion. However, it is well recognised that the boundary between appeal and review is often indistinct, particularly with respect to judicial review where the focus of the review often falls on the decision itself rather than the process by which the decision was made (op cit 106).
A litigant in both civil and criminal law proceedings has a right to cross-examine any witness called by the other side who has been duly sworn.
However, it often happens that trials are protracted and postponed for long periods of time. In some reported cases the witness has died by the time the trial is resumed. Is the evidence of the witness in respect of whom cross-examination has not been completed admissible?
Spotlight on applications for leave to appeal - why no reasons by highest courts?
The small claims court, magistrates' courts, Labour Court and the High Court of South Africa are required by statute to provide motivated reasons for findings and judgments handed down by them.
There are no such obligations on the Supreme Court of Appeal or the Constitutional Court. These courts accordingly do not, as a rule, provide reasons for their decisions in response to applications for leave to appeal.
This situation is unfortunate. The provision of reasons by a judicial officer, inter alia, explains to the parties and to the public at large who have an interest in courts being open and transparent, why the decisions in a case were taken. It is a discipline that curbs arbitrary judicial decisions. It is also contrary to the provisions of s 1 of the Constitution, which requires judges not to act arbitrarily and to be accountable. The manner in which the courts ordinarily account for their decisions is by furnishing reasons.
It is accordingly suggested that the relevant statutes should also make it obligatory for the Constitutional Court and the Supreme Court of Appeal to provide reasons for a decision regarding an application for leave to appeal to these courts.
The conclusion and dissolution of a customary marriage is a process currently regulated by the Recognition of Customary Marriages Act 120 of 1998 (RCMA). This Act, in the words of Moseneke DCJ in Gumede v President of the Republic of South Africa and Others 2009 (3) SA 152 (CC) at para 16 'represents a belated but welcome and ambitious legislative effort to remedy the historical humiliation and exclusion meted out to spouses in marriages which were entered into in accordance with the law and culture of indigenous African people of this country. ... [P]ast courts and legislation accorded marriages under indigenous law no more than a scant recognition under the lowly rubric of customary "unions" '.
Non-custodial sentencing (NCS) has been on the South African statute books for decades. In ch 28, s 276, the Criminal Procedure Act 51 of 1977 permits alternatives to imprisonment in the form of correctional supervision and fines and, in s 297, in the form of suspended or postponed sentences with conditions.
The scenario should be all too familiar: A client purchased a house and it transpires that the foundations are riddled with structural defects caused by negligent building. In the deed of sale is the usual voetstoots clause, barring any recourse on the basis of latent defects, and, being a private sale, the Consumer Protection Act 68 of 2008 is of no refuge. It would seem that the only avenue for redress is attempting to overcome the voetstoots clause by showing deliberate concealment of the defects, a formidable hurdle. The client will no doubt ask whether the architect, structural engineer, or contractor involved in the construction may be sued for negligence. In terms of the common law, this possibility is instinctively rejected out of hand.
One of the cornerstones of the law of succession in South Africa is the principle of freedom of testation. One of the ideas behind it is that the testator wishes to distribute the assets he or she collected in life to his or her surviving family members in order to care for them and ensure that they are provided for after his or her death. But freedom of testation goes beyond that - these assets can be distributed to whosoever the testator wishes.