2016 marks the year De Rebus achieves a tremendous milestone of 60 years in existence. Initially named De Rebus Procuratoriis (about the affairs of attorneys), the journal was first distributed to members of the then Law Society of the Transvaal in September 1956. The journal was distributed nationally in 1968 with the word 'procuratoriis' having been dropped from its masthead along the way.
A practical approach to criminal law in Botswana By William Molebatsi
Expert Evidence in Clinical Negligence: A practitioner's guide By Patrick van den Heever and Natalie Lawrenson
Administrative Justice in South Africa: An introduction By Geo Quinot (ed)
CSLAR Property law under scrutiny By Susan Scott and Jeannie van Wyk
A special ceremonial session of the Constitutional Court was held on 29 January to mark the retirement of Justice Johann van der Westhuizen. The full Bench was present, including retired judges from the Constitutional Court, as well as a number of dignitaries and government officials.
South Africa has come out tops at the 2016 International Moot Court competition at The Hague in the Netherlands. This is the third time that this competition has taken place and is held every second year. This year, the competition took place from 18 to 22 January. The topic focused on the issue of crimes against humanity during war time. Twelve countries participated in the competition, namely, Argentina, Bulgaria, Germany, Mongolia, Netherlands, Poland, Romania, Russia, St Martens, the United States of America (US), Venezuela and South Africa. Contestants were given an opportunity to argue using international criminal law and treaties that are relevant to the International Criminal Court.
The Law Society of South Africa (LSSA) expressed its strong opposition to the Debt Collectors Amendment Bill, 2016, in submissions made to the Justice Department at the end of January. The LSSA Co-chairpersons were also seeking a hearing with Justice Minister Michael Masutha to discuss the Bill.
On 23 January, at its fourth meeting since the launch of the National Forum on the Legal Profession (NF) in March 2015, two of the NF members - Martha Mbhele and Willem van der Linde - were replaced by their nominating constituents as they had both been appointed to the Bench. The Law Society of South Africa (LSSA) nominated its former Co-chairperson, Kathleen Matolo-Dlepu from the Black Lawyers Association to replace Ms Mbhele, and the General Council of the Bar replaced Mr Van der Linde with Geoff Budlender SC.
The Southern African Development Community Lawyers' Association (SADC LA) annual conference and general meeting (ACGM) is the premier event for lawyers in the 15-member Southern African Development Community (SADC) region. This year, the Law Society of South Africa (LSSA) is proud to co-host the conference with the SADC LA at the Cape Town International Convention Centre in Cape Town from 17 to 19 August. The last time this conference was held in South Africa was in the year 2000.
In the matter between R du Plessis Barry v Clearwater Estates NPC and Others (GP) (unreported case no 82306/2014, 13-11-2015) (Van der Westhuizen, AJ), it was decided that the provisions of Articles (contained in the Memorandum of Articles) stipulating, inter alia, (1) that a proxy must be deposited at the office of the company not less than 48 hours before the time appointed for holding of a meeting and (2) if not deposited timeously, it shall not be treated as valid. It 'would result in an internal conflict within section 58 of the Act' and '... are inconsistent with the provisions of the Act and in particular with provisions of section 58(1) of the Act. Consequently the provisions of the articles ... of the first respondent's Memorandum of Incorporation are void to that extent' (see para 30 and 31).
In an adversarial system such as ours, the administration of justice relies heavily on the acumen and knowledge of legal representatives. This insight is dependent on many factors including an understanding of the different forms of evidential material, which may include scientific evidence, involved in the case. Although the use of expert witnesses compensates for the lack of forensic knowledge on the part of practitioners,there is no doubt that practitioners still need to be knowledgeable about science for various reasons. A practitioner can only fully engage with forensic evidence presented by experts if he or she has an understanding of how to engage with such evidence. It is only then that a practitioner would be able to apply the test for reliability, credibility and even admissibility, in some cases.
In today's world, technology is changing so fast that attorneys can never catch up and from a cost-benefit point of view, perhaps they should not even try. For the tech savvy attorneys, there is usually a strong temptation to have the latest and greatest tools in their practice, but for all intents and purposes, one should not get caught up in the hype to the extent that it diminishes ones productivity and ultimately ones businesses. Just as the saying goes, 'guns do not kill people...', the use of a mobile devices in a trial will not kill a court case. However, what it certainly can do is assist an attorney with presentation of evidence in a more professional and seamless manner than would have been possible, say ten years ago. One, however, should always be cognisant of the requirements for admissibility of electronic evidence as defined in the Electronic Communications and Transactions Act 25 of 2002 (ECT Act). Section 11(1) of the ECT Act recognises information in electronic form and not simply computer printouts, as done by most of its predecessors.
The Rental Housing Act 50 of 1999 (the Act) came into force on 1 August 2000. This Act regulates the relationship between landlords and tenants and it provides for dispute resolution by the Rental Housing Tribunal. This Act has often been criticised for its shortcomings especially pertaining to enforcement (SI Mohamed 'Enforcement of Rental Housing Tribunal Orders' June 2008 Property Law Digest 3; PN Stoop 'The law of lease' 2008 Annual Survey of South African Law 891; SI Mohamed 'RHTs "Exclusive" Jurisdiction over Unfair Practice' June 2012 Property Law Digest 9). However, the Constitutional Court in Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC) stressed the importance of the Act and the Rental Housing Tribunal. The shortcomings of the Act have recently been addressed by enactment of the Rental Housing Amendment Act 35 of 2014 (Amendment Act), which will come into operation on a date to be proclaimed. Only a few landlords, tenants or practitioners have taken notice of the Amendment Act despite it having a substantial impact on the rental industry, and landlords and tenants. Some of the major amendments are pointed out in the overview below.
In terms of s 132(1)(a)(i) of the Companies Act 71 of 2008 (the Act), business rescue proceedings commence when a company files a resolution to place itself under supervision in terms of s 129(3) of the Act. But what happens if a creditor has already served an application for the liquidation of the company? Section 129(2)(a) of the Act determines that a resolution contemplated in s 129(1) of the Act, may not be adopted if liquidation proceedings have been initiated by or against the company.
Litigious matters of large companies often involve complex legal issues, which may also result in complex insurance issues. The tripartite relationship between insurer, insured and legal representative originates from the standard liability insurance policy, which typically provides protection against damages arising from a claim against the insured company and the legal costs for defending such a claim. Unless the claim against the insured company clearly shows no grounds for insurance coverage, the insurer will generally defend the claim on behalf of the insured. For these defences the insurer will normally appoint a defence attorney (from their panel of attorneys) with whom they have an ongoing relationship, while the appointed attorney and the insured company will only have limited interaction for the duration of the matter.
Does a business rescue practitioner (BRP) become functus officio after business rescue proceedings end in terms of s 132 (2)(c)(i) of the Companies Act 71 of 2008 (the Act), namely after the business rescue plan that had been proposed had been rejected? This is the question that the court was tasked to answer in the judgment.