August 2012

From My Window - August 2012 From My Window August 2012

One swallow doesn't make a summer. What a pity, but at least it's enormously satisfying to be able to wallow gloriously in South Africa's warm winter sun while characters such as Shane Warne (famous as an enemy) are forced to eat very humble pie through the course of the first cricket test match between England and South Africa for some years. Warne avoided saying too much by resorting to the lazy man's messenger: the tweet. In former English wicketkeeper Alec Stewart's opinion, England's batsmen enjoyed a slight edge; Warne reckoned England would win two of the three match series.

Editor's Note - August 2012 Editor's Note August 2012

When South Africa became a democracy there were, for me, three essential elements that would now be available to citizens regardless of creed, colour or gender. In no particular order – an independent legal system on which everyone could count to be fair; the possibility to be the very best in whatever field was selected and education for all – without which there is nothing else.

The Legal Practice Bill The Law August 2012

WHEN lawyers and ordinary members of the public try to get to grips with the proposed Legal Practice Bill, on what basis should they decide whether to support it or not?

Changing the rules The Law August 2012

ATTORNEYS with high court appearance rights should pay attention to a recent decision of the high court in Durban: it fundamentally changes the rules about the prior certification and registration needed when an attorney wants to appear or work in another high court division.

Measures to transform state legal services The Law August 2012

The recently released Policy Framework on the Transformation of State Legal Services is another milestone in the advancement of the transformation goals mandated by the country's Constitution. The policy framework forms part of legislative and other measures undertaken by the Department to advance the transformation of the entire judicial system. These measures include the Constitution Seventeenth Amendment Bill and the Superior Courts Bill currently being considered by Parliament and a Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State released by the Minister in February.

Independence of the NPA – The devil in the detail The Law August 2012

Part 2

The Supreme Court of Appeal, in Democratic Alliance v President of South Africa & Others [2011] ZASCA 241, deliberately ignored the difference in wording throughout the Chapters, which is very specific and designed to achieve a deliberate purpose. In doing so, it committed a fallacy by using perfectly valid premisesto arrive at a somewhat incoherent, incongruent and thus invalid conclusion. This is that the silence of Constitution means the courts, the executive and the legislature must ignore the letter of the Constitution and rather paint all state institutions, established in terms of the Constitution, with the same “independence" brush because the general theme selectively supports the moral inclination that independence must be read in.

Lessons from Noseweek The Law August 2012

Though I'm a practising attorney, I spent some five years with Noseweek, both as an investigative reporter and as a managing editor. For the most part it was a rewarding experience. But it was profoundly depressing to see just how bad the public's perception of attorneys really is. And how attorneys are either totally oblivious to this fact, or simply don't care.

Bringing Basel III to South Africa Banking Law August 2012

Basel III is a global regulatory standard for the banking industry agreed upon by the members of the Basel Committee on Banking Supervision (BCBS).

‘Delivered’ critical in debt collection Financial Law August 2012

In 2010 we wrote a series of articles regarding the unforeseen impact that the introduction and interpretation of the National Credit Act, 2005 was having on debt collection for credit providers. The Constitutional Court, in Sebola v Standard Bank of South Africa Limited and another CCT98/11 and provincial high courts recently confirmed the requirements that the Act was imposing and approved the courts when credit providers were approaching them in order to enforce the agreements in terms of which they had extended credit to consumers. The notice must be sent by registered post to the domicillium address or actual proven address of the consumer and delivered to the post office in whose area the address is situated.

Stimulating a dysfunctional co-operatives sector Financial Law August 2012

The Co-operatives Amendment Bill, 2012 seeks to drive the development of co-operatives in South Africa.

Needs to do some homework Competition Law August 2012

The legal fraternity, and particularly the competition law sphere, has been eagerly awaiting the Constitutional Court's ruling in the cases of Competition Commission and Yara South Africa (Pty) Ltd, Omnia Fertilizer Ltd and Sasol Chemical Industries Ltd - CCT81/11 [2012] ZACC 14 (Yara) and Competition Commission and Loungefoam (Pty) Ltd, Gommagomma (Pty) Ltd, Vitafoam (Pty) Ltd, Steinhoff Africa Holdings (Pty) Ltd, Steinhoff International Holdings (Pty) Ltd, Feltex Holdings (Pty) Ltd and KAP International Holdings (Pty) Ltd - CCT 90/11 [2012] ZACC 15(Loungefoam).

Doing pro bono right: the nuts and bolts of managing the attorney / pro bono client relationship Probono August 2012

Client management is a complex and delicate task and managing a pro bono client is no exception. In addition to the usual complexities of client management, the relationship with a pro bono client comes with its own unique challenges. Because the standard of service offered by attorneys should not differ between fee-paying and pro bono clients, it is important to manage the pro bono section of your practice effectively. This can be achieved by adopting a pro bono policy and implementing appropriate supporting procedures.

Mouritzen and the new era of derivative actions Company Law August 2012

A derivative action is a court action initiated by a person (for example a shareholder or director) on behalf of a company in order to protect the company's legal interests. It is referred to as a derivative action because the person who initiates it derives the right of action in law from the company whose legal interests is sought to be protected.

Getting clever with business rescue Company Law August 2012

Judging from the numerous court hearings on the topic, business rescue is fast becoming part and parcel of restructuring companies in financial distress. It is an option for financially distressed companies to file for the supervision of the company's business and affairs by a business rescue practitioner pending the voting in of a business restructuring plan in terms of Chapter 6 of the Companies Act, (2008).

Individual director due diligence Company Law August 2012

Company law dictates that individual directors have fiduciary duties to act in the best interest of the company and a duty of care skill and diligence in the performance of their duties as directors. To what other criteria are individual directors required to adhere to demonstrate that they have performed against their duties as director?