Letters to the editor – November 2018

November 1st, 2018
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PO Box 36626, Menlo Park 0102

Docex 82, Pretoria

E-mail: derebus@derebus.org.za

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.

Responses to grump attorney

I can only agree with the opinion expressed by your ‘grumpy’ correspondent in ‘Ramblings of a grumpy attorney’ (2018 (July) DR 52). Having been in practice for more than 60 years, the ‘daily grind’ gets progressively worse. Issuing a summons in nearly all cases has become a mission to the extent that it is a task that one would preferably not undertake. Like ‘ole grumpy’ I recently endeavoured to issue a summons in the Bellville Magistrate’s Court, which took four months of argument with the court official and finally to succeed I needed to instruct a local attorney to make representations to the chief official in charge before the summons was issued. Much of the delay was caused in this instance by the relevant clerk being unavailable due to absence from work for one reason or another.

Another area of concern relates to the physical location of the Sheriff in Cape Town. Until late last year the four Cape Town Sheriffs – north/south/east and west, were all housed in the Mandatum Building in Barrack Street – close to the magistrate’s court and about a kilometre from the Western Cape Division of the High Court. But, things have changed and much for the worse – Cape Town Sheriff North is now in Killarney Gardens; Cape Town Sheriff East is in Montague Gardens; Cape Town Sheriff West is in Elsies River; and Cape Town Sheriff South is in Wynberg – not one of them being within the 15 kilometre range applicable to practitioners and the courthouse. The immediate effect of this is that whenever an element of urgency relates to a matter, one is compelled to incur additional costs by using a courier or other extraordinary forms of delivery.

In the ‘olden days’ before the advent of sophisticated office gadgets and machinery it was possible to achieve a far greater element of efficiency and speed.

 

Another grumpy old sod, Cape Town

 

This article made me feel like it was written by my own pen or personal computer (‘Ramblings of a grumpy attorney’ (2018 (July) DR 52)).

I can completely relate to my grumpy colleague.

The Financial Intelligence Centre Act 38 of 2001 (FICA) is one of the biggest reasons for me being grumpy.

I whole heartedly confirm that I have not read of one case where FICA successfully prevented money laundering or that it stopped hackers from hacking an e-mail address to amend banking details, to fraudulently receive money into a bank account that clearly could not have been FICA compliant.

Our local municipality issues proof of residence over the counter at R 26 per request. You only need to bring your identification document and orally confirm a physical address. There is no physical inspection to confirm the address.

How will FICA prevent the opening of a bank account with this proof of residence?

These systems are failing us.

Piet Van Dyk, attorney, Mbombela

 

The Hoërskool Overvaal saga

During the first weeks of January, the Gauteng Division of the High Court in Pretoria was approached by the Governing Body of an Afrikaans-medium school, Hoërskool Overvaal, after the school was being compelled by the Gauteng Department of Education to admit 55 English-speaking learners. The school had indicated that it lacked the capacity, infrastructure and staff to accommodate the learners, and accordingly refused to carry out the department’s instruction (see law reports ‘Administrative law’ 2018 (July) DR 38 for the report).

Prinsloo J in considering the different contentions raised, determined the department’s attempt at effectively forcing an Afrikaans-medium school to become double-medium to be futile. The judge noted that the school did not have sufficient capacity to admit these learners, and that it was clear that the learners should rather be accommodated at other schools in the vicinity that had the requisite capacity, infrastructure and staff available. The court expressed that the manner in which the department and its various incumbents disregarded principles and statutes enshrined in South African law was unsatisfactory.

Following the judgment, the department turned to the Constitutional Court (CC) in Member of the Executive Council: Department of Education, Gauteng and Others v Government Body of Hoërskool Overvaal and Another (CC) (unreported case no CCT 28/18, 25-7-2018), where it firstly brought an application for condonation and, secondly, leave to appeal the High Court’s decision. It also applied for leave to appeal the matter in the High Court itself should the CC refuse to consider the application. This resulted in a rather remarkable turn of events as the CC granted the application for condonation, thereby indicating its willingness to consider the matter. Subsequently, the CC considered the application for leave to appeal based on the merits of the case. It determined that the department failed to consider schools in the same area that complied with relevant concerns, and refused the application for leave to appeal, which resulted in nullifying any further attempts at appeal.

Lessons for schools

This matter throws into sharp relief the precarious balance existing between minority groups and organs of state. In the present situation, a school was expected to comply with certain demands, without having the necessary institutional capacities in place, in order for apparent political ambitions under transformative pretences, to prevail. The cost of such tactics would result in the provision of inadequate standards of education in all its forms. The question, which can now be posed is: What can schools and governing bodies do to avoid expensive litigious opportunism?

  • Ensure that the school’s administrative affairs are in order: Schools should ensure that their capacity determinations and related administrative affairs are in order and regularly updated. Regulations are to be complied with to the letter.
  • Ensure that policies are in place: Schools should ensure that they have the various requisite admissions policies in place, in line with general best practice. These policies should be clear, easy to understand and fully compliant with the requirements of the relevant provincial education department.
  • Keep proper records: Schools are urged to keep proper and detailed records of all correspondence and other administrative interactions with the Department of Education. This will strengthen their position and provide protection from seemingly arbitrary administrative abuses.
  • See to it that the community’s needs are met: Schools are important building blocks in communities and play a vital role in attaining a true constitutional dispensation. Through the adoption of their language policy, therefore, schools must ensure that they attend to the language needs and preferences of the local community. Language policies that seek to maintain historical or cultural preferences are ethically and morally unjustifiable if they are out of kilter with the surrounding community.

Adriaan Knoetze, Federation of Governing Bodies of South African Schools Legal Officer, Bloemfontein

This article was first published in De Rebus in 2018 (Nov) DR 4.

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