Letters to the editor – January/February 2020

February 1st, 2020
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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.

Property Practitioners Act – incentives

In terms of s 66 of the Property Practitioners Act 22 of 2019 published in the Government Gazette (GN1295 GG42746/3-10-2019), a property practitioner ‘may not in any way offer or receive financial or other incentive to, or otherwise influence, a person who at the request of a seller or lessor issues a certificate required by law, based on his or her expert opinion, in respect of –

(a) the condition or defects of electrical wiring;

(b) the presence of vermin;

(c) the presence of water or damp; or

(d) any other relevant matter or condition, which may be provided for in any law.’

A contravention of the above is an offence.

It is interesting that the receipt of financial or other incentive to influence a seller to use a particular conveyancer, is not specifically provided for.

It is well known that conveyancers offer substantial incentives to property practitioners to refer conveyancing to them.

The extent of these incentives must be far more than the incentives offered by electricians and vermin and insect exterminators, or is the reason for the omission in this particular section because such an incentive amounts to the common law criminal offence of bribery and corruption?

Or perhaps that property practitioners do not even influence the seller, they just appoint the source of the incentive without consulting the seller.

When the seller discovers that their matter has been referred to an unknown conveyancer, they are met with a demand for wasted fees.

A third possibility is that this form of bribery and corruption has now been accepted as standard practice.

 

Anville van Wyk BA LLB (Stell) Post Grad Dip Tax (UCT) is a

legal practitioner at van Wyk van Heerden Attorneys in Cape Town.

 

Superannuation – a common law remedy

Thank you to De Rebus and to the authors, Marius van Staden and Stephen Leinberger, for the interesting article on superannuation (‘Superannuation – a common law remedy’ 2019 (Dec) DR 20).

From experience I know that, despite the risks mentioned, clients usually do not want to spend yet more money on dismissing an action that is unlikely to go ahead. It does mean that the court file and the legal practitioner’s file have to be kept open indefinitely in case something happens.

When this problem arose in my office years ago, I urged the authorities, including the local Judge President and the Rules Board to do something about it, but I could not persuade anybody to take action.

There needs to be a superannuation provision in both the uniform rules of court and rules regulating the conduct of the proceedings of the magistrates’ courts.

Plaintiffs often institute action in the hope that the other side will be scared off and when that does not happen the matter goes into limbo with consequent inefficiencies and risks. Finality of litigation is, as the article points out, in the public interest.

 

Patrick Bracher is a legal practitioner at Norton Rose
Fulbright South Africa Inc in Johannesburg.

Legal opinion by Krish Govender

Please take note that the article ‘The case for a differentiated rate of payment of subscriptions by legal practitioners in SA to the LPC at the rate of 2% of taxable income (arising from the highest levels of income equality in the world)’ 2019 (Dec) DR 39 contains an oversight as Mr Govender’s calculation is based off of a rate of 0,2% and not 2% as the article title and content suggests.

 

Jason de Klerk LLB (NMU) is a legal practitioner

at Huxtable Attorneys in Grahamstown.

Erratum

The article ‘The case for a differentiated rate of payment of subscriptions by legal practitioners in SA to the LPC at the rate of 2% of taxable income (arising from the highest levels of income equality in the world)’ 2019 (Dec) DR 39 was published incorrectly, and should read: ‘The case for a differentiated rate of payment of subscriptions by legal practitioners in SA to the LPC at the rate of 0,2% of taxable income (arising from the highest levels of income equality in the world)’.

The paragraph on p 40 of the article should read: ‘It cannot be unjust in the economic climate in SA for a wealthy legal practitioner to pay R 40k as subscription if their taxable income for the year is R 20 million. This works out at the rate of 0,2% of taxable income. The benefit for all the legal practitioners is that this will be tax deductible.’

De Rebus would like to apologise for the mistake and for any inconvenience caused in the matter.

This article was first published in De Rebus in 2020 (Jan/Feb) DR 4.