Letters to the editor – July 2018

July 1st, 2018

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.


Implications of the increase in the prescribed income amount in terms of the Extension of Security of Tenure Act

An ‘occupier’ is defined in s 1 of the Extension of Security of Tenure Act 62 of 1997 (ESTA), as a ‘person residing on [essentially rural] land which belongs to another person, and who has on or after 4 February 1997, or thereafter had consent or another right in law to do so’. In terms of para (c) of the definition of ‘occupier’, and in terms of the Regulations issued under ESTA, a person will not qualify as an occupier if the person earns an income in excess of the prescribed amount of R 5 000 per month.

On 6 February, the Minister of Rural Development and Land Reform amended the prescribed amount from R 5 000 per month to R 13 625 per month. This amendment of the Regulations under ESTA was subsequently published in the Government Gazette (GenN72 GG41447/16-2-2018). The effect of the amendment is that a person who earns a monthly income of between R 5 000 and R 13 625 will now also qualify as an occupier as defined in ESTA.

In terms of the Stellenbosch University Law Clinic (the Law Clinic) means test, used by Legal Aid South Africa to determine whether or not a person qualifies for legal aid at the Law Clinic, a single applicant should not earn an income of more than R 5 500 per month, while an applicant who has a spouse or partner should not earn a combined income of more than R 6 000 per month.

During December 2017, the public was invited to comment on a proposed amendment to the Regulations issued under the Legal Aid South Africa Act 39 of 2014 relating to the above means test. The proposed amendment entails increasing the income threshold of a single applicant to R 7 400 per month (from R 5 500 per month), while increasing the income of an applicant with a spouse or partner to an amount of R 8 000 per month (from R 6 000 per month). The public was invited to comment on the proposed amendments before 19 January. The proposed amendments have to date not yet taken effect.

Regardless of whether the proposed amendment to the Regulations under the Legal Aid South Africa Act is effected, the negative implication of the amendment to the Regulations under ESTA is that certain farm occupiers – as defined in ESTA – will no longer qualify for free legal aid at institutions, such as the Law Clinic. This is particularly problematic as the Law Clinic is the only law clinic in South Africa, which assists in opposing ESTA eviction applications.

It is commendable that the reach of ESTA has been extended. However, the Law Clinic notes its concern that the extended reach of ESTA may result in large numbers of individuals who cannot enforce their rights under the legislation, because they do not qualify for legal aid and cannot otherwise afford to pay for the services of an attorney in private practice. Raising a legal defence to an ESTA application is a specialised and generally labour intensive exercise, and it is doubtful that a person who earns, for example, R 9 000 per month, which is also used to maintain their extended family (as is typically the case), would still be able to afford private legal representation. This situation becomes worse when one considers that the ESTA occupier may eventually be evicted and would have to utilise their funds to seek new, alternative accommodation. ESTA matters also constitute a form of social justice litigation where courts are normally loath to grant cost orders against one of the parties, as is typically the case in ordinary civil litigation. One would have to question to what extent this practice will remain possible when defence attorneys have to be compensated for their work. The likely scenario is that these legal costs will simply reduce the compensation available to the occupier, further limiting the prospects of securing a roof over their heads.

The increase in the prescribed income ‘cap’ amount in terms of ESTA increases the need for legal services. The question remains, however, who will meet this requirement and at what cost?

Nikita Roode, attorney, Stellenbosch


 The small arbitration procedure

An arbitration procedure to deal with smaller commercial matters was designed during 2017 by senior members of the Pretoria Bar in conjunction with the Arbitration Foundation of South Africa.

This procedure caters for matters between R 20 000 and R 200 000 and is presided over by accredited arbitrators, being practitioners of at least five years standing and, who have completed, an arbitration course for this procedure.

Any matter where an award sounding in money is sought, can be entertained in this forum. Matters specifically excluded are:

  • matrimonial disputes;
  • disputes pertaining to children;
  • concerning the status of persons; as well as
  • indicts.

The distribution of an estate after a divorce order was granted can, however, also be dealt with in this forum.

The claimant institutes proceedings by filing a statement of claim and paying a registration fee. This is followed by a statement of defence and if applicable, a reply. The parties may choose whether they wish to have legal representation or not.

The proceedings are directed and guided by an arbitrator who will proceed in an inquisitorial fashion. The hearing and all other procedures before this tribunal are subject to a fair administrative process. The arbitrator can, in their discretion, dispense with oral evidence and decide a matter only on the papers and documents submitted to them. The arbitrator will deliver a reasoned award within 14 calendar days after the hearing.

A cost order can be made and the award can also be made an order of court as provided for in the Arbitration Act 42 of 1965.

Arbitrators’ fees are capped in order to curtail the costs of the proceedings. No fees are payable for the venue at which the arbitration is held. Parties can agree on an arbitrator from the panel of arbitrators who completed the training course for this procedure. If there is no agreement, an arbitrator will be appointed from the panel of arbitrators.

Persons interested in this procedure can contact Tanya at (012) 942 2107 or e-mail: manager@gkchambers.co.za.

IG Bredenkamp SC, advocate, Pretoria


Attorneys and clients – when relations turn sour

One cannot help but wonder: Are clients becoming more knowledgeable of their rights or have we, as legal practitioners, become so complacent in our work that we forget to cover our backs when dealing with clients?

Legal practitioners can all attest to the joy of securing a client or two on a given day. Besides, economic times are hard and as a result, securing clients has become a challenge for some law firms. It is normal practice – for most firms – to start working on a client’s instruction immediately after the latter has signed a mandate and paid a deposit. Most clients come to a legal practitioner’s office with big, or sometimes, even impossible or unrealistic expectations. It is our duty as the legal practitioner to identify and attend to such possible risks beforehand. The other common risk in the legal profession is that failing to secure enough funds to see the given instruction through to its finalisation. It is a known fact that the latter is capable of permanently destroying the relationship between a legal practitioner and client.

Some legal practitioners are careful enough to discuss the risks with the prospective client and this is done verbally during the first consultation. At this stage the clients are quick to say they understand and agree to the terms explained to them, until that time when their file gets closed ‘due to lack of funds’. We all know what the client’s reaction is going to be. The most common utterances are ‘the attorney did not explain’, ‘I did not understand’ or the most dangerous one ‘the attorney squandered my money without doing any work’.

Lately, I have come across people telling negative stories about legal practitioners. Whether there is merit in these stories or not is of less importance. What matters is that word of mouth can help build a legal practitioner’s reputation, as much as it can also help destroy such a reputation.

It is high time that legal practitioners should consider taking time to draft documents to cover themselves against the clients before they rush into writing that letter of demand on behalf of the client.

Indeed, practice does make perfect. If legal practitioners practice drafting important documents, they will not only be protecting themselves against potential litigation, but they will be fine-tuning themselves for those binding provisions of the Legal Practice Act 28 of 2014. Let us all keep our attorney-and-client relations sweet.

Serialong Lebasa, attorney, Vereeniging


Discovery affidavits practice

An unnecessary practice exists in terms of which a legal practitioner, after filing a discovery affidavit also files a copy of each of the discovered documents. Not only does this immediately exacerbate costs on both sides and burden the court file, but more importantly it may inadvertently lead to the disclosure of privileged communications.

Particular care should be exercised when the legal practitioner institutes proceedings against their former client, invariably for fees. Discovery of all communication between the legal practitioner and the former client to support the legal practitioner’s claim, or to respond to the former client’s defence or counterclaim, is necessary for the proper conduct of the legal practitioner’s case.

The rules of court (Uniform Rules of Court r 35(2), Magistrates’ Courts Rules r 23(2)) regulating discovery call for a list of documents identified by date and description confirmed under oath. As a matter of practice that a party intending to utilise any of the documents discovered by either party identifies that document for the purposes of a trial bundle. In my view, the legal practitioner seeking to recover a fee from a client will invariably breach professional confidentiality obligations by filing a bundle of documents, which includes in that bundle privileged communications. It is incontrovertible that professional privilege is that of the client and that the privilege survives termination of the legal practitioner’s mandate, whether by the client or the legal practitioner’s withdrawal from the matter.

The apprehension to be guarded against is that a party who has interest in the affairs of the legal practitioner’s client will become privy to the privileged communications of the client in circumstances where the legal practitioner has filed such a blunderbuss bundle of documents, including privileged communications. Lewis writes that ‘it is no excuse at all that the facts are public property ascertainable by anyone on appropriate search’ (EAL Lewis Legal Ethics: A Guide to Professional Conduct for South African Attorneys 1ed (Cape Town: Juta 1982) at 295). As a consequence of litigation in a public forum (s 34 Constitution) states that those privileged communications might well be subjected to scrutiny by the court. The important point is that: ‘Without the client’s consent his attorney should not relax confidence merely because the matter has become public, either in the courts or in the press’ (Lewis (op cit) at 299).

The legal practitioner is obliged to protect the professional privilege that adheres to communications with his client, even and especially when they are at loggerheads.

Grotius Greenhorn, Johannesburg


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