Letters to the editor – May 2020

May 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.

Lack of conveyancing apprenticeships

I have noticed recently, a degree of alarm among certain parties at the high failure rate in the conveyancing and notarial examinations. So much so that I understand that an inquiry has been established to try to understand the reasons and find solutions. May I be permitted to ‘paint a few portraits’ by comparison of what I believe to be the case in a high percentage of cases, which may throw some light on the situation?

First, let us look at what a specialist doctor does. Having completed their internship, they may decide to specialise as a trauma surgeon. The candidate obtains a position as a registrar or assistant registrar in the trauma department at a hospital. They then do nothing else but trauma work for a few years, while studying and passing examinations until they are qualified. It is similar with candidate legal practitioners. Having obtained articles, a young candidate should begin work as a legal practitioner. They could do simple court motions, some basic ‘crash/bang’ or other litigation, pleadings, perhaps some contracts and other work legal practitioners do to teach them about the profession. The point I am making is that candidate legal practitioners, should for at least a year, if not more, work in the profession they have chosen.

I believe this is not the case in the fields of conveyancing and notarial practice, at least in a very large percentage of cases. The candidate legal practitioners cast around for some course or other to attend, gets hold of some past examination papers, does some swotting and then fails the examination. With respect, I do not believe it is possible to pass these examinations without spending a substantial amount of time doing the work – serving the apprenticeship – as it were. How many of the candidate legal practitioners who fail have actually spent time doing practical conveyancing work, every day for a significant period?

I do appreciate that in some of the larger firms, the candidate legal practitioners may be required to spend a few months in the conveyancing department, but I believe that is the exception rather than the rule.

John Brogan is a legal
practitioner in Mtunzini.

 

Briefing medico-legal ‘experts’ – Road Accident Fund information

I have provided reports as an orthopaedic ‘expert’ for many years. Recently legal practitioners acting for claimants have begun to demand that these ‘experts’ give estimates of future treatment costs.

This is, of course, impossible. Not only are those (surgical) ‘experts’ unqualified by training to do so, but such predictions cannot be made. The time of a hospital stay varies considerably, as will the costs.

However, those legal practitioners will brief ‘experts’ who are prepared to ‘guesstimate’, a reflection of legal lethargy and avarice.

Since the surgical ‘expert’ recognises their limitations, a figure will be proposed, which is inordinately high (the ‘expert’ will – or should – realise that if an underestimate is made, that ‘expert’ could be liable for the excess).

The fairest approach would be for the Road Accident Fund to routinely offer an ‘undertaking’ to pay future treatment costs as and when (or if) these arise.

The legal practitioners acting for claimants will not like this as it will reduce the ‘quantum’ of the claim.

Jon Driver-Jowitt MB BCh FRCS (Wits)
is a Consultant Orthopaedic Surgeon in Cape Town.

 

Where should we go? Outcry by ex-offenders of minor offences

Every wrongful act deserves a punishment, which is profoundly aimed at restitution, rehabilitating, reforming, and deterring such conduct. The morality of this theory is to justify society’s ‘imposition of punishment on offenders and try to provide an adequate ethical rationale for inflicting harm. Deterrence maintains that people are deterred from crime because they are concerned about the possible consequences of their actions’ (Cyndi Banks Criminal Justice Ethics – Theory and Practice 2ed (SAGE Publications 2009) at 123).

The history books would show that punishment is justified because it is deserved and becomes a question of responsibility and accountability for acts that harm society. The Criminal Procedure Act 51 of 1977 (the Act) allows perpetrators to apply for expungement of the criminal records in terms of s 271B(1) of the Act. In reg 2(1), the application procedure form for the expungement of a criminal record states:

‘A person may apply if:

  • [Ten] years has lapsed after the date of the conviction for that offence.
  • The person has not been convicted of any other offence and sentenced to a period of imprisonment without the option of a fine during those [ten] years.
  • The person was sentenced to any of the sentences set out in Part II of this Form.

A person will not qualify if:

  • He or she was convicted of a sexual offence against a child or a person who is mentally disabled or of an offence, where he or she was found to be unsuitable to work with children.
  • His or her name is included in the National Register for Sex Offenders or the National Child Protection Register but may qualify if his or her name has been removed from the National Register for Sex Offenders or the National Child Protection Register.

Note:

  • Before submitting the application for expungement of a conviction, a clearance certificate showing that a period of [ten] years has lapsed after the conviction(s) and sentence(s), must be obtained from the Criminal Record Centre of the South African Police Service. The clearance certificate must be attached to the application.
  • If the person’s name has been included in the National Register for Sex Offenders, a confirmation must be obtained from the Registrar that his or her name has been removed from the Register.’

It is common cause that the Act mostly includes expungement on serious offences as listed above, but what about other excluded acts not meriting this punishment?

Yes, many have made poor choices growing up and have had a hard time trying to overcome the choices that they made, some have even served the sentence imposed on them.

Currently, South Africa (SA) is facing a high a rate of unemployment and the scarcity of jobs, which includes a number of youthful ex-offenders who are still haunted by their previous records committed during their younger days, for example, theft, shoplifting etcetera, to which they have to wait for the period of ten years without employment because of this Act.

One would argue if this waiting period is justifiable – even in this new era where SA is captured by economical downfall – these young people are supposed to be contributing to SA’s economy in the name of trying to bring them back to society.

I submit that an interim Bill is needed, which will serve as a critical step to ensuring that a pathway to employment for youthful ex-offenders exists, which serves a direct benefit to both the youth, as well as employers throughout the state looking to fill vacancies.

Tumelo Mdhluli LLB (University of Limpopo) is a legal practitioner at
Lekhu Pilson Attorneys in Middelburg.

 

The judiciary in a modern-day South Africa: A practitioner’s perspective

Retired practitioner, Marcel Strigberger asks an important question: Can judges get nasty and difficult? Based on his experience of some forty odd years in the courts, he identifies the problem that ‘some judges, not all of course, develop a severe case of “judgitis”, which in short is Greek for “Move over Louis XIV, [I am] on the bench now”’. He laments that ‘judgitis’ can get to some judges’ heads and they can get nasty (see M Strigberger ‘Judging the judges: With all due respect, of course’ (2019) ABA Journal (www.abajournal.com, accessed 1-3-2020)).

The fact of the matter is that judges wield immense power. Some judicial officers adopt a change in attitude after ascending to the Bench by becoming indifferent to the day-to-day struggles that their former colleagues in private practice are facing, and they do tend to treat legal practitioners with disdain. It is a reality encountered by many legal practitioners.

This begs the question as to traits a model member of the judiciary should have in a modern-day South Africa (SA).

‘The job of a judge is very isolated, very demanding – very difficult’ said Juanita Bing Newton, a judge of the New York Court of Claims (W Davis ‘Bullying from the Bench: A wave of high-profile bad behaviour has put scrutiny on judges’ (2019) ABA Journal (www.abajournal.com, accessed 1-3-2020)).

Therefore, in my view a paradigmatic member of the judiciary is robust and patient, sensitive and thick-skinned, enthusiastic and cautious, a committed legal practitioner and someone who does not spend their time exclusively with the law. An independent thinker who works well with others, someone who can decide the most complex point of law, but also deal efficiently with paper applications/motions and administer a court or another impartial tribunal (including commissions of inquiry).

It is imperative for a judicial officer to command the confidence of the public. Each member of the judiciary requires a working knowledge of everyday life. It does not instil confidence of a judicial officer sitting at the Gauteng Divisions of the High Court to ask who Mafikizolo are, or what a crossword puzzle is and/or to be unaware in football, of the most famous rivalry (derby) in SA, more substantively, to be unaware of the conditions in which the majority of the people who are regularly before the court live and work.

A judicial officer also requires a good temperament. The work demands calmness. In most instances those who appear in court are ordinary citizens. When they attend court, parties and witnesses are often anxious and frequently upset. Further, cases may be badly prepared/presented or otherwise frustrating. Legal practitioners may be inexperienced or simply lacking in insight.

Any member of the judiciary should be able to work constructively with others. This includes working with and certainly learning from other judicial officers but also to work well with other court personnel.

Now, to satisfy the purist, it goes without saying that a judicial officer must have the highest integrity, be honest and upstanding and have a good work ethic.

E Herbert Ludick BProc LLB (UWC) is a legal practitioner at EHL Attorneys in Durban.
Mr Ludick is admitted to the Roll of Solicitors of England and Wales.

 

This article was first published in De Rebus in 2020 (May) DR 4.