Letters to the editor – October 2019

October 1st, 2019
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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 #Conveyancingmatters

Passing the conveyancing examination is indeed not easy, not because it is difficult, but because it covers such a vast field of complicated legislation and law, and the work is indeed very technical: There is only one correct outcome.

Is the answer not to create two grades of conveyancers? In grade 1, the candidate is allowed to prepare only run of the mill work, such as transfers and bonds. When more experience is gained, the candidate can write the grade 2 examination, which will allow them to do more complicated work.

In other words, the amount of material to master is spread over two examinations, but grade 1 allows a candidate to get a foot in the door immediately.

Anville van Wyk BA LLB (Stell) Post Grad Dip Tax (UCT) is a legal practitioner at
van Wyk van Heerden Attorneys in Cape Town.

I refer to your editorial ‘Conveyancing examination update: What has the LSSA done so far?’ 2019 (Aug) DR 3.

I want to put it on record that I fully support the transformation of the legal fraternity to represent the demographics of South Africa (SA).

The Legal Practice Act 28 of 2014 (the LPA) in s 26(2) provides that a legal practitioner qualifies to be enrolled as a conveyancer, if they have passed a competency-based examination or assessment of conveyancers as determined in the rules by the Legal Practice Council (LPC).

The above implies that before one can be enrolled as a conveyancer, one must have been admitted as a legal practitioner. What is the reason for this requirement? I suspect that the reason might have to do with making qualifying as a conveyancer a choice that individual legal practitioners make.

Once that choice is made, one has to sit for the competence-based examination of conveyancers. No one is forced or obliged to take the examination.

The recent Law Society of South Africa (LSSA) conference, in my humble opinion, did not discuss the conveyancing examination matter thoroughly and meaningfully. I do not recall a resolution being taken to establish the LSSA Conveyancing Task Team. This team, I respectfully submit, was established without a mandate from the participants at the conference.

I am of the view that there is no gatekeeping in the conveyancing field. All candidates write the same conveyancing paper in the same language unlike in the past.

The high failure rate is attributable to a variety of factors and gatekeeping is not one of them. One of the biggest causes of the high failure rate is the sheer volume of work/studying that a candidate has to go through in preparing for the examination. Another contributing factor is the lack of exposure to the conveyancing field by many of the candidates.

There are other matters the legal profession will have to contend with going forward.

There are candidates who complain that the Board Examinations are too strenuous and that they should be changed. They argue that they should be written over a period of at least a month, with one paper written per week. Furthermore, other candidates argue that the notarial examination should be divided into two papers, and written on separate days, with at least a few days between the papers.

There is another school of thought, which calls for the scrapping of the conveyancing exam, as in their opinion, it serves no purpose as any person can appear at the Deeds Office.

As we are all aware, there are some legal practitioners who support Proxi Smart in their ongoing legal battle to take some work from conveyancers.

What will be the end game?

The conveyancing examination consists of two papers. I submit, the proposed format to write the conveyancing examination as two separate distinct papers is absurd and will lead to the lowering of standards. To pass the examination, candidates must obtain the pass mark for the examination as a whole as it is presently applicable.

I fully support the recommendations to increase the pool of examiners, to make the past examination papers and model answers freely available, to introduce mentorship programmes and for the LSSA to overhaul and improve the Legal Education and Development conveyancing course.

Transformation of the conveyancing field must never equate to the lowering of standards.

The LPC must resist any attempts to tamper with the various competency-based examinations, as provided for in the LPA.

Matome Lawrence Selepe BSc Dip Higher Education (University of Limpopo) Post Grad Dip Marketing Management LLB (Unisa)
is a legal practitioner at Van Rensburg Attorneys in Pretoria.

Justice delayed is justice denied

I find myself writing out of anger and frustration as I am at my wits’ end. My client has – yet again – been denied justice due to an eviction matter being postponed for the sixth time. We have followed all the correct procedures and rules and yet illegal occupants are still living a carefree life on my client’s property, while my client has to carry the financial burden.

The property was awarded to my client in accordance with her late mother’s will and was registered in her name in May 2018. My client’s sister, her husband and their adult children, who have been residing in a wendy house on the same grounds for some time, decided to take occupation of the main house when my client’s mother, the previous owner of the property, fell ill. They were never given permission to move into the main house and have never contributed towards the maintenance of the property.

My client, after registration of the property, tried to negotiate with her sister to vacate the property, but the respondents threatened that they would rather burn the house down than move out. She, thereafter, decided to turn to the law for assistance.

The matter was heard for the first time in December 2018 and was postponed for two months to allow the respondents adequate time to find legal representation. The magistrate warned that if they do not return with legal representation in February 2019, that they would be evicted.

On return to the court in February 2019, I was informed by the respondents that their application to Legal Aid South Africa (Legal Aid SA) was denied due to the fact that their household income exceeded the minimum threshold. This time the matter was before another magistrate who decided to postpone the matter in order for the respondents to appeal Legal Aid SA’s decision and to allow the respondent’s time to seek assistance from the Legal Practice Council (LPC), therefore, denying the direction issued by the previous magistrate.

The matter was heard again in April 2019. The respondent’s presented the court with a letter from the LPC, dated two days before the date we appeared in court. The letter stated that the respondents sought pro bono legal assistance from the LPC, but that no attorney was available to represent them at court. I addressed the court and pleaded that my client was being prejudiced by the constant delay as she was continuously paying towards a property of which she enjoyed no use of. I also brought it to the court’s attention that my client had further been prejudiced as she could not provide accommodation to her children although she was the owner of another property to which she had no access. The court, yet again turned a blind eye to my client’s prejudice and postponed the matter affording the respondents more time to find legal representation.

We appeared before the court again in June 2019, again before a different magistrate. The respondents presented the court with another letter from the LPC. This time the letter was dated four days before the date we appeared in court. I addressed the court again regarding the merits, the possibility of alternative accommodation, the continuous delays, the threat made to my client and my client’s financial position. The first respondent was sworn in and the court established that the first respondent was employed and that no minor children were residing with the first respondent. The magistrate informed me that it would be unreasonable to expect the respondents to pay rent at another property. She also instructed me to liaise with the City of Cape Town and to assist the respondents in securing legal representation as it was my duty as an ‘officer of court’. The matter was postponed to the beginning of July 2019.

I followed the magistrate’s instructions and presented her with an affidavit confirming same with the relevant e-mails attached thereto in July 2019. The respondents again came to court without legal representation. The magistrate contacted Legal Aid SA herself and instructed the respondents to return to Legal Aid SA and to secure legal representation before the next date, being the end of July 2019.

We returned to court during the end of July 2019. My concerned client contacted me early that morning. She informed me that the respondents’ son had been engaged in criminal activities and that youngsters from the neighbourhood threatened to break her property down as they believed that he was hiding at my client’s property. The court commenced and the respondents presented the court with a letter from Legal Aid SA stipulating that their application for legal representation had been completed, but had not yet been approved as a ‘merits investigation’ had to be done. I yet again pleaded to the court that my client finds herself in a difficult situation and that the court has not assisted her since December 2018. The court delayed justice for my client again and the matter has now been postponed for the sixth time.

I firmly believe that justice delayed is justice denied. This matter has been presided over by three magistrates, who each allowed the respondents more time to find legal representation. I believe that everyone has the right to legal representation, however, you can lead a horse to water but you cannot make it drink. These respondents have been afforded more than enough opportunity to seek legal representation: They never appealed the Legal Aid SA’s decision to refuse them legal representation and they did not contact the LPC timeously to enable the LPC to assist them with a pro bono attorney. Although a previous application to Legal Aid SA had been refused due to the respondents exceeding the threshold, the magistrate instructed the respondents to go back there. I am convinced that the respondents will return to court on the next date without legal representation. It is a magistrate’s duty to adjudicate the law and to let justice be done. It is not a magistrate’s duty to fight for a litigant who has no respect for the law and it is simply unjust and unfair to trample on a law-abiding citizen.

Mariëtte Wright LLB (UP) is candidate legal practitioner at
Welgemoed Attorneys in Cape Town.

This article was first published in De Rebus in 2019 (October) DR 4.