Letters to the editor – October 2021

October 1st, 2021

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.

Compensation for victims

I cannot imagine any reader of your journal not welcoming the current concentration on gender-based violence and the praiseworthy attempts at terminating this scourge of society, which arrives among us from those patriarchal religious systems, which abhor granting civil rights to the 51% of our population.

A definition of democracy is: ‘The greatest good for the greatest number’ (Markkula Center for Applied Ethics ‘Calculating consequences: The utilitarian approach to ethics’ www.scu.edu, accessed 15-9-2021).

Our female counterparts outnumber those of us who are ‘male and pale’ and so the concentration on gender-based violence which will, hopefully, advance the position of the feminine numbers is to be welcomed.

However, the new legislation extends the ‘burden of decision’ to the reception desk at every one of the South African Police Service outlets. The burden of decision, leading to restorative or preventative action might sit on the shoulders of the servant manning the reception desk, either in Houghton or in Sunnyside, Tshwane but what increased burden will it place on the shoulders of the servants manning the reception desks in Nqutu, Babanango or Nkandla?

But why leave the question of victim compensation to the new gender-based violence legislation. The Criminal Procedure Act 51 of 1977 provides that a ‘court may award compensation where [an] offence causes damage to or loss of property … (including money) belonging to some other person, the court in question may, upon the application of the injured person or of the prosecutor acting on the instructions of the injured person, forthwith award the injured person compensation for such damage or loss’.

Currently there is so much concentration on s 35(3)(h) of the Bill of Rights in the Constitution that the pendulum has swung against the interests of the property owner, and never forget that after John Locke it is accepted that the greatest property right any person has, is life. Countenancing the theft of a pocket watch is the initial step to countenancing the death of the pocket watch owner. Countenancing the rape, which in essence is the bodily integrity of a person is the first step towards depriving that raped person their most valuable property: Their life.

Let the prosecutors be more vigilant in utilising s 300 of the Criminal Procedure Act for the benefit of the victims of crime. Whereas the criminal chooses or elects on a criminal action most victims are subjected to violence, rapine and the harming of their souls by the criminals.

Lewis Errol Albert Callaghan BAUED (Rhodes University) LLB (UKZN)
is a legal practitioner in Cape Town.

Senior status

More than a year ago, regulations were passed calling for comment on the conferment of senior status for attorneys. Nothing further has transpired.

Could the Legal Practice Council please advise members as to the progress thereof as attorneys are being prejudiced daily?

A few examples are where judges do not afford the same respect to attorneys, as opposed to their Senior Counsel counterparts in trials, and there is a huge problem on taxation when an attorney has appeared as a senior practitioner against senior and junior counsel. In such cases, the attorney is only granted fees on a much lower scale than what would have been awarded had the senior counsel been successful. This latter issue also impacts on the attorney’s fees (and ultimately the client/public) when applying the Contingency Fees Act 66 of 1997.

Gary Austin BCom (Wits) BProc LLB (Unisa) LLM (UP)
is a legal practitioner at Gary Austin Inc in Johannesburg.


Reply from the LPC

The conferment of silk status to legal practitioner’s criteria is not effective yet. The Legal Practice Council (LPC) was tasked with developing the guidelines, soliciting comments from the profession and submitting them to the Minister of Justice and Constitutional Development for their inputs and guidance.

This was done last year and the LPC is waiting for the finalisation of that process and is currently not receiving any applications for the conferment of Senior Status. The LPC will make an announcement to the profession once the process has been concluded.

Legal Practice Council National
Office, Midrand

This article was first published in De Rebus in 2021 (Oct) DR 4.