Thursday, September 21, 2017

An attorney asks what processes need to be followed for a client to change their surname.

Question: An attorney asks what processes need to be followed for a client to change their surname. They state that Home Affairs has told their client that they will need to make an application to court to do so.

My answer:

S 26(2) of the BIRTHS AND DEATHS REGISTRATION ACT NO. 51 OF 1992 states that: 'At the request of any person, in the prescribed manner, the Director-General may, if he or she is satisfied that there is a good and sufficient reason as may be prescribed for that person’s assumption of another surname, authorize the person to assume a surname other than his or her surname as included in the population register, and the Director-General shall include the substitutive surname in the population register in the prescribed manner.'

S27 of the same act, adds: 'Publishing of alterations and amplifications of forenames and surnames.—(1)  In the case of an alteration or amplification of forename or surname mentioned in sections 23, 24 (1) and 26 (2), the Director-General shall as soon as possible after such alteration or amplification has been authorized, cause any such alteration or amplification which relates to a person of age, to be published in the prescribed manner by notice in the Gazette.
(2)  Subsection (1) shall not apply where the alteration was authorized in the prescribed manner under a witness protection plan.'

The applicable regulations framework governing what good and sufficient reason is, is GNR.128 of 26 February 2014:  Regulations on the Registration of Births and Deaths, 2014 (Government Gazette No. 37373) which states, in regulation 18, re: Assumption of another surname:

'Assumption of another surname.—(1)  An application for assumption of another surname referred to in section 26 of the Act by a person of age must be made on Form DHA-462 or DHA-196 illustrated in Annexure 10 and Annexure 11, as the case may be.
(2)  The reasons referred to in section 26 (2) of the Act must relate to—
a change in the marital status of a woman;
assumption by a person of his or her biological father’s surname, where the father has recently acknowledged paternity in terms of regulation 13 or 14; or
protection of a person in terms of the Witness Protection Act, 1998 (Act No. 112 of 1998).
(3)  An application contemplated in subregulation (1) must be accompanied by—
a certified copy of the identity document or birth certificate of the applicant;
a certified copy of the identity document or valid passport of the biological mother or father or both parents of the child, as the case may be;
where applicable, a certified copy of the marriage certificate of the parents;
where applicable, a certified copy of the death certificate of any deceased parent;
where applicable, a letter issued by the Director: Witness Protection; and
( f )
proof of payment of the applicable fee.
(4)  Upon approval of an application contemplated in subregulation (1), any alteration of a forename, surname or assumption of another surname made in terms of section 24, 25 or 26 of the Act must be made—
by entering the altered forename or surname or assumed surname of the minor in the birth register; and
if the particulars of the person have been included in the national population register, by including the altered forename, surname or assumed surname in the national population register,
without erasing the previous forename, surname or assumed surname.
(5)  The assumption of another surname contemplated in subregulation (2) (a), (b) or (d) shall not have the effect of changing a person’s identity number.'

The current prescribed fee is set out in GNR.1123 of 28 December 2012:  Notice of fees payable (Government Gazette No. 36054), as 'R325-00' for 'An application by a major to assume a different surname: Provided that, should the applicant be lawfully married, the fee shall include the application of his or her spouse, as well as those of any minor, or if the applicant is divorced, a widow or a widower, the fee shall also include the application of his or her minor, if any.'

The forms to do the application are available at Home affairs. Any other reason would likely require an application to the High Court, setting out that something outside of the regulations is in fact good and sufficient cause for the purposes of the Act, despite what the regulations currently state, as the form, which I have a copy of, specifically allows a checkbox to be filled out of any of the above reasons, and only those reasons.

Nothing in this article should be relied upon as legal advice in any way or form. For that, kindly make an appointment with your attorney, and properly brief them as to all your facts and the nuances of your matter.

Thursday, September 14, 2017

What is the difference between an attorney and an advocate, and which profession is it better to join?

Question: Is it wiser to become an attorney or an advocate?

My answer:

An advocate is a court and procedural specialist. Very few people succeed at being advocates, as they rely on attorneys to brief them. I suspect this will remain so under the new Act, despite the allowance of some advocates to then be briefed directly.

An advocate must litigate to survive.

As an attorney, I prefer to settle matters outside of court, and can make money drafting things like contracts. I deal directly with the public and set about solving their various problems, and disputes, and advising them of their rights and remedies in terms of the law, and assisting them as regards such.

If you have any conflict between the two, become an attorney. That said, even that is a very difficult route. It doesn't involve a year without money, which new advocates must endure, if they become pupils. However, it is take no prisoners, candidate attorneys often earn a pittance, and many entry level legal jobs pay slaves' wages, and overwork the associates involved.

Success can be found in both the bar and the attorney's profession, but you will fight for your dinner every night.

I could not see myself doing anything else, but unless you have the killer instinct and the ability to harm in a lawful and self controlled manner, don't become either. Rather then be a legal advisor or countless other jobs.

Question: What is the difference between an attorney and an advocate?

My answer:

An attorney is a general practitioner of the law, who interacts with and is briefed by the public. They do everything from giving general legal advice, to the drafting of wills and contracts.

Most matters an attorney deals with never make it to court. We are like your doctor, who you see when you are ill. An advocate is a trial specialist. They specifically specialise in the procedure and process of court.

Many advocates even draft court notices for their attorneys, and in the case of High Court, appear for their attorneys, and co-sign the pleadings, unless an attorney has Right of Appearance in the High Court.

An advocate is briefed by an attorney, and the attorney deals with all the privileges of being someone dealing with the general public.

In terms of the new Legal Practice Act, an advocate will be able to be briefed directly by the public if they set up a trust account and follow those sorts of requirements. However, most advocates are unlikely to do so, because attorneys are less likely to use them at court, if they are competing with them.

How to become an Advocate in South Africa

I was asked how someone joins the sister profession of my own (I — being an attorney, not an advocate). Specifically, I was asked how a person may join the advocacy. This is my response as to the process, as I understand it to be.

To become an advocate, you need only be a citizen of good standing with an LLB equivalent degree.

Specifically, a citizen or lawfully-admitted, ordinarily-resident permanent-resident of the Republic, over the age of 21, duly qualified, such as via an accredited LLB equivalent degree, and if an attorney, your name should have been removed from the requisite roll of your own volition.

You are then admitted at court, as an Advocate of the High Court.

To become a member of the bar, is more complex.

You must apply and be accepted for Pupillage. You should be an advocate first, to do so.

You must pass your interview with the Pupillage Committee.

You then may commerce pupillage, a year of largely unpaid and monetarily unsupported work and study. In Johannesburg, lectures are provided for candidates.

After pupillage is completed, and the Bar Exam passed, an advocate then joins the local Bar, a member of the General Council of the Bar, and in Johannesburg, the Johannesburg Society of Advocates' Johannesburg Bar.

The Society the advocate joins will then attempt to place the advocate in a local group of advocates.

Et voila.

Wednesday, September 13, 2017

Someone asked if men or women are better lawyers. This is my response, as a lawyer.

Someone asked if men or women are better lawyers. This is my response, as a lawyer.

The best thing I could have done is learn computer programming. Law requires the best of a man and the best of what women are able to do, also. Intuition and the nitty gritty are learnt. Male and female practitioners do start out from different perspectives, but if they survive practice, they essentially become lawyers. The men become intuitive, the women become process oriented. Much like computer programing, you need to learn how to swim after falling into an ocean. I have learnt a lot from all the men and women I have worked for as a lawyer. What I learnt from the men was quite different from what I learnt from the women. We are different but equal, demographically, anyway. If you want to be a good lawyer, you really have to humble yourself and learn from the opposite sex rather than compete with them. For instance, inside I am an introvert, and cases are what fascinate me. I have learnt from the women that I have worked for, that people are incredibly important, in law. Not just legal principles.

Sunday, September 10, 2017

Can Huur Gaat Voor Koop be contracted out of?

Question: can Huur Gaat Voor Koop be contracted out of and ordinary eviction processes thus not followed?

My Answer:

Huur Gaat Voor Koop is a real right of the lessee, not a contractual or personal right.

Where a sale of property has occurred, by means of registration of the property in the new owner's name, at the requisite territorial Deeds office, the lease has been transferred to the new owners of the property. If they want to evict, they have to follow the normal processes to do so. The same lease as was had with the old owner is had with the new owner. Neither the tenant nor the landlord can elect whether to uphold it. Rent is due to the new owner and use and enjoyment to the tenant, assuming in a short lease, there has been occupation of the property, and in a long lease, it has been registered.

The question dealt with a matter where the new owner then purported to make an oral agreement of lease with the tenant, already in occupation of the property. Oral and even tacit agreements of lease are valid in South African law. However, if the old lease set out a non-variation clause, it needs to be complied with, as the material terms of the lease between the old owner and tenant are now applicable to the new owner and tenant.

Huur Gaat Voor Koop applies automatically in terms of law. The lease is between tenant and owner for the use and enjoyment of the property. If the owner changes, the new owner becomes the lessor. Huur Gaat Voor Koop means that the contract of lease is between the owner, whoever the owner is, and the lessee. It is a concept that the new owner steps into the shoes of the old owner. It is a basic concept of law and to my knowledge cannot be contracted out of. The same lease as was had with the old owner is had with the new owner. Neither the tenant nor the landlord can elect whether to uphold it. Rent is due to the new owner and use and enjoyment to the tenant, assuming in a short lease, there has been occupation of the property, and in a long lease, it has been registered. There is of course, the decision of the court that an option to purchase of the lessee's, in the contract of lease, is not material to the lease itself, and thus does not transfer to the new owner. Generally speaking, there is however merely a stepping into the shoes of, at work.

In an example given in the actual question, a contract allows for a landlord to give a short notice to the tenant, to cancel the lease and evict them upon sale of the property by the landlord. For me that creates a problem of a term of the contract being variable and at the sole discretion of the party it benefits. I think it unlikely that term will be deemed valid. This is different from normal notice periods in hybrid leases.

If the person asking were evicting the tenant, firstly they should make sure they are representing the current registered owner. Secondly, they should not rely on such a clause. The clause is likely contra bonos mores, and void for vagueness, as essentially, a term of the contract is determined solely by one of the parties at a later stage. The lease purports to be a fixed term lease, but is contingent on an event entirely in the landlord's discretion, seemingly aimed at negating the tenant's real rights in relation to the property. This is not the equivalent of ordinary notice periods in a contract, but rather affects a material term, via vagueness. The landlord needs to follow the standard process of eviction. They shouldn't rely on that term, as it may be deemed unenforceable at law. In the case of a residential lease, the Consumer Protection Act, and Rental Housing Act will also play a role, as well as provisions such as those in the Prevention of Illegal Eviction of Unlawful Occupiers Act, and possibly the remedy for Spoliation.

An attorney dealing with such a matter would need to look into the ordinary notices the landlord would need to give and what normal time periods apply. A good start would be to check the copies of Amlers and Butterworths at their law firm. Before proceeding in such a matter it can be advisable to look at the titles for eviction, lease, vindication and the Actio ad exhibendum, in Amlers, along with its title on Spoliation.

Nothing in this post should be relied upon as legal advice. For that, kindly make an appointment with an attorney and brief them fully of your matter.

What sort of bodies enforce Public International law?

Question: What sort of bodies enforce Public International law?

My Answer

Public International Law is more of a soft law sort of system. Mostly, other nations, by their actions, cause countries to obey it. In the case of international criminal law, the International Criminal Court does such. Regionally, there are bodies such as the African Court of Justice and Human Rights, and the European Court of Justice. Such courts enforce treaties. Internationally, there is the International Court of Justice. Nations tend to obey the legal opinions of international tribunals, which tend not to create precedents in the traditional sense, with their decisions. Countries might use sanctions, or the like, to enforce laws. One body of international law enforcement, is found in the Security Council of the United Nations. Their diktats even affect South African lawyers, bound to enforce international law against individuals via FICA. Most of the time, compliance to Public International Law is enforced by other nations, and via nation-peer pressure. Bodies such as the Council of Europe, and the African Union can exert significant pressure from one nation to another.

Nothing in this post constitutes legal advice. For that, kindly make an appointment with an attorney and fully brief them of your issue.

Sunday, August 27, 2017

Preserving Client Confidentiality, via the Implementation of an Encrypted PDF Letter Attachment System

With the amounts of money, and volumes of confidential information which attorneys often deal with, adopting safety protocols similar to those of financial institutions can save money, and help reduce confidentiality breaches.

Increasingly, attorneys and their clients are reporting cybercrime, including hacking. Solutions such as ProtonMail are effective, but require a client to set up an account for best usage. Simpler methods are easier to apply in most instances.

Use of encrypted, password protected PDFs as a solution

An easy way to protect sensitive information, and to, by and large, verify identity, and better ensure privacy, is to send sensitive information as (256 bit) encrypted, password protected PDF attachments, using programs such as Power PDF to encrypt information.

A client can then be WhatsApped or SMSed the (preferably 12+ character) decryption password, per document, and a summary of what the communication is. Alternatively, a client and attorney can agree to a matter specific unique password, in consult.

Monday, May 29, 2017

President Jacob G. Zuma gets away with it, again, as NEC vote to give him their confidence, and slam critics

'And I would have gotten away with it too, if it weren't for you meddling kids' is the famous line from the Hanna-Barbera children's show, Scooby Doo.

The monsters, when they were unmasked as ordinary, everyday people, with a penchent for criminal enterprise, would say that line, rote, to the naughty gang of misfits, who delighted in it.

The ANC NEC might be a naughty gang of misfits, but there is no mystery who and what is behind the almost mythological chimera of state capture, in South Africa. You might say, yes: it's the Guptas Bros., that is: Ajay Gupta, Atul Gupta, Rajesh Gupta and Varun Gupta, who live in their lair, the Sahara Estate, in Saxonwold, Johannesburg, a.k.a. the Saxonwold Shabeen, and don't forget their up and coming honourary member, Duduzane Zuma. That of course forgets Zuma's wife, Bongi Ngema-Zuma, and his daughter, Duduzile Zuma. But, let's take it a step further, Malusi Gigaba was said to have captured several SOEs for the Guptas during his tenure as Public Enterprises Minister. He is also linked to them in media article after media article, along with Brian Molefe of Eskom fame, who seemed to resign/retire and then return to Eskom, in his same position, at the bright old age of +-51. To think, just a short time ago, Shaun Abrahams, the leader of the NPA (National Prosecuting Authority) was pushing prosecution against Pravin Gordhan for hiring back a retiree as a consultant ...

Shall we talk about Bathebile Dlamini (affectionately known for skipping out on commitments and events, and as 'resting drunk face', because citizens think she is often drunk, but this has been denied, so she must just look drunk)? Her activity with Cash Paymaster Services hasn't quenched her rising star in the ANC.

Or shall we speak of African National Congress Secretary General, Gwede Mantashe ... who just recently returned from a meeting with Robert Mugabe's Zanu-PF and others, where, according to Botswanan media reports, confirmed by Gwede Mantashe, they determined that the two major South African opposition parties, the DA (Democratic Alliance) and the EFF (Economic Freedom Fighters) were funded by America and a western plot, along with NGOs (charitable organisations), and hashtags on the internet, such as #ZumaMustFall, and of course, people who promote capitalism, and oppose communism.

South African opposition leader, Mmusi Maimane was detained in neighbouring Zambia, recently, had his cellular phone and iPad confiscated, was beaten up, and deported, despite a no-visa agreement between South Africa and Zambia. He was in Zambia to attend the trial of the country's opposition leader, Hakainde Hichilema, of the Party for National Development (UPND), who was charged with treason. Amnesty International accounts of the incident giving rise to the trial and arrest, 'The six were arrested on 11 April after they allegedly failed to give way to a Presidential convoy in Mongu district. They claim they were beaten, teargassed and pepper sprayed on their genitals by the police.' (26 May 2017) It seems Zambia's reason for opposing the entry of South Africa's own opposition leader was because they thought he was there to undermine the judiciary, by attending the trial. The move in South Africa and neighbouring countries to link opposition and dissent to treason, and plotting, is far from hard to notice. It is easy to remember the threat of a treason trial against Julius Malema, ruler of the Economic Freedom Fighters, just recently. ANC leaders who have spoken out about corruption in the ANC have received death threats. Just ask ANC MP Dr Makhosi Khoza, who has told of how betrayed she feels by the ruling party, due to silence over death threats. This isn't new. When Fezekile Ntsukela Kuzwayo, also known as Kwezi, laid charges of rape against Jacob Zuma, the AIDS activist and hitherto family friend of the now President, faced death threats, and an innocent confused with her was targeted for stoning. Fezekile Ntsukela Kuzwayo spent five years in exile from South Africa, after the ANC told her they could only guarantee her safety if she would recant about the rape. The late Fezekile Ntsukela Kuzwayo had a traumatic life, and died of natural causes.

What about hero of the moment, Cyril Ramaphosa, who used his position in the ANC to pursue his own business interests in Marikana, and along with other important figures in the party, purposely abused their cleverly worded BEE (Black Economic Empowerment) policies to build himself a business empire? Also, Cyril Ramaphosa, so praised for his sound business judgement, as a result of his BEE business empire, was quoted on a recent trip to Zimbabwe, as praising the Zanu-PF for their land redistribution program ... one which involved violent seizures of white owned land, saw 'War Veterans' never given title, and thus unable to get bank loans (banks are now required to take cattle as collateral), and which policies presided over the collapse of the Zimbabwean economy. Deputy President Cyril Ramaphosa, has also given a recent keynote address to the Black Business Council (BBC), linked by Pravin Gordhan with the Gupta brothers. In fact, Cyril Ramaphosa didn't start opposing Zuma properly until Zuma gave his support to his ex-wife, and alleged current lover, Nkosazana Dlamini-Zuma to succeed him. Cyril keeps calling for a formal enquiry into accusations of state capture, and yet media have repeatedly told him and all who will listen that this is well within his own powers to set up.

The Citizen reports, that the President has warned the NEC not to push him too far, that he was keeping quiet for the sake of the ANC, but that if ANC members continued to criticise him in public, he would no longer keep quiet. Other media report that the President accused the ANC members who supported the motion of no confidence in the ANC National Executive Committee (NEC) of being part of a western plot against him. The talk of a western plot which the ANC claim will eventually culminate in a military intervention, has been going on for a few years now.

A lot of the various monopolies on corruption openly alleged in media and by members of the ANC itself, link to benefits received by the ANC. This is the party which even in 2014 had already had Eskom suppliers replaced in the name of BEE, where Eskom claimed 'wet coal' was responsible for blackouts. This is the party linked to very many billions of Rands lost in the economy due to kindness to corruption, mismanagement, and a soft take on fraud. The opposition Democratic Alliance, once the anti-Apartheid Progressive Party, has been winning election after election on promises and deliveries of clean governance. Not much to ask, is it? Even the once dead on arrival Zulu nationalist Inkatha Freedom Party (IFP), of Mangosuthu Buthelezi, has been on a winning streak of late.

They may not make many newspapers, but over the years there have been many reports of hit lists, and murders within the ANC. Houses of members are burnt down, members are shot. Internal ANC violence has been common, as with important figures being charged and convicted for everything from common assault, to rape, to murder. The President has 783 charges of corruption outstanding against him, currently. The Constitutional Court has said that he has broken his oath of office.

A militant group of armed individuals in military-style fatigues, the MK (Umkhonto we Sizwe) has been allowed to prevent access, for years, to various parts of the country, against opposition figures and the general public.

The white middle class is currently a third of the size of the black one, in South Africa. Take all their jobs and wealth away, and you still cannot supply them to the many have-nots. BEE is estimated to have cost the economy billions in competitiveness. Imagine investing in a country and having to somewhat give away half your company? Imagine having to give preferential placements instead of hiring a top team. Black South Africans, due to lack of early childhood development, and schools which bring shame to the concept of education, seriously lag behind white South Africans in their ability to graduate university degrees they start out in, and forget about doctorates, if government and other statements of fact are to be believed. Labour laws demanding equality and non-discrimination in hiring already ensured fairness in the labour market, but ask anyone on the street or in the ANC, and they will say BEE is about something else, transformation, uprooting the 'evil' white man to replace him. But, in essence, it takes the form of a tax, and at least when it comes to big companies, the beneficiaries are often ANC linked. In the job preferential treatment area, it sees an extension of the welfare state. Companies are expected to hire, irrespective of skills, ability, etc, and to pay equally. As I wrote in 2014, this has often resulted in higher costs for companies, as they have to bean count and hire extra to get the scarce skills they need. Millions of jobs have been lost, as a result of South Africa's labour regulations, explicitly noted in the notice of downgrade to junk status. Both in the form of preferential treatment over merit policies, and in the form of laws which make it much harder to fire excess labour, and thus a big gamble to hire or invest in South Africa. Twenty years of such policies have seen South Africa's competitiveness deflate. Never mind the refusal to protect various industries, from poultry, to textiles, from far more competitive foreign markets.

In fact, South Africa is current number 2 on the misery index, a combination of unemployment and inflation figures. Only Venezuela, whose citizens are starving and lack basics such as toilet paper, beats it to the number one spot.

It isn't any wonder that leaks link Jacob Zuma to attempts to gain residency in Dubai, via his Gupta ties, whether these news items are true or not.

Emails which are alleged to prove that the Guptas controlled and took over the functions of the President vis-a-vis the Cabinet and other such things, have been leaked to media, with the Sunday Times doing an expose on these. Gert van der Merwe, the lawyer for the Gupta family has stated to media that if the emails were hacked, that he would advise his clients to lay criminal charges, and that he worries his clients' privacy rights may have been affected, but would have to see the emails to know. The Guptas officially call the emails 'fake news', the term du jour, since Donald Trump popularised it.

So, I ask you, dear reader, are you really even a little bit surprised that Jacob Zuma easily defeated a motion of no confidence brought against him at the ANC NEC, by Joel Netshitenzhe, with the support of Aaron Motsoaledi, Joe Phaahla, and Derek Hanekom, but with most NEC members backing Zuma by a landslide?

As for Radical Economic Transformation, falsely called inclusive growth, but with the same definitions given, it has been tried before. Replace White Monopoly Capital with the bourgeoisie, and you have Das Kapital by Karl Marx. Replace the royals and their allies with White Monopoly Capital, and you have Leninism and the Russian revolution. Never mind Mao's cultural revolution and the many lives lost. Most recent examples include starving Venezuela, where Nicolás Maduro maintains a death grip on the country, as it pursues similar policies.

So, I ask you, again, dear reader, are you surprised, and what of that motion of no confidence in parliament, even if it replaces Zuma with Ramaphosa, will that be enough? Investors say no, according to an article by Reuters. They have lost confidence not just in Jacob Zuma, but in the ANC. As for ratings agencies, they have made it clear that a downgrade was likely to be coming anyway, and they have set out their many reasons. Their faith in Pravin Gordhan to stave off collapse of the government into bankruptcy, had caused them to hold off a little bit. But, unless the government radically alters course, even replacing Zuma, or the ANC for that matter, won't 'save South Africa'. It's more than just people and politics, it's basic economics in a globalised world.

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