Sunday, November 5, 2017

Have a safe and sound Guy Fawkes Day with your pets and family.

Have a safe and sound Guy Fawkes Day with your pets and family.

On 5 November, 1605, a Mr Guy or Guido Fawkes, the son of Edward and Edith Fawkes, was apprehended, below the House of Lords, in Great Britain, with barrels of gun powder, which authorities believed he, and other plotting plotters, intended to set off.

This foiled plot prompted the authorities to issue a request for the people to light bonfires, with due mind to safety precautions, to celebrate the monarch's near escape.

Guy, then a mere 35 years of age, was hung, drawn and quartered on 31 January, 1606, at Westminster, on charges of high treason. He died of a broken neck.

Guy, in modern times has become a symbol of anti-authoritarianism, rebellion , and of anarchist causes, but, traditionally, today was designated a day to celebrate the survival of the British monarch.

For most, however, today celebrates the pride of Prometheus, best encapsulated in the words: 'man make fire', and, in more modern times, 'man make firecracker go boom.'

Happy Guy Fawkes.

Monday, October 23, 2017

Inappropriate and illegal payments and fees

I have been asked to write on a few illegal fee arrangements and setups which seem to be proliferating as of late.

The first is the creation of a retainer agreement. An attorney, in such an unethical scenario, is either paid a monthly retainer or a retainer at the beginning of the matter. The retainer is generally non-refundable and not based on services rendered. This is illegal. Blaikie-Johnstone v D Nell Developments (Pty) Ltd 1978 (4) SA 883 (N) is a key case as regards what an attorney can and cannot charge a client. It set out that an attorney may not charge by an arbitrary manner, such as on commission, but instead must charge based upon the basis of services rendered. The Contingency Fee Act has altered the common law slightly, allowing an attorney to charge either 25% of the total awarded or 100% in excess of their normal fee, whichever is the lesser, exclusive of costs. Note, that in contingency fee matters, a full record of work done is required, as it is either 25% or 100% more than the usual fee, whichever is the lesser, which may be charged.

It is improper to advertise your fees openly, such as on your website, as this borders on, or is an attempt to compare yourself with other practitioners. The norm is for a client to request what fees may be and to be informed of these.

There are two types of consideration, other than for costs incurred, that an attorney generally incurs.

Those where a tariff may apply, such as for civil litigation in the magistrates', regional and higher courts. In this case, an attorney may agree with their client to charge in addition to tariff. Mostly attorneys and clients do.

The second is where no tariff applies. Examples include appearances in the criminal justice system, general legal work, drafting of wills and contracts, appearances and preparation for appearances before other bodies and tribunals. This is usually done at a fee which is agreed.

Per Amlers on Attorneys, and Mort NO v Chiat [2000] 2 All SA 515 (C), the relationship between an attorney and client is one, the basis for which is mandate. This makes sense, as the very word attorney comes from the Norman French word for one who is appointed. In fact, while, in South Africa, locally, the word 'attorney' is defined to mean a legal practitioner in terms of the Attorneys Act, outside of our borders, an agent may be referred to as an 'attorney at fact', while a legal practitioner would be called an 'attorney at law'.

Per Amlers, yet again, and per Incorporated Law Society, Transvaal v Meyer [1981] 4 All SA 350 (T) an attorney has a fiduciary duty towards their client. Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Lebos 1985 (4) SA 341 (T) (also noted by Amlers), notes that an attorney further has a duty of care towards their client, their opponent, the court, and third parties. In fact, an attorney is expected to act honestly and with high integrity and trustworthiness in all their dealings.

For the purposes of this discussion, what is called a retainer in relation to advocates, a sum paid to one to not oppose one in any matters during the period covered, is not looked into. The new Legal Practice Act also seemingly allows for this.

Now, I have a consideration for you. If you are charging fees you are not allowed to charge, such as in terms of a monthly or initial non-refundable retainer agreement, and you state to your client that these fees are due, are you not perhaps doing further things, such as possibly committing an act of fraud? In fact, there have been many criminal law cases against attorneys for various infractions which are also covered by legal ethics. What is more, retainer agreements might also constitute touting, as it incentivises a client to only use that attorney's services.

Where an attorney has not been paid, they have a common law right of lien over documents in matters they have dealt with for a client. Any document an attorney may charge a fee as regards, not merely those they themselves have prepared, may be held under lien. This is according to Botha v EM Mchunu.

A conveyancer should only charge above or below tariff with permission of the law society.

Trust money is money an attorney takes purely for the mandate the client has given, and may be spent only for that.

'When trust money is handed to a firm it is the duty of the firm to keep it in its possession and to use it for no other purpose than that of the trusted. It is inherent in such a trust that the firm should at all times have available liquid funds in an equivalent amount. The very essence of a trust is the absence of risk. It is imperative that trust money in the possession of an attorney should be available to his or her client the instant it becomes payable. Trust money is generally payable before and not after demand.8

The Attorneys Act places an unqualified obligation on every practising attorney to keep a separate trust account and to keep all trust moneys in it until payment out of it to persons entitled to it, so that there are at all times sufficient funds in that account to fully cover all trust obligations.9 In a partnership (or professional company) all the partners are responsible for keeping proper books of account.10 An attorney's alleged ignorance of the provisions of the Attorneys Act indicates that he or she is unfit to practise as an attorney.11

[ ... ]

8 Law Society,  Tvl v Matthews 1989 4 SA 389 (T); Incorporated Law Society,  Tvl v Visse (1)
1958 4 SA 115 (T).
9 Attorneys Act 53 of 1979s 78(1).
10 Rheeder v Ingelyfde Wetsgenootskap van die OVS 1972 3 SA 502 (A); Incorporated Law Society, Tvl v W 1962 4 SA 559 (T). See also Incorporated Law Society, Tvl v K 1959 2 SA 386 (T); and Smith v Price 1988 1 SA 53 (W) in which it was held that an attorney with whom money had been deposited by a client pending the registration of immovable property into such client's name and who had undertaken to invest the same in an interest­bearing account for the benefit of the purchaser, could not excuse his failure to invest such moneys by justifying this omission on the grounds of the provisions of r 77 published under the Attorneys Act 53 of 1979s 74.
11 Natal Law Society v Vawda 1998 1 All SA 356 (N).'
(LAWSA Volume 14(2) 2nd edition, para 205)

There are in fact many criminal law cases involving incorrect handling of trust money, and the courts find it rather serious. You will be given a harsher sentence than a layman if you commit trust account fraud, for the same amount as they defrauded someone.

The law society sent out a recent warning to practitioners:

On 18 October 2017, in a notice to members signed by M J S Grobler, the director of the said law society, the Law Society of the Northern Provinces stated:

'2. PAYING ESTATES AGENTS’ COMMISSION IN ADVANCE
It has come to the attention of the Council that in some instances, members who act in conveyancing transactions, whether as the conveyancer or as a referring attorney, are advancing commission to Estate Agents in circumstances where all suspensive conditions have not been fulfilled and the transfer process has not yet been finalised.

Members are reminded that it is unprofessional conduct for them to advance commission to Estate Agents prior to the finalisation of the transfer process and members who do this will be subject to disciplinary action.'

Note that there are two instances, and not merely one, noted, where it is inappropriate to pay out the conveyancing funds, per the notice: 1) when all suspensive conditions have not been fulfilled and 2) when the transfer process has not yet been finalised.

Friday, September 22, 2017

The powers of a candidate attorney - can they represent clients in court?

The powers of a candidate attorney - can they represent clients in court?

If a candidate attorney has been granted their right of appearance for magistrates' courts, they may represent you in a magistrate's court on their attorney's behalf and on their attorney's instructions. They do have to work under the direct supervision of the attorney, and figuratively 'in their office'.

They can of course make some decisions on their own at court, where needed. This is often the case, as attorneys will, often enough, send their candidate attorneys, in their place, to court. A candidate attorney who has been one for long enough, or who has fulfilled some other requirements, may also represent a client in regional court, upon being granted a right to do so.

Articles of clerkship is a fixed term contract. While a candidate attorney is undergoing it, they can incarnate some of their principal's powers, acting as the attorney's tool and agent. For instance, I drafted wills, for my principal, and as checked and presented to clients by her, as a candidate attorney, as one of my many duties, back in the day.

The attorney is responsible for the actions of the candidate attorney, and in charge of them.

After they have finished their contract of articles or service, a candidate attorney ceases to be empowered to do the functions of an attorney until they are admitted as an attorney, at court, or for some reason engage in another contract of articles or service.

Nothing herein should be relied upon as legal advice. For that, please thoroughly brief your attorney, at a consultation, for such.

The difference between a lawyer, an attorney and a candidate attorney

A lawyer is anyone who does law for a living, from paralegals, to judges, to attorneys, to candidate attorneys, to advocates.

A candidate attorney is someone who has (generally) completed their LLB degree and who has engaged in a mandatory internship, known as articles of clerkship/contract of service, under the mentorship of an attorney. During this time, or after a practical legal training course, a candidate attorney is allowed to write the four board exams.

Once they have completed their 1-2-5 years of internship, depending on the type of articles they did, and once they have passed their fit and proper, and their board exams, a candidate attorney may apply to court to be admitted as an attorney.

Attorneys are allowed to give the general public legal advice, and to repesent them in courts of law, to draft wills and contracts for them, etc.

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)
a change in the marital status of a woman;
(b)
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
(c)
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)
a certified copy of the identity document or birth certificate of the applicant;
(b)
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;
(c)
where applicable, a certified copy of the marriage certificate of the parents;
(d)
where applicable, a certified copy of the death certificate of any deceased parent;
(e)
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—
(a)
by entering the altered forename or surname or assumed surname of the minor in the birth register; and
(b)
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.

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