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.

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.

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