Sunday, June 17, 2018

Signing a power of attorney

The word attorney, in the context of a power of attorney, means agent.

The Attorneys Act has changed its meaning in general use to the meaning of attorney at law, a person who can represent others at court. In fact, power of attorney almost always appoints an attorney at fact, someone to run business and financial affairs.

It can be drafted without an attorney, on itself from scratch or based on precedents, and precedents can be bought at most Waltons or at CNAs, but caution must be had in signing one. They can become irrevocable if drafted in certain ways, and some are best registered at the deeds office.

Anything giving that much power should preferably be drafted by an attorney. Certain institutions demand that any power of attorney over their contracts be signed in the presence of their chosen employees, to avoid fraud.

Also, if the person granting the mandate is losing their faculties, curatorship or appointment of someone to manage their affairs in terms of the Mental Health Care Act is advisable, the moment they have lost the mental ability to properly comprehend and manage their own financial, proprietary, and patrimonial affairs, as any agent has only the capacity of the person who has mandated them. The moment they lose that capacity, the power of attorney ceases to have legal effect.

Nothing said herein should be relied upon as legal advice. For legal advice, make an appointment with your attorney, consult fully with them and brief them on your matter in all its inherent nuances and details.

Tuesday, June 12, 2018

What makes an attorney successful, or at least capable of surviving the profession?

What makes an attorney successful, or at least capable of surviving the profession?

I have written on this from several perspectives.

Success can be found in the attorney's profession, but you will fight for your dinner every night. That is a big part of what we do. We have to be capable of dealing well with the unknown and handling stress.

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 an attorney. Rather then be a legal advisor or countless other jobs.

Lawyers, who survive the profession, mostly, are cautious financially, and build what they have up over time. A lot of lawyers are broke or financially distressed, some have to close up shop, despite early successes. Those who survive are careful which matters they take, and who they permit to be their client. It is a difficult career to succeed in, and many don't. It is vital to be discerning, and create processes and capacity before taking on too many clients if you start your own firm. Firms which grow too fast often don't last.

Those who do succeed have good and bad times, as the economy rises and falls. They learn to save for bad months, and not overspend on good ones.

They take deposits, and measure how much spending and work they do for a matter before paid for work already done, and don't keep working without regular payments towards what is owed, or to be owed.

When it comes to getting a job as a candidate attorney or your first job as an attorney, academic marks and achievements mean next to nothing to 90% of firms out there. They often only care if you passed, are humble, capable and have good English communication, spelling, and grammar, and good manners. Good work experience as a candidate attorney, also matters, for your first job as an attorney.

Being polite, emotionally intelligent, thorough, and ready to find answers, instead of assuming them, are vital traits for many.

Friday, April 20, 2018

Debt collectors cannot just do as they please in South Africa

Debt collectors cannot just do as they please in South Africa

Debt collectors are bound by the Debt Collectors Act (Act No 114 of 1998). They thus have to adhere to the code of conduct set out in the regulations thereto, and to the act itself.

In terms of s 1 of the act:

'“debt collector” means—


a person, other than an attorney or his or her employee or a party to a factoring arrangement, who for reward collects debts owed to another on the latter’s behalf;


a person who, other than a party to a factoring arrangement, in the course of his or her regular business, for reward takes over debts referred to in paragraph (a) in order to collect them for his or her own benefit;


a person who, as an agent or employee of a person referred to in paragraph (a) or (b) or as an agent of an attorney, collects the debts on behalf of such person or attorney, excluding an employee whose duties are purely administrative, clerical or otherwise subservient to the actual occupation of debt collector;'

In terms of s 14 of the act:

'Code of conduct.—(1) (a) The Council shall, subject to the approval of the Minister, adopt a code of conduct for debt collectors and shall publish such code in the Gazette.

(b) The code of conduct, and any amendment thereof, shall be submitted to Parliament within 14 days after publication thereof in the Gazette.

(2) The Council may, subject to the approval of the Minister, amend or repeal the code of conduct adopted by it: Provided that such code shall not be wholly repealed by it, unless it is simultaneously replaced by a new code of conduct for debt collectors so adopted and approved by the Minister and, provided further, that the Council shall publish any such amendment, repeal or replacement in the Gazette.

(3) The code of conduct drawn up or adopted by the Council and published in the Gazette shall be binding on all debt collectors.'

What follows is an extract from the code of conduct, and an extract from the act, both setting out some of what debt collectors can and cannot do:

'(2) A debt collector, in the process of collecting a debt, shall have due regard for the person, the property and the civil rights of a debtor, and shall ensure that any action taken against a debtor does not humiliate, threaten or cause distress to such a debtor.

(3) In collecting or attempting to collect a claim a debt collector shall not—


collect or attempt to collect for a creditor money in excess of the amount owing by the debtor to the creditor, except for interest and costs legally recoverable;


misrepresent the true nature of his or her business, or threaten to institute legal proceedings, whether civil or criminal, if there is no intention to carry out such a threat;


utilise a communication which simulates legal or judicial processes;


threaten violence or harm to the debtor, those related to him, or his or her or their property;


use obscene, defamatory or threatening language when communicating with a debtor or persons related to him;

( f )

communicate with a debtor when his or her legal adviser has notified the debt collector in writing to communicate with the legal adviser;


abuse or intimidate a debtor in any manner, whether orally or in writing, in order to induce a person to pay a debt;


call on a debtor, or park in front of a debtor’s residential or work address in a vehicle which is conspicuously marked in any way that discloses its purposes and whereby the debtor may be embarrassed;


make telephone or personal calls or send written communications which may constitute excessive harassment of the debtor, his or her spouse or any member of his or her family;

( j)

make telephone calls or personal calls for the purpose of demanding payment of a debt on a Sunday or between the hours of nine o’clock in the evening and six o’clock in the morning on any other day, unless the debtor or his or her spouse requests the debt collector to do so;


engage in any other excessive conduct which can reasonably be expected to harass the debtor or persons related to him or her;


disclose or threaten to disclose information which could adversely affect the debtor’s reputation for creditworthiness, knowing or having reason to suspect that the information is false;


initiate or threaten to initiate communication with the debtor’s employer prior to obtaining final judgment against the debtor, in order to exert pressure on the debtor, although this does not prohibit a debt collector from communicating with the debtor’s employer solely to verify employment status or earnings or where an employer has an established debt counselling service or procedure;


communicate with an employer, acquaintance, friend, relative or neighbour of the debtor, unless such a person stands surety for the debtor, or unless it is to obtain the debtor’s address or telephone number;


disclose or threaten to disclose to a person other than the debtor or his or her spouse if also liable, information concerning the existence of the claim, except through proper legal proceedings, although this does not prohibit lawful disclosure to another person of such information, provided the debtor is notified of such communication;


disclose or threaten to disclose information of a debt which with valid reason is disputed by the debtor, without disclosing the fact that the debtor disputes such debt;


give to any person, by implication, inference or express statement, any false or misleading information that may be detrimental to a debtor, his or her spouse or any member of his or her family;


give, or threaten to give, by implication, inference or statement, to the person who employs a debtor, his or her spouse or any member of his or her family, information that may adversely affect the employment or employment opportunities of the debtor, his or her spouse or any member of his or her family;


make a demand for payment of an account by telephone, personal call or in writing, without indicating the name of the creditor to whom the debt is owing, the balance of the account and the identity and the basis of the claim of the person making the demand, or


commence or continue an action for the recovery of a debt in the name of the debt collector as plaintiff, unless such debt has been ceded to the debt collector in good faith.' (GNR.663 of 16 May 2003: Council for Debt Collectors issued in terms of s 14 the DEBT COLLECTORS ACT NO. 114 OF 1998)

'15. Improper conduct by debt collectors.—(1) A debt collector may be found guilty by the Council of improper conduct if he or she, or a person for whom he or she is vicariously liable—


uses force or threatens to use force against a debtor or any other person with whom the debtor has family ties or a familial or personal relationship;


acts towards a debtor or any other person with whom the debtor has family ties or a familial or personal relationship, in an excessive or intimidating manner;


makes use of fraudulent or misleading representations, including—


the simulation of legal procedures;


the use of simulated official or legal documents;


representation as a police officer, sheriff, officer of court or any similar person; or


the making of unjustified threats to enforce rights;


is convicted of an offence of which violence, dishonesty, extortion or intimidation is an element;


spreads or threatens to spread false information concerning the creditworthiness of a debtor;

( f )

contravenes or fails to comply with a provision of the code of conduct contemplated in section 14;


contravenes or fails to comply with any provision of this Act; or


behaves or acts in any manner amounting to conduct, other than that mentioned in paragraphs (a), (b), (c), (d), (e), ( f ) or (g), which is improper in terms of a regulation.

(2) The Council may in the prescribed manner investigate an allegation of improper conduct by a debt collector submitted to it in the prescribed manner or have it investigated in the prescribed manner by a committee of members of the Council or by a person or persons nominated by it: Provided that a debt collector whose conduct is being investigated shall be afforded the opportunity, either in person or through a legal representative, of refuting any allegations made against him or her.

(3) If the Council finds a debt collector guilty of improper conduct, the Council may—


withdraw his or her registration as a debt collector;


suspend his or her registration for a specified period or pending the fulfilment of a condition or conditions;


impose on him or her a fine not exceeding the prescribed amount, which fine shall be payable to the Council;


reprimand him or her;


recover from him or her the costs incurred by the Council in connection with the investigation;

( f )

order him or her to reimburse any person who the Council is satisfied has been prejudiced by the conduct of such debt collector and to furnish the Council within a specified period with proof of such reimbursement; or


combine any of the penalties under this subsection.

(4) Any penalty imposed on a debt collector in terms of subsection (3) (a), (b), (c) or (g) may be suspended, either wholly or partially, by the Council on such conditions as the Council deems appropriate.

(5) The Council may in its discretion assign any of the powers conferred on it under this section, except a power referred to in subsection (3) (a), to a committee nominated by it in terms of subsection (2), and may rescind or vary a decision of such a committee.' (S 15 of the DEBT COLLECTORS ACT NO. 114 OF 1998)

Nothing herein contained should be relied upon as legal advice. For that, please see your attorney for a consultation.

Monday, January 22, 2018

Uncertainty about the use of Afrikaans in pleadings in South African courts

'English will be the only language of record in South African courts, Chief Justice Mogoeng Mogoeng said on Friday.

"Nobody is saying South Africans are not permitted to speak in their mother tongue in a court of law," Mogoeng told reporters at the office of the chief justice in Midrand.

"We are just saying, to facilitate efficiency and a smooth running of the court system, we would do well according to our experience... We [should] have everything that is said in a particular case captured in one language that is understood by all the judges - and that language is English," he said.

The decision was made during a two-day meeting held by the heads of courts, under the chairmanship of Mogoeng.' (City Press, 29/09/2017)

Everything said, traditionally includes the court record, often auditory in nature, and the pleadings. In that sense, it would seem all litigation must take place or be translated into English.

An early 2017 decision which seems largely confined to Saflii in being reported is one by acting judge, C R Jansen, in Pretoria, namely Lakey v Road Accident Fund (69036/2015) [2017] ZAGPPHC 245 (25 May 2017). It does not take into account the decision of the chief justice, which purportedly occurred a mere month before its final decision was announced, and which thus would be unlikely to apply to its pleadings, but nonetheless is entirely unmentioned.

Of language, it specifically says:

[31] The plaintiff s pleadings were drafted in Afrikaans. It is not appropriate to use Afrikaans in pleadings or in correspondence where other litigants involved are not conversant in the language, or where it can be foreseen that they may not be.
[32] In the present matter it was particularly inappropriate. The plaintiff testified in English and confirmed that his mother tongue is, in fact, English. More importantly, counsel for the defendant, Ms Kelaotswe, confirmed that she does not understand Afrikaans and that she can neither read nor write the language. Her position is most invidious. At the time of the trial she was still in the first year of her practice, and she informed me that when she receives Afrikaans pleadings or correspondence, she is compelled to have these translated at her own cost. This is most unfair towards her and is also a violation of what I consider the correct approach to be in respect of multilingualism in our courts.
[33] That multilingualism and tensions over the use of language is nothing new, is well illustrated in an insightful article written by Professor Gardiol van Niekerk entitled Multilingualism in South African Courts: The legislative regulation of language in the Cape during the Nineteenth Century.[12] The problem is as old as the law itself. There is a fair amount of literature available on the subject[13].
[34] The judicial branch of government has not yet framed a set of rules that deals with the issue of choice of language in courts. Neither the Superior Courts Act 10 of 2013, nor the Rules Board for Courts of Law Act 107 of 1985 seems to deal with this issue in any specifics.
[35] For the legislative branch Parliament has adopted rules as well as policies for choice of language use in the legislature[14], and for the executive Parliament has enacted the Use of Official Languages Act 12 of 2012 that creates the framework for implementing multilingualism in the national sphere of government[15].
[36] The absence of rules makes it difficult for a judge to rule on the issue without betraying his/her personal views on the matter. Apart from the rules of this court not dealing with the issue, I am not aware of any practice directive that deals with the issue. The references in Rule 4(11), Rule 60(1), Rule 61(1) and Rule 61(3) to language issues all seem to be obsolete provisions.[16]
[37] In the matter of Absa Bank Limited v Ferreira NO and Others,[17] Revelas J observed the following in respect of what the rules are m respect of the choice of language in pleadings and forensic conduct:
"[21] ...In my experience the practice adopted in courts in cases where persons prefer to use their mother tongue in preference to English is the following: a litigant may choose to litigate in any of the official languages but is not required to translate the pleadings and documents at own costf or the benefit of the party using a different language.
[22] Just as the defendants, in reliance on s30 of the Constitution have a right to litigate in Afrikaans, so the plaintiff has a right to litigate in English. There is no obligation founded in law, on the party who is dominus litis, to translate all its correspondence and process in ongoing litigation for the benefit of the defendant or respondent, as the case may be. It may be done as a courtesy or as an indulgence.
[23] The defendants have postulated the plaintiff's language policy with its customers as its choice of language when it litigates. These are separate issues entirely. The plaintiff is not obliged to conduct its litigation in Afrikaans and English simply because its opponent (as a customer) was dealt with in Afrikaans. Practical considerations ought to take preference when striking a balance between the right of a litigant to initiate litigation in the language of its choice, and the right of the party defending or opposing that litigation to use his or her language of choice. That means that neither party can prescribe to the other what language to use.
[24] If, for example, a person who only speaks isiXhosa, and who lives in a remote area in the Transkei, is cited as a defendant in civil proceedings drafted in English, he or she would not be entitled to insist that:
(a)    All documents served on him be in isiXhosa.
(b)   That all court proceedings be conducted in isiXhosa.
(c)    That the plaintiff's English speaking counsel argue the matter in isiXhosa.
(d)   That the magistrate or judge must conduct the proceedings and write thejudgment in isiXhosa.
[25] That would simply be impracticable..."
[38] The judge's summary of what appears presently to be the practice in South Africa is correct. However, the problem is that the practice has not been informed by a proper discussion within the legal community on this issue. I am not aware of any ruling made by any of the law societies or by the General Council of the Bar or any of its constituents in respect of choice of language. Yet I am aware of many informal and somewhat muted grumblings by practitioners about the insensitive use of Afrikaans in correspondence and pleadings. This case is a good example of the inappropriate use of Afrikaans.
[39] The problem with such a very sensitive matter, which is also a matter of constitutional importance, is that one cannot properly formulate a rule if there has not been a proper discussion of the issue. This discussion is dearly needed.
[40] It is respectfully not appropriate to revert to concepts such as dominus litis as the source of a rule for the choice of language. This may have been appropriate in the pre-democratic era, where there were only two official languages in South African courts, and all practitioners and judicial officers were required to be conversant in both. In such a system, it can easily be expected of any practitioner to read communications in a language other than his preference, but at the same time be entitled to present his or her case in the language of his choice, or, more appropriately, in the language of his client[18]. The dominus litis principle simply does not have the wherewithal to serve as the crucible for the recognition of the status of official languages in court procedings.
[41] Such a rule is simply not practicable in our system of multilingualism. In many instances, such as the present, it is insensitive, uncollegial and even socially obnoxious to use a language that may very well not be understood by the opposing party. On the other hand, all official languages must be used and developed to make their status as official languages real.
[42] In the ideal South Africa, practitioners and judicial officers will themselves be multilingual and would be able to accommodate most languages used in their particular region of the country. However, South Africa isn't anywhere near such a situation.
[43] I cannot take the matter any further other than stating that the use of Afrikaans in this matter for either correspondence or pleadings was most inappropriate. This type of litigation, as with most litigation, should be conducted in English as the only real lingua franca in South Africa. It also does not help that the professional bodies have not engaged in broader internal discussions and that they have not come up with specific rulings to assist practitioners.
[44] While the use of English as a default language is the only practical solution at present, I do not wish to be understood as saying that the use of Afrikaans or other indigenous languages in South Africa should not be used in courts or that their use should not be encouraged. To the contrary, the use of all 11 official languages in our courts should be something that the legal profession should positively support. It is a constitutional imperative.
[45] In ex parte matters, or in matters where it is known that all the parties are Afrikaans speaking, there is nothing inappropriate in the use of Afrikaans. In fact, it would be somewhat contrived and awkward not to use Afrikaans in such settings. The use of Afrikaans in such a context, where it does not offend or inconvenience, should be encouraged.
[46] The Afrikaans speaking community should also not be hamstrung because there appears to be a lack of language activism amongst speakers of indigenous languages. Language activism is deeply rooted in the socio-political fibre of many Afrikaans speaking South Africans, and this is most certainly not something to object to. Indigenous language speakers would do well to champion their constitutional language rights and to insist that it be used in courts as a primary language, and not only as a secondary translated language. But its use must be practical.
[47] The use of language in courts cannot be compared with the situation where an individual citizen insists on being served by an organ of state in the official language of her choice. In court proceedings, there are other people involved, such as opposing litigants, witnesses, judicial officers, assessors and attending public.
[48] Ultimately, the issue around language is something where an urgent discussion is needed in the legal community, and the inappropriate use of language in correspondence and pleadings can also not go without comment and some measure of censure.'

It seems there was an account in the costs order for both the use of Afrikaans and the use of the wrong court. The case still leaves practitioners met with Afrikaans pleadings in limbo. If a summons is in Afrikaans and no translation is provided, should the respondent or a litigant responding to pleadings which were in Afrikaans give notice of and set down an exception that the opponent's pleadings are vague and embarrassing and perhaps also do not set forth a cause of action? After all, in the language of records of the courts, English, this seems to be the case, if the chief justice's diktat is to be deemed valid by a judge in a particular case.

The matter is further complicated by whether the chief justice even had the power to declare as he did. AfriForum vehemently denies this:

'An apparent decision to make English the only language of record in SA’s high courts will have grave implications for access to justice.
On April 16, the Sunday Times reported that the heads of courts had decided to make English the only official language of record in South African high courts.
The heads of courts are all judges president of the divisions of the high courts under the chairmanship of Chief Justice Mogoeng Mogoeng.
Correspondence was sent to the office of the chief justice on April 21, asking for an explanation on how such a decision was made and on what authority. To date, we have not received a response, hence our decision to write this open letter.

According to subsection 8(3)(b) and subsection 8(6) of the Superior Courts Act, the chief justice is not conferred with the powers that determine the language of record in South African high courts, regardless of whether or not the chief justice enjoyed the majority of support from the heads of courts as required by section 8(5) (a).
It is alarming that this alleged decision was made public in a national newspaper. However, it failed to appear in the Government Gazette, according to our research. This suggests that there was no constitutional or legislative authority enabling the chief justice to change the language of record in high courts and that such a decision can only be made by the executive, subject to Parliament’s oversight.
According to the Constitution, the state must take practical and positive measures to elevate the status and advance the use of African languages. Furthermore, all official languages must enjoy parity of esteem. These are the provisions that you, as chief justice, along with the heads of courts, must enforce and protect. In this light, we question how having English as the sole official language of record elevates the status of African languages, and reverses their historically diminished use.
The alleged decision instead elevates English to a superofficial language, contrary to constitutional provisions and, in doing so, undermines the rule of law.
The alleged decision transitions from a de facto bilingual language of record to a monolingual position. This weakens the argument for a linguistically inclusive legal system and undermines the principles of linguistic diversity and the basic right of access to courts, as protected in the Constitution. It inter alia compounds the cost for African language mother-tongue-speaking civil litigants whose trials are prolonged because of the involvement of interpreters and, possibly, translation services.
An exclusionary decision
Moreover, we question how this decision is constitutionally sound, with regards to an accused person’s language right. We firmly believe the alleged decision discriminates unfairly against accused persons on grounds of language, in terms of section 9(3) of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act, with specific reference to the requirement to promote diversity.
We question why no public participation or meaningful engagement was undertaken regarding using English as the sole official language of record. What motivated the decision and whose interests does this serve? It is our opinion that this is not to the benefit of linguistic inclusivity and the promotion of multilingualism, but rather an exclusionary decision that hinders access to justice.
The alleged decision to remove Afrikaans (and, by implication, negate all African languages) alongside English as a language of record is conflicted in light of the dictum in the case of Ermelo (2010), where the Constitutional Court held that: “... when a learner already enjoys the benefit of being taught in an official language of choice, the state bears the negative duty not to take away or diminish the right without appropriate justification”.
The same principle applies to litigants. Therefore, on what grounds is this justifiable? Is it possibly based on the kneejerk reaction of Afrikaans being used as a tool of oppression and discrimination? If so, how do you justify retaining English, a colonial language? And if it is an oppressive status quo the honourable chief justice is trying to reverse, why not elevate the African languages to languages of record? This would be constitutional and transformative.
According to the 2011 national census, only 9.6% of the population speaks English as their mother tongue. We question whether Legal Aid SA’s language survey last year, in which statistics proved that English was not the primary spoken language in civil matters across all provinces, was considered. In fact, the primary spoken languages across the provinces for civil cases were recorded at 21% isiZulu, 20% Afrikaans and 16% isiXhosa.
Similarly in criminal cases, for litigants, English was not the primary language spoken by the majority of people in the nine provinces. The primary spoken languages in criminal matters were 24% isiZulu, 22% Afrikaans and 20% isiXhosa.
The English proficiency statistics in criminal cases illustrate that, in all provinces, litigants’ proficiency in understanding, speaking, reading and writing English is either poor or satisfactory. Were these statistics considered and, if so, how is the alleged decision justifiable against these numbers? Research has proven that multilingualism is a resource and that budgetary constraints are a red herring.
We are suggesting that the alleged decision is not transformative and transparent, in line with the values enshrined in the Constitution.
We further suggest that a process of meaningful engagement and consultation be undertaken with all relevant stakeholders before making a final recommendation to the executive.
Furthermore, it is suggested that the office of the honourable chief justice prepare a proper language management plan for the various high courts to accommodate the use of the official languages in the various regions, in compliance with constitutional prescripts. It presently suggests a misinformed top-down decision, which ignores South Africa’s multilingual reality.
Zakeera Docrat is a master’s student in African languages at Rhodes University;
Professor Russell H Kaschula chairs the Intellectualisation of African Languages, Multilingualism and Education at Rhodes University;
Cerneels JA Lourens is a director at Lourens Attorneys;
Alana Bailey is deputy chief executive of AfriForum;
Annelise de Vries is language planning coordinator at AfriForum;
Professor Monwabisi K Ralarala is director of the Fundani Language Centre at the Cape Peninsula University of Technology' (City Press, 17/09/2017).

And so, uncertainty, overall, remains. I would still consider that if no translation of the pleadings is provided by the litigant using Afrikaans, that this could be vague and embarrassing. What other rules can a party rely upon? The above decision does set out that it would be unjust to force the litigant who litigates in English to translate the other party's pleadings at their own cost, and seems to use the costs order to somewhat punish the user of Afrikaans for various means of it wasting time in the litigation. Notably, however, this decision does not take account of the diktat of the chief justice, and seems to interpret language in a completely different manner than such sets out.

Nothing said herein should be relied upon as legal advice. For such, please see your attorney, and fully appraise them of your matter in consultation with same.

Wednesday, January 17, 2018

What law firms look for in candidate attorneys seeking articles of clerkship

On a group I help to admin, where the public, attorneys, advocates, students, candidate attorneys, police, prosecutors, judges, magistrates, and pupils, all interact, I noticed a trend among some aspirant candidates, which is not helpful to them. I therefore said the following:

'Given some comments from our new influx of hope-to-be candidate attorneys, I feel a need to share this point again.

Most of you will not get articles. That is a statistical fact. Universities push out far too many law graduates for the positions available.

Your academic marks and achievements mean next to nothing to 90% of firms out there. They often only care if you passed, are humble, capable and have good English communication, spelling, and grammar, and good manners.

An employer who had sought out candidates for a job, has pointed out, on our group, something I see all the time, CVs which are out of date and show poor use of English. A lawyer is a wizard of English and of using it to benefit their client in relation to the machinery of the state (courts) and of other powers.

If you are passionate about law and want to make it your career, improve your English. But, please be aware that many employers and their employees are members of this group. People are offered and refused jobs based on things they say here. Members are already complaining about some of you by name, and praising others by name. Lawyers Rule is part of your job interview. You are already making a reputation for yourself.

This is not a student group where activism and challenging everything gets you points. This is the big pond where the big fishes swim. Be aware that you are damaging your career prospects when you are rude or wrongly disruptive. Be aware that you will face the lawyers here at court and in future cases.'

I added, in reply to one of the many comments:

'The word attorney actually comes from the Norman French word for one appointed to represent another. In early English courts, proceedings were in Norman French, and recorded in Latin. This, in a country which spoke English. Language is nothing more or less than a skill. We all do need to amend something sometimes, and do make mistakes, but that commitment to excellence in the language of litigation is important.'

At time of writing this, 99 people had liked or loved the post on the group, so I am also placing the information here.

Sunday, December 17, 2017

How to survive, as an attorney

Lawyers, who survive the profession, mostly, are cautious financially, and build what they have up over time. A lot of lawyers are broke or financially distressed, some have to close up shop, despite early successes. Those who survive are careful which matters they take, and who they permit to be their client. It is a difficult career to succeed in, and many don't.

Those who do succeed have good and bad times, as the economy rises and falls. They learn to save for bad months, and not overspend on good ones.

They take deposits, and measure how much spending and work they do for a matter before paid for work already done, and don't keep working without regular payments towards what is owed, or to be owed.

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:

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.

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