Sunday 17 December 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 5 November 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 23 October 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 significantly 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.

Friday 22 September 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 represent them in courts of law, to draft wills and contracts for them, etc.

Thursday 21 September 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 14 September 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 13 September 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 10 September 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 27 August 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 29 May 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.

Saturday 8 April 2017

How international news media portrayed South Africa's 60 000+ #ZumaMustFall March

A look at Google news fills the screen with South African accounts of the march, so I used a less known news research engine to figure out how the world portrayed the march. Anti-Zuma sentiment is widely noted, but I will let you read the articles yourself. What fascinated me most was the approach of the New York Times, who used almost the exact same headline as they did when Jacob Zuma fired former Finance Minister Nhlanhla Nene (replacing him with loyalist Des Van Rooyen), much as he now fired Pravin Gordhan, replacing him with loyalist Gigaba, who like Des Van Rooyen, doesn't know a thing about finance.

We already know why Fitch and Standard and Poor's downgraded South Africa: they believe South Africa is being reckless with its economy and finances. Particularly vexing to the ratings agencies are: radical socioeconomic transformation, promises of land grabs, reckless management of State Owned Enterprises (SOEs), and government's promise to bail them out, slow economic growth, strangling labour regulations, and a cabinet reshuffle seemingly aimed at pursuing a left wing approach should the heavens fall. Much of what the South African government is able to do is based on its ability to borrow money. The Sovereign Credit Ratings agencies are a bit like a bar keeper saying you've had too much, or the credit bureau the bank checks before giving you finance. The two members of the trinity of ratings agencies think South Africa is a bad investment and a bad bet and a bad debtor. By giving us above speculative, above junk credit ratings in the past, they had for many years endorsed our economy. That is no longer the case: only Moody's has yet to downgrade us, and they have suggested it is coming. So, government will be less able to build infrastructure, service social grants, and maintain administration of the country. Your rands will buy you less, but your employers won't be able to give you a raise. Much of Africa can't woo investors, and relies on the International Monetary Fund for their needs, which fund likes to demand austerity in exchange for funding. It has clutches South Africa doesn't want to fall into, if it wants to pursue a pro-poor agenda, but those are the clutches we are headed to.

I will firstly note the headlines from 2017, with links thereto, and then I will note those from 2015. The 2015 quagmire ended when Pravin Gordhan was appointed as finance minister, and investors and creditors calmed down. His own firing seems less likely to have as passing an effect, because Zuma has stayed steadfast on his 2015 path, and fired dissidents instead of listening to them.

2017 articles:

'Thousands march in South Africa to demand Zuma resign' / Al Jazeera

'South African opposition, rights groups march against Zuma' / CNBC

'Anti-Zuma protests take place across South Africa' / BBC

'In South Africa, thousands from all races march against President Jacob Zuma, but unity remains elusive' / Los Angeles Times

'Thousands of anti-Zuma protesters march across South Africa' / Canadian Globe and Mail

'Skirmishes in Johannesburg as South Africans protest against Zuma' / Reuters

'Thousands March in South Africa to Demand Jacob Zuma’s Resignation' / NY Times (using near exact same title as 2015)

2015 articles:

Déjà vu? 'Thousands March in South Africa to Call for Jacob Zuma’s Resignation' 16 Dec 2015 NY Times #ZumaMustFall.

Déjà vu? '#ZumaMustFall: South Africans march against Jacob Zuma' 16 Dec 2015 BBC

Monday 23 January 2017

Ignoble Magic, the Origin of Law…

Ignoble Magic, the Origin of Law…

She’s a passionate figure, with dyed white dreadlocks. She is full of fire and gusto. In the video, published by UCT Scientist, of the encounter, she rallies against her enemy: science. If we are to understand the origins of science, in the ignoble past of taboo, charms, and so-called sympathetic magic, her views, while reprehensibly illogical, hold a lost logic in themselves.

Here is what she said:

'There is a place in KZN called Umhlab’uyalingana.'

'They believe that through the magic... you call it black magic,' she adds.

'they call it witchcraft...'

She asserts then that, 'you are able to send lightning to strike someone. Can you explain that scientifically because it’s something that happens?'

The Fallist, and leader of the Science Must Fall movement, as she became known across the country of South Africa, became famous overnight. She called for the scrapping, entirely, of Western science, in favour of magic.

Yet, magic has a lot in common with science. Sir James George Frazer, in The Golden Bough, claims that all magic is sympathetic magic, and that it can be divided into homeopathic magic – like affecting like- and contagious magic – the spread of elements of one thing into another. Sir James believed magic to be mere superstition, but also believed it utterly important in the development of our society.

An example of homeopathic magic is the voodoo doll, or effigy: what happens to the likeness is thought, with a complete faith, to happen to the victim. An example of contagious magic is the historical account that a Madagascan soldier would not eat a hedgehog, because hedgehogs are cowardly and curl up into a ball when attacked, and if he were to do so, he would most certainly become a coward. Likewise, a baseball player might believe that his sweat, on his dirty socks, from a past victory, will certainly allow him to win the next game, no matter how much his indignant teammates complain of his smell: the attribute of the socks, associated with past victory, is thought to be a charm by the sportsman.

Magic is thought to be the origin of many of the early religions. The Australian Aboriginals universally practiced magic upon arrival of the colonists, they did not however practice an advanced religion with a great priesthood. Societies at a more primal stage, universally, have taboos and charms, but many don’t have religion. Magic is absolute. If a person correctly does the ritual, there is no doubt in his mind that the magic will mechanically occur. Religion is a belief in intervention in the time-space continuum by beings which disrupt the mechanisms in the universe. To early man, the gods were merely invisible sorcerers. A magician may enslave these deities to his will, whether demons or gods, but a religious man seeks to approach them to please them, propitiation, in order to gain something of value from them. He also seeks to not displease them, lest a curse come upon him.

The 12 tables of the Roman Empire are the origin of law in Europe, and in places like South Africa. They would one day cause the Emperor Justinian’s Corpus Iuris Civilis to come about, the body of the civil law.

Yet, while setting out laws, the priesthood relied upon which day a suit was brought to determine whether plaintiff or defendant won. The Germanic tribes, who rediscovered some of Roman law would likewise use seemingly supernatural means to determine whether laws had been broken.

In Great Britain, from which South Africa gains its law of evidence, something called the ordeal was used, according to records, to determine the guilt of murderers. A loaf of dry, stale bread was given to the alleged killer, who was then to swallow it, after a prayer to the deity, asking to be protected or killed based on guilt. If the bread lodged in their throat and killed them, they were surely guilty. If the potential murderer survived, they were innocent.

Of course, the example of the ordeal actually is a rather sneaky one. It usually got it right.

A person who is nervous will not salivate as much, their mouth will become dry. Someone who believed they would be found guilty, and thus felt nervous, was sure to be killed by the ordeal. An innocent person, would trust the divine to hold them out as innocent.

Linda Rodrigues McRobbie, writing an article entitled 'The Strange and Mysterious History of the Ouija Board' for Smithsonian Magazine, on October 27, 2013, details the fascinating history of the 'talking board'.

While the bible might condemn necromancy, and one need only look at the tragic example of King Saul for this, when the Associated Press, in 1886, reported that boards similar to the Ouija board were becoming popular for communing with spirits, mainstream American Christians tended not to see anything wrong with talking to the other side.

In 1890, Charles Kennard, from Baltimore, Maryland, and his four investors, including an attorney named Elijah Bond and a surveyor called Col. Washinton Bowie, set up the Kennard Novelty Company. Elijah’s sister, Helen Peters, was quite into spiritualism (communing with the dead), and asked the board what it itself was to be called, it is reported to have replied: 'Ouija'. When asked what Ouija meant, it said 'Good Luck'. It was later 'proven' to work when Helen demonstrated its efficacy by revealing the name of a patent office official. It was thus given its patent and went on sale. Elijah, being a lawyer, likely knew the name of the patent official.

Helen admitted in a letter that when she asked the Ouija board what to call it, she was wearing a locket with a picture of a woman above her head. It was likely one of women's activist, Ouida, whom she is known to have admired. Modern studies of the talking board, find it is likely ‘effective’ due to a scientific principle, rather than due to magic. With the release of the Exorcist, the Ouija board became a gateway to Satan, and its audience changed from average Americans, to those wanting a taboo thrill. That is not to say that the talking board did not instruct the odd person here and there to murder people, which American archives show it did, and that they did.

The Ouija board works based on something called ideomotor action, subconscious movements of the human body which we would not notice if we were not told that they came from somewhere else, whether other participants in the bizarre game, or ‘the spirits’.

As the Smithsonian, in the late 2013 article, relays: ‘Two years ago, Dr. Ron Rensink, professor of psychology and computer science, psychology postdoctoral researcher Hélène Gauchou, and Dr. Sidney Fels, professor of electrical and computer engineering, began looking at exactly what happens when people sit down to use a Ouija board.’

'Their initial experiments involved a Ouija-playing robot: Participants were told that they were playing with a person in another room via teleconferencing; the robot, they were told, mimicked the movements of the other person. In actuality, the robot’s movements simply amplified the participants’ motions and the person in the other room was just a ruse, a way to get the participant to think they weren’t in control. Participants were asked a series of yes or no, fact-based questions (“Is Buenos Aires the capital of Brazil? Were the 2000 Olympic Games held in Sydney?”) and expected to use the Ouija board to answer.

'What the team found surprised them: When participants were asked, verbally, to guess the answers to the best of their ability, they were right only around 50 percent of the time, a typical result for guessing. But when they answered using the board, believing that the answers were coming from someplace else, they answered correctly upwards of 65 percent of the time. “It was so dramatic how much better they did on these questions than if they answered to the best of their ability that we were like, ‘This is just weird, how could they be that much better?’” recalled Fels. “It was so dramatic we couldn’t believe it.”

'The implication was, Fels explained, that one’s non-conscious was a lot smarter than anyone knew.

'The robot, unfortunately, proved too delicate for further experiments, but the researchers were sufficiently intrigued to pursue further Ouija research. They divined another experiment: This time, rather than a robot, the participant actually played with a real human. At some point, the participant was blindfolded—and the other player, really a confederate, quietly took their hands off the planchette. This meant that the participant believed he or she wasn’t alone, enabling the kind of automatic pilot state the researchers were looking for, but still ensuring that the answers could only come from the participant.

'It worked. Rensink says, “Some people were complaining about how the other person was moving the planchette around. That was a good sign that we really got this kind of condition that people were convinced that somebody else was there.” Their results replicated the findings of the experiment with the robot, that people knew more when they didn’t think they were controlling the answers (50 percent accuracy for vocal responses to 65 percent for Ouija responses). They reported their findings in February 2012 issue of Consciousness and Cognition.

'“You do much better with the Ouija on questions that you really don’t think you know, but actually something inside you does know and the Ouija can help you answer above chance,” says Fels.'

Hypnosis, likewise, is sometimes able to gain details in the subconscious that we are unaware of.

The Ouija board, like the Ordeal, is so popular, because, due to a hidden scientific principle, it is actually effective. Magicians and sorcerers of old had to be accurate in their predictions and their use of magic, or they would be exiled or killed. The kings of Mexico would promise to bring rain and to perform other supernatural duties. Others still, such as in Britain, were thought to be able to cure disease. A sorcerer who brought the rain gained power and wealth from his contemporaries, one who, for some unbeknownst reason, wasn’t able to, one year, was lucky if he or she survived.

It is believed that movement from superstitions such as those in sympathetic magic, which develop inevitably into charms for good fortune, or taboos which bring forth evil, towards science, came from the efficacy of some forms of magic. Dousing the arrowhead with poison inevitably brought game down quicker. Living in rain plains brought more assurance of rain. Understanding real signs in the sky and elsewhere of drought meant that a rain maker was more likely to be employed and not murdered.

Those who engaged in using lightning to kill enemies, like the Fallist’s heroes, might instead simply settle for any sort of death when the lightning proved ineffective, and might tell a customer to prick their enemy with poison or pour it in a drink.

The Temple of Apollo of the Oracles of Delphi, was located over natural gas, which is hallucinogenic. The priestess who went into a trance would utter nonsense, which her assistants would translate, sure it was divine. They themselves were subconsciously aware of many things in the world, as everyone brought their problems to the Delphi temple. While believing it was magic or rather religion giving them answers, they in fact had the same sort of subconscious knowledge that practitioners of the Ouija board do. Magic which works brings its magicians good luck, and magic which works tends to be magic based on science.

So, how does this relate to law? Even our scientific rules originate in us as children as taboo and as charm. Jump from too high and you will be hurt. Touch the stove and you will surely be burnt. After a while it becomes more specific: jump too high and land incorrectly and you will be hurt, touch a hot stove and you will suffer burns, but you may not suffer burns if you run your hand under cold water for ten minutes immediately afterwards.

In South Africa, the tribal chiefs gained their power due to witchcraft. They promised their tribes they would protect them from witches, and were given the power to allocate or remove land from their followers. In North Africa, the opposite happened. People even crucify cats believing they may be witches, yet the great leaders, since times immemorial, in much of Africa, have surrounded themselves with supposedly powerful sorcerers, or been so, themselves.

As I wrote on the Ebola epidemic in 2014:

Those who enjoy the works of JRR Tolkien, will be familiar with a scene where Gandalf the Grey is treated with deep suspicion, because he always comes where something is wrong. The people thought perhaps he was the cause of the wrongness. He was merely there to try and prevent it. One of the great written linguistic traditions of humanity comes from China, where the written work came from omens in bones. Signs of the supernatural can pervade human thinking. During the plague it was believed that spraying oneself with toilet water could spare one from the disease. Of course, toilet water, refers not to something present in a toilet but a certain form of low scented perfume, also known as eau du toilette. People believed that foul smell itself spread the horrid disease, rather than only being a symptom of it. Belief in vampires also came from that period, the plague dead often appeared to move in their state of decomposition.

Media have relayed how African villagers see a white person and go running away in fear, shouting ‘Ebola Ebola.’ With doctors unable to treat victims and ordinary nurses and others claiming to have a cure for Ebola, the virus has spread further and further.

If your witch doctor tells you not to go to the well by the banana tree, and you believe he is a true witch, then you will treat that well as anathema. A king or chief who promises his subjects his protection, must account for when bad things happen to them, whether due to his failure, or due to that of his witch doctors. Witch doctors, priests, seers and sorcerers are powerful, they may throw bones and determine that you raped or murdered someone, or that you need to be sacrificed to the gods, or even in one of the recorded cases, to a tree.

Research has found that ancient religion destroys the democracy of early people, where everyone is answerable to themselves, and in turn brings about hierarchy, the very basis of civilisation in any citified settings. This hierarchy is more pronounced, where human sacrifice is practiced, and research shows that it is mostly those from lesser status who are the victims of the sacrifice.

Just as the Roman Law which has become enshrined in the laws of continental Europe, and heavily influenced the laws of the rest of the world, originated in the charms and superstitions of certain days, and in the religion of the Romans, international law has its roots in the laws of Christendom, the laws governing actions between Christian nations. Law inevitably begins in either magic or religion, and gradually generally gains a more secular character.

Have you ever said to yourself: but I’m a good person? Or said to yourself, he is a bad person, he will get what is coming to him. What about those preachers who claim that natural disasters are punishment? Do you believe in karma? In comeuppance, in justice? There is a fine line between expecting something to happen, and making it happen, because it is expected; after all, when we refer to what should be, we refer inevitably to what is expected to be. It is rather embarrassing to not have your expectations met, isn’t it?

You see, being a good person is a charm, and being evil is a taboo. We instinctively believe that the universe is out to get bad people. If you murder, or rape or pillage: you will be hurt as a result. If it doesn’t happen, it is because we don’t see it happening, or it must inevitably happen in a next life or afterlife.

When we engage in the correct rituals, when we treat our fellow man fairly, and avoid doing that which is taboo and do that which is charm, we expect to live a good life. When, however, something bad happens to us as a good person, we either lose faith in our charms and taboos, or we become angry, sad, disappointed, etc. There is a reason we shame ourselves when we are victims, or shame others, and it is an ignoble one.

Rather than seek out the, it turns out after our bad luck to be false, witch doctor for a satisfactory killing in which he is to be the victim, we tend to get angry with the person who does not adhere to the same charms and taboos as we do. If being a good person means that good things must happen to us, because we did all the right charms, and avoided all the right taboos, then we must be compensated when evil happens to us, and what better source of that compensation that the offender who engaged in taboo, and thus will in any case have evil happen to him. Why shouldn’t that evil be put to use to help us, the victim?

This is the origin of restorative justice. John raped Mary, in the Brazilian Amazon, therefore John must give Mary a wild pig to eat with her family in order to restore her to a better life. Not that just by western standards, is it? Or Jacob Raped Mara, in ancient Israel, therefore Jacob must support Mara’s material needs as his wife for the rest of his life (never mind that being around him might be traumatic for Mara). Restorative justice is what, in South Africa, we call delict, and what, in the United States of America, they call tort.

A fascinating study looked into standards of fairness across cultures. ‘A’ was given an amount of money, let’s say 100 $US, and told to offer ‘B’ a portion of it. If ‘B’ accepted the portion, then they both got to keep their shares. If ‘B’ rejected the offer, both lost out. In the Western world, it tended to be offers closest to 50% which were accepted. In other parts of the world where gift giving for favours is common, the split most accepted was unjust by western standards. Imagine accepting something like just 10% as just, doesn’t it anger you, would you really offer ‘B’ something like 90%? And in other parts the opposite was true, and the receiver was happy to get scraps. Justice was not an absolute. Oddly, in the west, an offer of say 70% to the other, would still be rejected. ‘B’ felt that he or she was being bribed and rejected the 70% they could have had, and denied ‘A’ his or her 30% as a result. The same rule went with the standard amounts of other cultures. It was, essentially, taboo to take more or less than what was just.

Of course, if those who engage in taboo behaviour are going to be punished by the universe anyway, then why shouldn’t the victim or the medicine man, or the tribal elders be the ones who inflict that harm. After all, if the universe in any case is going to hurt those who engage in taboo, then what wrong is there in helping it along, surely you yourself won’t incur taboo by that? Is this not the origin of the vigil ante, and of the court of law? This is the origin of the criminal justice system.

Classical jurisprudence holds essentially that the sovereign’s word is law, and that the sovereign is the figure that society habitually obeys. Sovereigns in the past have claimed to be gods, such as the Pharaohs of Ancient Egypt, such as Cleopatra, and the Emperors and Caesars of Rome, who had their own emperor worship cults to glorify them. Others claim to be powerful high priests or to be heads of national churches, such as the current monarchy of Great Britain, which rules the Anglican Church. Others claim to be great sorcerers. If a monarch has a divine right to rule, then disobeying their word is taboo, is bad luck, and obeying them is charm, is good luck. Rising up against a monarch who has the backing of God is rising up against God himself or herself.

Of course, while priesthoods in many ancient lands, and even in modern ones, such as Iran, hold great power, and keep their rulers in charge by taboo and charm, or religious curse or blessing, like in ancient, Rome, and like with what happened with science, laws tend to secularise over time.

I may break a mirror, walk under a ladder, and cross a black cat and not have any bad luck, but someone who murders another might have to account to their relatives. The sorts of things which religions all tend to commonly condemn are remarkably similar. Murder, theft, and so forth. That which is taboo, is also sometimes that which is unwise. That which is taboo for a leader to allow, can also be unbeneficial to him or her to allow. That which is taboo and superstition, but adhered to out of habit on the word of the sovereign, thus also becomes that which is rational to adhere to.

Thomas Hobbs in Leviathan, portrays the state of man in nature as savage, short-lived, and full of cruelty and calamity. He seeks to make such a state taboo, in order to justify overreaching statist forces of his time. In truth, the state of man in nature is well known. People in nature often interact with other primitives in a manner which is respectful. It is when they start to appoint chiefs and chief sorcerers, that the violent nature of man begins to emerge.

Modern jurists tend to point to natural law: to that which can be reasoned to be wrong in a rational manner: murder, theft and so on. Yet, even at the stage of mere taboo, law remains law. The refinement to adhere to rationalism, and to ensure the longer existence of the taboo, as it is a rational taboo, is merely what happens to law over time.

Have you ever disobeyed a taboo, and felt a great joy when some evil did not immediately strike you down where you stood? Habitual criminals can become addicted to the high that comes with getting away with breaking the law. If you break a law and evil does not befall you when you expected it to, then you have defied a taboo. Perhaps this gives you a sense of your own worth, of your power.

Others break a law and expect to be caught and punished, they expect it as though it were inevitable.

Still others refuse to break any law, because they know they will surely be caught, whether due to extensive enforcement, ever vigilant enemies prowling about like lions after their prey, or due to taboo.

Those who obey the taboos and the charms of our society, often become furious with those who do not. After all, if such people get away with it, then perhaps being a good person is not such a charm, and being bad is not such a hassle. People who obey the law tend to feel the need to make sure crime does have a cost for the criminals, because otherwise the charms they follow and the taboos they avoid are all in vain.

Where disobedience is on purpose, the response tends to be anger, where it is unintentional, frustration.

Of course, bad things do happen to good people. Religion tends to differ from magic in that respect. The Buddha saw life as about suffering and thus created a plan to escape it to Nirvana. Jesus Christ, the Christian Messiah, confronted people who said those who were victims of a building collapse must surely be evil, in saying that all then alive (except him, being God), were equally deserving of any such thing, and is recorded as saying that God sends the rain on the good and on the bad, and that only God is good.

The truth, of course, is that many good people die terrible deaths. In Christianity, my own religion, these are called Martyrs. Jesus, himself, the founder of the Christian religion, died, tortured on a cross. Likewise, many evil people live long, enjoyable lives in the lap of luxury, much loved by friends and amidst happy fountains of descendants. The answer Christianity has to this is hell, where evil people are given their due, and perhaps purgatory, where almost good enough people are purified of their sins. Heaven, of course, is a just reward for a just life, and is where the martyrs go. If injustice is not punished, smitten even, and if moral living is not blessed, what good is there in living a good life?

To the religious, being evil is a curse upon yourself, while being good is a blessing. To the superstitious, being evil is a taboo, while being good is a charm. To the scientific, being good is wise, while being evil consists of doing unwise things. What is good after all, except that which leads to life, and what is evil, except that which causes death. In the Garden of Eden, Adam and Eve are said to have eaten from the tree of knowledge of good and evil, despite God warning them that they would surely die. Indeed, death is bad, and life is good: and it could be said that they gained that knowledge when they became mortal like the rest of us.

Many modern jurists fit themselves squarely into the third category. The law must be wise, or it is not law.

In truth, law based on taboo or curse is law, so long as it is enforced by an authority. Having knowledge of the law, much as magicians have knowledge of magic from their grimoires and books of shadows, allows one to use the law to one’s advantage, and to avoid being penalised by the authority, whatever it is, which enforces it.

The ancient Israelites boasted that their law, which included putting sorcerers, and fornicators to death, was much admired throughout the ancient world. Likewise, Western nations boast of their legal systems, and how rational and well thought out they believe them to be.

In truth, law is just law, it doesn’t have to be a just law to exist. Its origins are not in a contract to a commonwealth, or a rationalisation of nature’s truths. Law’s origins are in the way the human mind works, how we automatically believe that like breeds like, and that contact breeds contagion. Just as science has emerged from magic, rational law has emerged from taboo. This is not something to hide from or lament, for it is inevitably a good that from mere ignoble magic we have gained the great skeletal structure of human society, law.

Friday 20 January 2017

A considered reply to a ‘Plight of a Black Law Graduate’ who spent unlucky years seeking after articles of clerkship.

A considered reply to a ‘Plight of a Black Law Graduate’ who spent unlucky years seeking after articles of clerkship.

Law is a difficult profession. It requires an excellent memory, near perfect comprehension skills, an ability to deal with clients and opponents, and a good knowledge of several languages, and at the very least, a passing knowledge of English and Afrikaans, the languages most cases are written in, and in which the courts conduct their business.

South Africa has 11 official languages, practically speaking, this means that anyone can go to court and have their testimony translated into English or Afrikaans from these languages. However, the languages of the courts in South Africa are only the two aforementioned tongues.

In Britain, court was conducted in Norman French for many years. It is where the term attorney (appointed) comes from, and it also largely limited the profession to the upper classes who could speak Norman. You might have heard the classic ‘ey’ sound with which the British pronounce French words. This comes from Norman French. While conducting trials in French, the British courts would use Latin as the language of record. Most legal concepts have thus been rendered in multiple languages: Peace and quiet; Breaking and Entering; and so forth.

In South Africa, Latin, Dutch, Afrikaans and English, are the essential languages of legal discourse. While I write, I have a trilingual legal dictionary sitting next to me. It is that important to be prepared.

A misplaced comma can and has cost millions of dollars in legal cases, and contract work. A misspelling in a will or legal letter can be catastrophic. Law is a profession which takes no prisoners, and which vastly favours suitors from the upper class, and with elite private school education and accents. I, like many in my profession, speak Cultivated South African English, or Received South African English, a dialect almost identical to the Received English spoken by the British nobility. It is a widely-understood accent, and research shows that speaking clearly and being easy to understand, makes people believe you are more likely to be telling the truth.

I spend tens of thousands of Rands a year on up to date legal literature, precedents and so forth, and I have a wardrobe including bespoke suits of the required type for court, and robes which are quite literally the funeral wear of the semi-wealthy of the Holy Roman Empire. If I make an error, I have sworn an oath, and thus can be sued for my negligence, as can my firm. Law takes no prisoners as a profession. It has to be so.

As LAWSA puts it:

'The Emperors Leo and Anthemius in their advice to Callicrates, praetorian prefect of Illyria, stated in the year 469 AD: “Advocates who explain ambiguous questions which arise in the course of litigation, and who, by the ability of their defence, frequently, in both private and public matters, restore the fortunes of those who have been ruined, are not less useful to the human race than if they had preserved their country and their relatives by taking part in battles and receiving wounds. For We, do not think that those who are equipped as soldiers with swords, shields and cuirasses should be considered the only ones who protect our Empire, but that the advocates, also, who have charge of cases contend as soldiers and, trusting in the glorious power of eloquence, protect the hopes, the lives, and the children of those who are distressed.”' (Law of South Africa, Volume 14(2) - Second Edition Volume, Legal Practitioners, Advocates, General, paragraph 112).

In South Africa, there are two education systems, one which some White South Africans, and many Black South Africans, have for years slaved to keep their children in, that of the IEB private schools, and the other provided by the government. Despite not speaking English or Afrikaans at home, if a student wants to pass matric, it must be in English or Afrikaans, no matter which government school they attend. There are arguments about whether the local languages are developed enough to accommodate advanced English and Afrikaans concepts, however, loan words would likely suffice in that area, the diktat is more policy than anything else.

Even if students were not learning in languages not their own, they still receive vastly inferior education in most government schools, where educators likewise are hired to fulfil quotas rather than on merit, and where teachers are vastly underpaid as is. Students are taught in English by teachers who themselves struggle to articulate in the language, and standards of learning are also affected by a void in resources, and underinvestment in the future of students, never mind a lack of nutrition, and the fact many students miss out on early learning prior to school, which is shown to bridge the recorded IQ gap between rich and poor (which can also be bridged by better nutrient intake and by reducing stress levels by either exercise prior to classes, or by enhanced policing to create a safe environment).

Universities are instructed by the government to essentially engage in practises akin to usury. They accept students by the droves into university, who they know cannot afford to pay fees, and won’t afford annual increases. These students often have to work part-time, affecting academic performance, and also have the struggle that comes with the added stress of not being able to afford their fees. Universities have introduced tutorials, and have continuously dumbed down the teaching of law as a result, but even then, the students able to access the law as it really is are often those able to afford textbooks, again those from the upper classes.

I often found that many of my lecturers at the University of the Witwatersrand Oliver Schreiner Law School themselves did not understand their subjects, and struggled with the English language. I would tend in those classes to take typed notes from other students, with different lecturers, with the money to buy laptops, and exchange my own typed notes in barter. Plagiarism and misunderstanding of English continued to be a mainstay for many students, right through to final year. Students were unable to do basic referencing, which IEB students were taught in school.

A famous law graduate and one who also gained a postgraduate degree in Oxford, is Ntokozo Qwabe, who worked as a checkout clerk at Checkers while making his way through law school. Besides the racist, anti-British, anti-French and anti-White rants which made him an international laughing stock at Oriel College and beyond, he struggles with basic spelling and grammar. He still cannot spell the word ‘Africa’, which he spells as ‘Afrika’. I tended to be someone other students let read their essays after we’d submitted them. I remember one Constitutional law lecturer giving me a something like a 0% for a well-researched essay, while one which was poorly reasoned and full of spelling, grammar and other mistakes but written by a student of the right colour, was given high marks. Because I got such high marks on multiple choice and in the final exam, I still passed the subject with high marks, but it shocked me that my fellow student also passed. Their level of argument would have gained them a failure even at high school level in the tougher syllabus of the IEB. Yet, that was enough for them to pass, in a profession based on argument and language.

As I have shown before, one of the reasons that Black advocates are often not briefed has nothing to do with their merit and ability, and everything to do with the universities’ policy of pushing through law graduates who cannot write or speak effectively in either of the languages of the courts, and the BEE program which prioritises race, not ability. White students who get into university, achieve this despite their skin colour, and those who graduate are sure to experience discrimination against them by lecturers, and to still succeed.

This also applies to pupillage, if you are not Black, then you had better prove why you deserve it or you are out. Having very lax standards for people of one race, and extremely high standards for those of another, can force those of the other to try harder.

The best chefs are often male, precisely because the system opposes them, as with many fashion designers. When Rome put unliveable demands on the Phoenicians, they upped their game and tried harder. While the Black lawyers and advocates I know are top notch, those who are there purely due to their skin colour have poisoned the well for everyone.

I have often had to defend fellow lawyers who happen to be Black, for instance, on Facebook, where their fellow Black South African friends say they would not hire them because Black lawyers are not as good. I tend to respond and say ‘so-and-so’ is just as good as any White lawyer.

Jacob Bongani Hlongwane, writing in airs a letter (namely 'Plight Of A Black Law Graduate' [Which should properly be titled: 'Plight of a Black Law Graduate'], 5 April 2016) which he received from a reader of that publication, a nameless Black law graduate who had been attempting to gain articles of clerkship for two years at the time of writing. I think it is important, as it expresses incorrect and career limiting views which are often silently held.

Nameless, as we shall name him, has had it rough. He has been out of law school for two years and he hasn’t been afforded articles of clerkship. He cannot speak any Afrikaans, does not own a car, and says he cannot live on a R 3 000.00 a month intern salary. He sees all of these as structural obstacles designed to keep Black graduates out of the system.

My Afrikaans is far from perfect, but many important cases have been in Afrikaans, and I have often dealt with matters where everything important was written and communicated in Afrikaans. Asking that prospective attorneys be able to speak the two main languages of the legal profession, is not much to ask, and is logical.

Nameless specifically writes: ‘I stand corrected, but legal practice [sic, though I will not note his mistakes from here-on-out as there are many] is mostly concluded in English and thus it begs answers as to why the requirement to be able to speak Afrikaans, if a law firm’s clientele comprises of Afrikaans speaking individuals, I doubt it follows that they cannot speak English, thus rendering the Afrikaans requirement suspect and exclusionary.'

Yes, most Afrikaans people can speak English, but if a significant portion of clientele of a firm is Afrikaans, it makes sense for the firm to want their candidate attorneys to communicate with clients, to be able to read case notes and emails from clients, and to be able to conduct business as such. Also, pleadings and case matters are allowed to be in Afrikaans, and that candidate attorney would thus likely receive both correspondence from opponents in the language, and pleadings in it.

He goes on to say, again showing a very poor understanding of English: ‘The meagre salaries offered to candidate attorneys can be deemed exploitative at best and downright tantamount to slavery at worst. With a candidate attorney earning as less as three thousand rands per month.’

Which tells me that he has either not gained many responses, or has not looked at jobs websites, or has not sent his CV to many firms. In some parts of the country, candidate attorneys are paid low amounts like that, and sometimes attorneys can only afford that, but generally speaking, candidate attorneys are paid between R 5 000.00 and R 30 000.00 for their services.

In Johannesburg, candidate attorney positions are hardly ever advertised, that’s more of a Pretoria thing. If you want a position as a candidate attorney, it is best to get a copy of Horters, or download the contact details for attorneys in your area on the website of the local law society, and start mass mailing or e-mailing out your CV and letter of introduction. Such should be in PDF format, entirely free from any spelling or grammar errors, and should flow and read easily. Any spelling or grammar error, and firms tend to toss your CV in the trash. In the current competitive environment a candidate attorney aspirant should probably send their CV to at least 300 firms, which should get a good candidate an interview for every few dozen firms sent to.

Nameless has been without articles for two years and is working elsewhere in a non-legal position. In fact, he says: ‘An LLB degree without admission is worthless, legally impotent.’ This not only shows his poor understanding of words such as ‘legally’, but also shows his deep misunderstanding of the legal profession.

His misconception is unsurprising, as Nameless, despite his poor grammar and incorrect interpretation of what a lawyer is, and of articles, says quite clearly: ‘'When one studies towards an LLB the aim is mostly to become a lawyer. Either through articles to get admitted as an attorney two years later or serve pupillage and get admitted as an advocate a year later.'’

A lawyer is not just an attorney or an advocate. There are many legal jobs, from that of a compliance officer, to that of a legal adviser in a big company, to that of paralegal or legal secretary, to that of any number of positions. Most of these positions are filled by Black candidates, given companies’ needs to comply with BEE legislation which mandates discrimination. However, many of my White colleagues have gone that route with success. An LLB is also a shoe in to many non-legal jobs given the prestige associated with it, and can stead one well in management and upper level positions.

Many students, myself included, way back when I was a student, got out of university, and instantly signed up for practical legal training at the School for Legal Practice, which took a year off of our articles and better prepared us for the profession, as compared to those who went straight to applying for articles of clerkship. From there, we applied for positions and quickly got offers.

Nameless, in his despair, adds: ‘Here is the deal breaker, most law firms, whom I apply to on a daily basis, require an LLB Graduate to have own transport. Now, this is a deal breaker with a potential employer but then how do you begin to expect someone, a Black child, straight out of University to own a car? One can barely make ends meet and you are expected to own a car to be even considered for a shortlist.’

Own transport does not necessarily need to be a car, it can be a motorcycle, etc. The fact is, many candidate attorneys are required to act as messengers, serve, file, arrive at courts timeously and predictably, and to even be involved in evictions, etc. Without reliable, efficient, transport you cannot do the job of the average candidate attorney. It is of course possible to be a candidate attorney and not own or rent a vehicle, I know many who are in just that predicament. They use public transport to get by, and take the bus or taxi to and from courts etc. It is possible, but it is a whole lot more difficult.

Nameless further notes: ‘Then there is an issue of serving pupillage, which mind you is far more difficult to secure than articles. The paralyzing prospect of doing pupillage for a year without any monetary compensation during the course of training is a deterrent for Black graduates to even apply, given our harsh economic conditions compared to our White counterparts, who can make do without a salary for that period owing to a secure financial background.’

Nameless seems unaware that he can apply for financial assistance during pupillage, and also seems unaware of the fact that pupillage is for people who have already been admitted as an advocate by the courts of law, and is really about joining the bar and then hopefully getting admission to a group of advocates. He also seems to be unaware that not all White people are wealthy. I know of enough impoverished Whites who worked their way through law school and are now admitted attorneys or advocates, or working in corporates. This sort of skewed logic does not bode well for someone attempting to enter a field based upon logical argument.

One of Nameless’s final remarks is: ‘The reality with Black and White graduates is that we are not the same and are treated equal in recruitment. Equal treatment of unequal people heightens inequality.’ I disagree with him, I believe many Black South Africans are as much a catch in the job market as many White South Africans. Many have faced his similar challenges and succeeded. No one owes him a handout, where they should be forced to take what he sees as an inferior candidate instead of someone capable of doing the job. Inequality is solved not by treating lesser candidates as greater simply because of their race. It is solved by making them equal through better education, and poverty ameliorating programs.

Then again nameless begins his letter by writing: ‘I bemoan the lack of transformation in the judiciary. We constantly read about the White and male dominated industry and skewed briefing patterns to the exclusion of Black Counsel. At the root cause of this is the inherent structural inequality that exists from day one of entering law School.’

Another use of an LLB besides becoming an attorney or advocate or assuming countless other roles, is to apply to become a judge or magistrate. Many of Nameless’s colleagues have, and they sit in various courts around the country. Granted, it used to be attorneys or advocates who became judges, and these had to be top professionals; this is no longer the case. If nameless wants to become a judge, there is very little standing in his way.

My experience when I stand or sit in court, is that most of the attorneys and advocates present aren’t White. Yes, the few White students who got top marks in school, allowing them into university despite their skin colour, and who either made a plan, or had family money to get them through varsity, despite every obstacle thrown in their way by government, often tend to get jobs. However, this is not due to unjust discrimination, though the skewing of the statistics tends to be. If White matriculants had an equal playing field, in getting into university, in being allowed to pass, in so much else, then you would likely see just as many drop out, etc. As it is, just getting to the level of graduate as a White South African, is a mountain to climb. Lesser White students, those in poverty, those who might not make it, are mostly weeded out long before first year of university, and if not, they struggle to make it through, given a system designed to exclude them and to make them fail.

My advice to Nameless is to look into what he is sending to law firms, into what his CV says, and then to send out his CV to hundreds of firms. He is sure to find something, the law itself demands discrimination against the White graduates he dislikes so much, and persistence will do him well. If his letter is anything to judge by, he might want to have someone proficient in English write his CV for him. His letter is full of inaccuracies and mistakes, and his misuse of idiom clearly marks him out as lacking proficiency.

Whether he is of a standard to ‘restore the fortunes of those who have been ruined, [as a member of a class of champions that] are not less useful to the human race than if they had preserved their country and their relatives by taking part in battles and receiving wounds’ or not, however, is a different story. Far harder than getting articles of clerkship, or into pupillage, is completing such, and passing the four board exams, and passing muster for a court to actually order that you be made an attorney etc. Even then, many attorneys struggle to find employment. They are after all in a profession where they have to compete against others in court and elsewhere, and which is not kind to the weak stomached, or incapable. Attorneys who make it in practice tend to be even matched warriors of a high calibre. He could gain that ability on the job or through further education, but if he cannot be his own champion, he will struggle to find it in himself to fight for others. Many candidate attorneys never become attorneys.

There are many highly able Black professionals who enter the attorney’s profession and flourish. However, those are not the ones who were pushed through school and university without being able to spell the word ‘Afrika’ correctly. They are the ones who really deserve their positions, and given that lawyers are the buffer which preserves our democracy, it is important that they be up to standard.

The profession of attorney, after all, has its origin in the profession of champion, of those who physically fought on behalf of others. Nameless needs to abandon his comfortable safe space, and get into the fray. The meek may inherit the earth, but they don’t become attorneys. And until he puts his best foot forward, Nameless will remain a nameless figure among the meek. And yes, it is acceptable English grammar to start a sentence with ‘and’, I blame South Africa’s education system if you weren’t aware of that, just as I blame it for the predicaments of Nameless, who genuinely seems to believe a law degree should be a ticket to success, rather than a weapon to be wielded to gain a much sort after prize.

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