Tuesday, 13 November 2018
A client has appeared before you, a notary public. You drafted an ante nuptial contract, which they and their spouse-to-be, and two witnesses signed in front of you; they, you, and the witnesses, initialling the bottom right of each page in black ink, and all signing in the right spot on the last page. You signed, your signature appearing in a spot: below Quod Attestor and above Before me Notary Public, and placed your stamp by it, as well.
As you already have an account with the Deeds Office, having climbed up to the 26th floor of Marble Towers, and given in the requisite documents and forms to finance, and having gone through to data collection for them to record your signature and details as a notary, I will not note that process in this piece.
You opened your protocol register (a rather expensive book which can be bought at some Waltons stores, and other stores online or elsewhere) and filled out the number of the deed, the date of your clients signing it before you, that it was an ANC, the names of the parties, and then other details you deem pertinent, under comments, and then you stored all important documents in your protocol (likely a lever arch file with non-leaching plastic flip folder style pre-punched paper sheaths in it, so no important document gets punched), which is locked away safely, along with your protocol register. The deed number in your protocol register, either starting from 1 each year or from 1 in total, corresponds to the protocol number you then enter on the ANC itself.
When the registered ANC is back from the deeds office, the first signed original is what you still keep in the protocol register, this and not the registered ANC is deemed the original. In fact, it is a signed copy of the original and not the original itself which is to be lodged at the deeds office.
It is time to lodge and register your client's ANC with the Deeds Office, on the 26th floor of Marble Towers.
Before you jump in your car, and drive to the centre of town, you need to do a few other things first. You need to get a green cover for your ANC to be placed in. On the top left corner you should have your firm name and number, and a telephone number, or your firm stamp. The rest of the front and back sides of the cover should have standard required fields and typing on them, at the right places. You should be able to buy a hundred customized green covers from specialist stationers for about five hundred rand, including delivery.
Fill out your reference number, so they know what to put in any communications to you for that ANC. By code, next to 1, say H, and put the name of the first party, a forward slash, and the name of the second party, under name of parties, under firm number, put your firm number as assigned by the Deeds Office (and emailed to you by them) when you set up your account, and under batch, say 1. Under linking, in both boxes say 1. ANCs never tend to need linking.
On the front of your ANC itself, staple on a blank sheet of A4 paper, and put your firm number on the top left of this.
You will then need to put your ANC into its own green cover.
Your cover still needs a barcode, so the deeds office can charge you for the whole thing. You need to bring with a signed letter on your firm's letterhead, signed by a director, partner, or sole proprietor of your firm. Its heading should be along the lines of 'Representatives to apply for and collect barcodes at deeds office'. The signatory should set out who they are, and their position in the firm, and state that they authorise a specific person, stating that person's full names per their government issued Identity Document and Identity Number and that they specifically authorise them to apply for and collect barcodes from the deeds office. This should be handed in at the office where barcodes are allocated, and the representative doing so must present their government issued Identity Document when collecting such. You will probably get at least a sheet with a few dozen barcodes on it. You will need to sign, and they will record which barcodes have been given to you. You don't pay anything for barcodes until they have been used for registering a document.
You place the first barcode in the set on the bottom right of the front end of your filled out green cover. For notarial work you are unlikely to need to write anything on the back cover, which should merely have the standard writing etc on it. Nothing is written on the cover on its inside, where the ANC will be placed.
Take the cover, ANC within, to the lodgement counter. They will take the cover, ANC inside, and stamp it, enter it in their system, and take it from you.
Within about 5 business days from then, if all goes well, the deed will have gone through two examiners, and be placed in your pigeon hole, having been placed into prep. You can do a deeds office tracking at the same place you got the barcodes for about R 13.00, to see where your ANC is in the process. You will need to know what the barcode number is.
Once your ANC has entered prep, it is vital you execute it within 5 days of it entering prep. So, take it to the preparation desk, and ask for permission to execute the deed there, handing it over. Otherwise, the deed will lapse and won't be registered. They will not allow you to execute on the same day as asking to execute, unless there are some special circumstances and permission granted to you. It can be a good idea to set it down for execution for the next working day.
On the execution day, sometime before 10h30, you go in, go up to floor 26 in Marble Towers, as always, and go through to preparation to get your ANC, they having authorised your execution for that day. You then go through to a small computer, where you take out your pen and fill in the date next to date on the green cover, and sign to the right of that. They scan the barcode on the ANC, and take it from you.
Within about 2 days, it may be scanned in. Within 5 working days of your executing it, if you go in, and go to the distribution desk and ask if there is anything for firm (your firm number), they should be able to give you your ANC, which they will have stapled into its cover.
Take the ANC, bring it back to your office. Scan it in for your client after you undo the staple that holds it in its cover. A notary must keep an original of every deed executed before him, in his protocol. However, practice here seems to differ at times. It is the signed original which the notary is to keep in his protocol, the registered copy from the deeds office can be given to the client.
The cover will have stamps for lodgement, execution, for each of the two examiners and their groups, its scan, and a dated stamp from the registrar of deeds on the front. On the back there may be a stamp saying 'Final Black Book' and a date.
Inside, the ANC will have a stamp stating the fee the deeds office charged you (likely R319.00), a stamp saying 'registered' with a signature and a date, and a stamp with an H and Johannesburg on it, and the H number of the year (e.g. 111111/2018) on it. Your A4 sheet should also be in the cover, likely at the back.
You will later need to pay the deeds office for each ANC you register there with them.
For the clients, a letter to be handed to their marriage officer will need to be drafted before they wed, which can be any time after they sign the ANC before you as notary.
If something is wrong or right, the best way to find out is by going into the deeds office, and checking your pigeon hole and doing deeds office tracking. You don't tend to find out how things are going with your matter otherwise.
Nothing in this piece should be relied upon as legal advice. For that, make an appointment with your attorney.
Thursday, 1 November 2018
Tick Tock. The clock did stop.
Cause. Effect. Until the start.
A big bang, or a tiny grain of sand.
It matters not.
Go far enough back, there must always be a cause.
Something, a start, to continue to, dominoes, cause and effect.
But take infinity, call it X.
What happened before X.
What was the first cause of effect.
For something must have caused it too,
But nothing can have, there must be a first,
And this is it.
What is logic? Cause and effect.
To be logical, the foundation must be firm, it must be sound,
And that foundation must cause an effect, the specific effect, it must follow.
And yet, the entire universe is a non sequitur. It does not follow.
And neither science: cause and effect, can explain an effect without a cause,
And nor can magic: for magic is mechanical in its thinking, the precursor to science, it believed that one act, whether ritual or effective, certainly would cause another.
And whether a big bang, steady state, multiverse, or ever repeating loop, something must have brought it into being. A first knock upon the movement, the cause and effect we call time, for without energy, entropy would break the clock, even one in a circular loop. Without some outside cause for its effect, some source, all movement would stop.
What else is left? For time is cause and effect?
But then something not bound by time, must have had an effect. For, what caused X, what caused the first slight or great movement of time? The clock stops, for by its logic we know not its cause, the cause of logic, or time, of before and after, of cause and effect.
Either that, or logic, the patterns we observe as absolute, is neither universal, nor much but a precursor, like magic.
For the very first cause, logically, could not be an effect.
Sunday, 28 October 2018
He stood at the pulpit, above the altar, bright light reflecting off his head. His hands moved in an ornate dance as he spoke, like a cricketer practising bowling, or a rather camp drag queen in a pantomime. His voice relayed a great exaggerated excitement, as he shouted into a dead-still microphone, which somehow withstood the figurative spell of his hands and shouty tone.
The priest speaking to the thousand parishioner captive audience at tonight's Roman Catholic mass, at the church I attend, for me, displayed everything I avoid doing when public speaking.
Shouting alienates your audience, and causes a fight and flight response in them - they are unlikely to remember what you said, and high frequency changes in tone and passionate hand movements distract from your message and pretty soon begin to annoy an audience when you have to present to them for any real length of time: just ask parents forced to watch children's shows.
When I was still a teenager, I remember reading a book where an aircraft was in quite a bit of trouble. The air traffic controller communicating with the person flying the plane was portrayed as having an unnaturally calm and steady voice. Emergency line operators often adopt something similar. So do attorneys and advocates who regularly frequent the courts: they have a clear, crisp voice, nearing as close to non-accented speech as they can achieve, with a mouth achieving sounds in a firm but relaxed manner.
When I was doing Practical Legal Training after university, I remember sitting through the speech of a similarly passionate, or perhaps faux passionate speaker, who shouted her way through her presentation to the class, gradually turning off almost every member of her audience, with an aggression that was not assertive. The lecturer praised her boldness and passion, while the audience was captive, but not captured or captivated.
Something you learn when often speaking before people is to throw your voice, and amplify its sound without engaging in the growling tone of voice that is the essence of shouting. A good speaker gains volume, without aggression, and passion, without force. They allow their voice and message to resonate in hearts and minds, and calmly draw their audience in, as though they were speaking to each in attendance, person to person.
The large parish I attend on Sundays rotates different priests relatively often, and I often enjoy ruthlessly judging them. A similar advantageous game is to observe politicians before parliament, such as Prime Minister's Questions in the British House of Commons.
A lot can also be gained from watching the process and proceedings before court. You can often guess the seniority of advocates by how they present. The longer they have been at the game, the softer spoken, and yet firmer in what they say, they become. A lawyer in their element will present with good volume, a magical calm, and a crisp and clear voice which is easy on the ears, even when speaking for hours at a time. The power of their words is in their argument, and they tend to feel no need to growl along with it. Many a public speaker could learn much from court attorneys and advocates in this regard.
Monday, 22 October 2018
State intervention has never got rid of such imbalances. What has is integration and capitalism: e.g. the Irish in America.
Political power has never uplifted a group. South Africa is a good example: blacks earned less a year or so ago compared with whites than they did in 1993 compared with whites.
State intervention always hurts those at the bottom most. A free market always uplifts them best.
No amount of state intervention will ever make black South Africans as wealthy as white South Africans. However, let the state back off and the economy grow. Get rid of BEE and most of our labour laws and taxes. You will quickly see black South Africans get wealthier.
But as long as your focus is on bringing down the rich instead of getting out of their way so they can lift up the poor, we will always have black poverty in South Africa.
Within ten years, you might find less than 1% of the population is white. And, you might find South Africa is stuck in the same hole Zimbabwe is in, from which it cannot dig out: because their most productive and best educated citizens will not return.
So, you and all South African voters have a choice: do the whites in, and destroy their wealth, or ally with the whites, and help them cause a rising tide that lifts all boats: the sort of tide which will bring some black South Africans great wealth, and others a little wealth.
Up to you and up to voters, but holding back whites with merit holds back the economy to such an extent that it deeply impoverishes most blacks.
Wednesday, 10 October 2018
Published on 23 Sep 2018
Attorney, Marc Evan Aupiais goes through some nuances of the decision, looks at circumstances where people can still be arrested, and discusses the possibility that the decision constitutes judicial overreach. Nothing in this video should be relied upon as legal advice, for that consult your attorney at their offices, revealing all the nuances of your matter to them.
Published on 6 Jul 2018
Marc Evan Aupiais discusses the drawbacks and challenges of allowing mass immigration in welfare states and states with declining populations.
Published on 5 Jul 2018
As a one third tax on petrol and petroleum products bites South Africans where it hurts, Marc Evan Aupiais points out that the taxes on fuel don't actually get put to such use as to improve the lot of South Africans.
Published on 5 Jul 2018
Much of the problem with tender fraud is with tenders themselves, where projects are judged on paper, rather than on the track record of the person, natural or juristic, doing the actual job.
Published on 1 Jul 2018
With the current economy and the minimum wage for domestic workers. Most risk losing their jobs. National minimum wage may cost one to six million South Africans their jobs in coming months.
Video: The Road Accident Fund (RAF) is renting 300 office chairs for about R1666.00 per chair per month
Published on 1 Jul 2018
Marc Evan Aupiais discusses recent reports in media that South Africa's RAF is wastefully renting office furniture at an exorbitant rate, despite the levies to fund the bankrupt government fund biting into motorists' and consumers' pockets in a bad economic climate.
Published on 30 Jun 2018
The move has upset many South Africans who don't believe the country has the money to spend on renaming towns, amid corruption and poor service delivery.
Tuesday, 9 October 2018
Mboweni's own words perhaps show how positions in the current ANC are awarded not due to merit, but based on loyalty. Cadre deployment has been credited with the wholesale collapse of much of local government, with bankrupt state owned entities in vital parts of the economy, and with a shocking rate of joblessness. To boot, Mboweni's loyalty to the communist ideology of the ANC is beyond question. He is a public supporter of a National Democratic Revolution: a term which locally usually refers to impoverishing South Africa's 'colonists', and gradually introducing socialism. The NDR forms part of current official ANC policy. Mboweni is now Minister of Finance, after his predecessor, Nene, resigned, after it emerged Nene paid a house call to the Guptas, a family accused of having undue influence over the South African government during the Jacob Zuma presidency.
South Africa's economy has not been this bad since the end of colonial times. This, as the Centre for Risk Analysis of the Institute for Race Relations used South African Reserve Bank data to find that the economy was in the longest down cycle since 1945 (and thus the longest such cycle since independence from Great Britain).
South Africa's primary problems are well documented, with its labour relations the official worst in the world (ranking 137 out of 137 countries in the World Economic Forum - World Competitiveness Report), its union supremacist labour laws have made it a nightmare for businesses to run in the country. Companies find it next to impossible to fire employees who aren't the right fit, and will rarely hire an employee who does not have a previous employment record, leading to youth unemployment skyrocketing, and to most jobs requiring candidates with experience of several years to even be considered. The government has considered a national minimum wage as an answer to this: making it illegal for companies to hire employees for less than a certain amount. Unfortunately, companies are paying market rates for the sort of work often being done. As is often pointed out, the real minimum wage is zero: when the national one comes in, employees whose work is not worth the minimum wage to employers will be retrenched. This is what happened when it was introduced for domestic (household) staff. The real minimum wage is always zero. Yet, as government tries to enforce unsustainable pay for low skilled employees, unions have used very favourable labour laws and annual strikes to price their members and others out of the market.
In fact, speaking to the Joburg Indaba, Impala Platinum CEO Nico Muller, whose views are noted by Business Day to be shared by Harmony Gold CEO Peter Steenkamp, Anglo American Platinum CEO Chris Griffith and Lonmin CEO Ben Magara has, and have all, deemed labour intensive mining to have no future in South Africa ('Mining CEOs say deep-level mining is over in SA' by Allan Seccombe for Business Day on 5 October 2018). Future mines will be mechanised and involve mining machines moving shallow tons of earth in open cast mines. Miners blame rising labour costs, and spiralling electricity and water costs for the withdrawal, which will cost hundreds of thousands of jobs in the near future. Yet another mining charter seems set to blight the industry, and a Keynesian debt funded stimulus package will be aimed at uplifting black business, rather than focussing money anywhere it can help the economy, such as in tax reductions to drive growth. Black ownership and staffing requirements certainly have also hurt the economy dearly, as can be seen in more visible examples, such as the blight of state electricity company Eskom, which refused to do business with non-black owned entities, leading to massive price increases in electricity, and in the SABC's 90% local content policy under Hlaudi, both of which proved the point that choosing to force employment and business to be based on race or other 'accidents of birth', rather than market determined individual economic merit, is a sure way to damage an economy. Statistics show that when taking into account inflation, and the prices of basic necessities, South African wages have fallen by about 10% in the last ten years.
Against the wisdom of my Team, please don’t tell them this. It’s between us, I am not available for Minister of https://t.co/VmeiQvrvu7 cannot recycle the same people all over again. It is time for young people. We are available for advisory roles. Not cabinet. We have done that.— Tito Mboweni (@tito_mboweni) February 18, 2018
Unfortunately, South Africa's over-taxation of the economy and business killing policies and laws (such as enforced racist hiring laws, and limits to what white citizens can own), seem ideologically motivated rather than anything else. They form part of a National Democratic Revolution (NDR), a common socialist plan, where the colonisers are targeted, so that they lose everything they invested in the country, and communism takes. Unfortunately for white South Africans, the South African Communist Party has long identified them as the said colonists, and the impoverishment seems aimed at the local white population. However, that population, while making up only a third of the middle class (approximately those earning above about R15000.00 a month), make up the vast majority of the upper middle class and wealthy in South Africa, and account for a good deal of its tax payers and skilled workers. Killing off the wealth of the white population via a National Democratic Revolution, will inevitably kill the economy of South Africa altogether.
'The concept of a 'national democratic revolution' emerged from within Marxism-Leninism in its analysis of the unfolding national liberation struggles in the 20th century. The NDR has historically been understood as a revolution led by progressive motive forces (mainly oppressed and exploited) to defeat repressive and colonial regimes and build people's democracies, as both an objective in itself, but in circumstances also where, due to domestic or global balance of forces, such a revolution is unable to immediately proceed to socialism. This could be because the motive forces are either not strong or conscious enough to drive the revolution towards socialism or other objective factors pose a limitation to a transition to socialism.' Blade Nzimande, writing as General Secretary of the South African Communist Party in Volume 5, No. 66, 18 October 2006, Umsebenzi, for the South African Communist Party.
Mboweni strongly supports the National Democratic Revolution.
'THREE URGENT TASKS FOR THE NATIONAL DEMOCRATIC REVOLUTION IN SOUTH AFRICA!
1) The State must own 40% of all mining companies.This is easy to do. 2)The State Must create a Sovereign Wealth Fund for future generations from mining dividends. 3)A State Bank must be created URGENTLY.' Tito Mboweni tweeted at 1:58 AM on the 28th of April 2018.
THREE URGENT TASKS FOR THE NATIONAL DEMOCRATIC REVOLUTION IN SOUTH AFRICA!— Tito Mboweni (@tito_mboweni) April 27, 2018
1) The State must own 40% of all mining companies.This is easy to do. 2)The State Must create a Sovereign Wealth Fund for future generations from mining dividends. 3)A State Bank must be created URGENTLY.
South Africa, in appointing Tito Mboweni as Finance Minister, has a true believer in the NDR, at the helm of the treasury. Further curtailing of business and economic freedom won't help grow the economy, and government spending has never had a success story in South Africa, as it inevitably has taken resources from the most productive citizens, thrown these resources through a corrupt government system, and has usually spat them out to tenderpreneur businesses. As corporate tax cuts in America have demonstrated, cutting taxes on businesses causes them to raise employee salaries, and invest more in growth. South Africans have been taxed to an extent that tax revenues have reduced as taxes increased. Mboweni displayed a degree of economic illiteracy, by suggesting essentially a further 40% tax on mines.
As Gareth van Onselen, the Head of Politics and Governance for the IRR, and a Business Day columnist points out on his Twitter account: 'Honestly, the ANC must just put Julius Malema in charge of finance and be done with it. This charade is getting ridiculous.' (At 5:20 PM on the 9th of October 2018.)
Honestly, the ANC must just put Julius Malema in charge of finance and be done with it. This charade is getting ridiculous. https://t.co/oTSgY08WSD— Gareth van Onselen (@GvanOnselen) October 9, 2018
Julius Malema, the head of the local Marxist black supremacist party, the Economic Freedom Fighters (EFF), has been among those calling for hitherto Finance Minister Nhlanhla Nene to resign or be fired. Malema's party wants all land to be owned by the South African state, and has said he isn't calling for the slaughter of white people 'at least for now'.
South Africa has attempted to mix African and Western concepts of ownership, by maintaining the Homelands established by the Apartheid government, keeping them under the control of tribal leaders by means of legal instruments such as trusts. The people living in tribal lands don't have security of tenure, they don't own their land. The result has been economic devastation, as the land is worked by locals with a serf like status, easily evicted by tribal leaders. A similar wholesale waste of productive farmland would likely result from the EFF model for the future of South Africa.
Meanwhile, speaking today, as recounted by the official account of the Presidency, President Cyril Ramaphosa seems unaware of the terrible impact on the economy of the recent strike at the national Post Office, which saw it build up a backlog of months' worth of undelivered mail:
'As we deepen economic transformation and create new value streams in our economy, our postal services are poised to bring new goods and services to the nation, create new jobs, create new wealth and help us build an inclusive knowledge society.' (At 11:04 AM on the 9th of October 2018).
President #Ramaphosa: As we deepen economic transformation and create new value streams in our economy, our postal services are poised to bring new goods and services to the nation, create new jobs, create new wealth and help us build an inclusive knowledge society.— PresidencyZA (@PresidencyZA) October 9, 2018
Monday, 10 September 2018
The Democratic Alliance (DA) SUPPORTS expropriation without compensation, their shadow communications minister, Phumzile Van Damme confirms
That isn’t technically correct. We support the Constitution not being amended and land reform being conducted as per the dictates of s25 of the Bill of Rights. EFF & ANC want the section amended & the state to own the land. pic.twitter.com/Ie1yqs5BUD— Phumzile Van Damme (@zilevandamme) September 10, 2018
We of course informed others of our exciting discovery:
Official DA linked account confirms that the DA SUPPORTS expropriation without compensation.https://t.co/15Mb2FylfR@ConCaracal @mynameisjerm @RomanCabanac @ErnstRoets @GvanOnselen @StefanMolyneux @Sowellnomics @Renegade_Report @Jonathan_Witt @kalliekriel @willempet pic.twitter.com/OVbxfkTCKO— Marc Evan Aupiais (@SACNSNew) September 10, 2018
Originally, DA member, Renaldo called the whole thing fake news:
Why are you guys spreading fake news? Do you know how twitter works? Notice the link connecting the tweets as well as the other name in the tag with mine.— Renaldo Gouws (@RenaldoGouws) September 10, 2018
However, as more people picked up the conversation, he quickly dropped that position.
My boss? Do you know how political structure works Willem?— Renaldo Gouws (@RenaldoGouws) September 10, 2018
Danie with all due respect, the DA's policy is clear on this. I can't help what some members are tweeting. I support what the DA's policy and constitution says... not what some members say about it.— Renaldo Gouws (@RenaldoGouws) September 10, 2018
Others have also reported on it, mostly upset the DA has not stood up for property owners.
Oh dear. https://t.co/IlUnUNeFFn— Renegade Report 🐶 (@Renegade_Report) September 10, 2018
This comes, as the DA slammed AfriForum's very reasonable submissions to parliament, saying they could agree with absolutely nothing Ernst Roets presented, some of which may be watched, here:
Wednesday, 29 August 2018
What is good legal drafting? In the modern era, good legal drafting, is just good English drafting.
Yes, you check legislation and case law, but then you set out the positions of the parties in as close to ordinary everyday speech as you can, and in as accurate and specific manner as you can.
Legal drafting is just writing, and writing is just communicating with letters and grammar instead of vibrations in the air.
Obviously, there are some rules, such as keeping as close to one point in a clause as possible, and numbering your pleadings and paragraphs in affidavits, but those are simply an outside form to help you, your opponent and the court out a little.
So, get over this idea that good legal drafting is some sort of 'witchcraft' ritual where you always must use the perfect words, and where 'spells' that have already succeeded are much sought after. Rather look at the substance and argument which succeeded for others.
Look to the case law, legislation, regulations, and to the logical parts of your inner mind and soul. Make a case with your words, one which would convince an average person, and even convince someone who often has words thrown their way. The basics of logical argument are essential here: make sound, cogent points. Use logic as a weapon.
Draft from your mind. Write out a case for what you want and then pray to the court for it, or demand it of your opponent, or place a spot for parties to sign it.
It isn't nearly as difficult, and pleadings, affidavits, and legal documents (besides the sort of stuff that goes to the deeds office) are not nearly as fragile as you might have been brought up via university to believe. Law is practical, and while process and form are important, far more of it is substance than anything else.
Tuesday, 28 August 2018
The lawlessness across the country has been accelerated since the new presidency took over, with government announcing plans to change the covenant it has with the people to get rid of one of the three key stone human rights, the right to property.
Firefighters now need to wear protective gear, and fire stations, like libraries and schools, risk being burnt down.
With crime rates similar to war zones, and widespread unrest, South Africa, unlike upmarket areas, has many of the characteristics of a failed state, this can be traced back to a lack of respect by the government for the rule of law, tracing back to the end of the presidency of Thabo Mbeki.
So, why are there areas of the country which are not so deeply hurt by the gradual collapse of the state? A good portion of arrests in for instance Northcliff, are not effected by police but by private security. In true anarchocapitalist nature, private security companies have effectively replaced the police in areas that can afford them, providing patrols, armed response, and arresting suspects.
Likewise, private investigators and lawyers often get involved in the investigation and reporting of crimes, to counter a lack of capacity in the police, and community policing forums also play a massive role in keeping calm on the surface of the upmarket parts of the country.
The further the state has collapsed, the more the private sector has in some areas picked up the slack, for now.
Thursday, 16 August 2018
Ex Officio is a Latin phrase that means someone is something or other because of a position or office they hold.
To quote the Oxford Dictionary of English
'ex officio /ˌɛks əˈfɪʃɪəʊ /
▸ adverb & adjective by virtue of one's position or status:
[as adjective] an ex officio member of the committee.
– ORIGIN Latin, from ex ‘out of, from’ + officium ‘duty’.'
I am an ex officio commissioner of oaths, as an admitted (and in my case practising) attorney.
'Ex officio commissioners of oaths.—The Minister may, by notice in the Gazette, designate the holder of any office as a commissioner of oaths for any area specified in such notice, and may in like manner withdraw or amend any such notice.'
S 6 of the JUSTICES OF THE PEACE AND COMMISSIONERS OF OATHS ACT NO. 16 OF 1963
The regulation under which ex officio commissioners of oaths are appointed is: GN 903 of 10 July 1998: Designation of Commissioners of Oaths in terms of section 6 of the Justices of the Peace and Commissioners of Oaths Act, 1963, which states:
'I, Abdulah Mohamed Omar, Minister of Justice, hereby, under section 6 of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963), designate the holders of the offices listed in the Schedule to be commissioners of oaths for the Republic of South Africa with effect from the date hereof.'
S 2 of the said schedule makes the following commissioners of oaths ex officio:
'2. Administration of justice
Advocate admitted in terms of the Admission of Advocates Act, 1964 (Act No. 74 of 1964); Admission of Advocates Act, 1964 (Act No. 74 of 1964) as applicable on 6 December 1977 (former Republic of Bophuthatswana); and the Admission of Advocates Amendment Proclamation No. 1 of 1992 (former Republic of Venda).
Attorney admitted in terms of the Attorneys Act, 1979 (Act No. 53 of 1979); Attorneys, Notaries and Conveyancers Act, 1984 (Act No. 29 of 1984) (former Republic of Bophuthatswana); Attorneys Act, 1987 (Act No. 42 of 1987) (former Republic of Venda); and Attorneys, Notaries and Conveyancers Admission Act, 1934 (Act No. 23 of 1934) (former Republic of Transkei).
Clerk of the Court and Assistant Clerk of the Court.
Justice of the Peace.
( f )
Messenger of the Court.
Notary admitted in terms of the Attorneys Act, 1979 (Act No. 53 of 1979); Attorneys, Notaries and Conveyancers Act, 1984 (Act No. 29 of 1984) (former Republic of Bophuthatswana); and Attorneys Act, 1987 (Act No. 42 of 1987) (former Republic of Venda).
Sheriff, Additional Sheriff and Deputy Sheriff.
Sworn translator admitted and enrolled in terms of rule 59 of the Rules of the Supreme Court of South Africa; Supreme Court of Bophuthatswana Act, 1982 (Act No. 32 of 1982) (former Republic of Bophuthatswana); and Supreme Court Decree No. 43 of 1990 (former Republic of Ciskei).'
Many other offices in various areas of public life are also made ex officio commissioners of oaths in terms of the regulation, with various offices being assigned the status under the following main categories, to quote the index of the schedule:
ARRANGEMENT OF REGULATIONS
Administration of justice
Agricultural Research Council
Association of Chartered Certified Accountants
Association of Accounting Technicians (SA)(“AAT(SA)”)
Association of Certified Fraud Examiners South Africa Chapter
Chartered Institute of Management Accountants
Auditor-General, Office of
Banking institution registered in terms of the Banks Act, 1990 (Act No. 94 of 1990), and the Mutual Banks Act, 1993 (Act No. 124 of 1993)
BMW (South Africa) (Pty) Ltd
Board of Executors as defined in regulation 1 of the regulations published by Government Notice R.910 of 22 May 1968
Bosasa Security (Pty) Ltd
BoE Stockbrokers (Pty) Limited
BoE (Pty) Limited
Building society registered in terms of the Building Societies Act, 1986 (Act No. 82 of 1986)
Census and statistics
Chambers of industries and of commerce, national organisations/associations registered in terms of section 21 of the Companies Act, 1973 (Act No. 61 of 1973), and trade unions and employers’ organisations or federations of such trade unions or employers’ organisations registered in terms of the Labour Relations Act, 1995 (Act No. 66 of 1995)
Chartered Secretaries Southern Africa
Co-operative registered or deemed to be registered in terms of the Co-operatives Act, 1981 (Act No. 91 of 1981)
Co-operative incorporated as a company in terms of section 161A of Co-operatives Act, 1981 (Act No. 91 of 1981), read with section 63 of the Companies Act, 1973 (Act No. 61 of 1973)
Council for Mineral Technology established in terms of the Mineral Technology Act, 1989 (Act No. 30 of 1989)
Department of Correctional Services
Development Bank of Southern Africa
Durban City Police
First National Asset Management and Trust Company (Proprietary) Limited
Financial Planning Institute of Southern Africa
Foundation for Research Development including the National Accelerator Centre, the South African Astronomical Observatory and the Hartebeesthoek Radio Astronomy Observatory
Gold Fields Security Limited
Special Investigating Unit
Indigent Subsidy Scheme of the Municipality of Port Elizabeth
Industrial Development Corporation of South Africa Limited, established by section 2 of the Industrial Development Act, 1940 (Act No. 22 of 1940)
Institute of Accounting and Commerce
Institute of Certified Bookkeepers and Accountants
Institute of Internal Auditors South Africa
Insurer registered in terms of the Insurance Act, 1943 (Act No. 27 of 1943)
Joint Municipal Pension Fund
Ithala Development Finance Corporation Limited
Land and Agricultural Bank of South Africa
. . . . . .
National Defence Force
National Key Points declared in terms of the National Key Points Act, 1980 (Act No. 102 of 1980)
National Petroleum Refiners of South Africa Proprietary Limited
National Training Board established by section 3 of the Manpower Training Act, 1981 (Act No. 56 of 1981)
Nissan South Africa (Pty) Ltd
Nuclear Development Corporation of South Africa (Pty) Ltd
Old-age homes and retirement resorts
Political party registered in terms of section 18 of the Electoral Act, 1993
Posts and Telecommunications
PricewaterhouseCoopers Advisory Services (Pty) Ltd – Forensic Services Department
Public Service Commission
Registration of deaths
Sasol Marketing Company Limited
SA Board for People Practices
Sasol Townships Limited
Sheltered employment factories under the control of the Department of Labour
Small Business Development Corporation Limited
South African Agricultural Union
South African Coal, Oil and Gas Corporation Limited
South African Development Trust Corporation Limited referred to in section 12 of the Abolition of Racially Based Land Measures Act, 1991 (Act No. 108 of 1991)
South African Gas Distribution Corporation Limited
South African Housing Trust Limited
South African Institution of Chartered Accounts
South African Institute of Professional Accountants
South African Institute of Tax Professionals
South African Iron and Steel Industrial Corporation Limited
South African Maritime Safety Authority
South African Police Service
South African Post Office Limited
South African Reserve Bank established by section 9 of the Currency and Banking Act, 1920 (Act No. 31 of 1920)
South African Revenue Service
South African Social Security Agency, established in terms of section 2 of the South African Social Security Agency Act, 2004 (Act No. 9 of 2004)
Southern African Institute for Business Accountants
Southern African Institute of Government Auditors
Staff Management Board, established in terms of section 4 of the Post Office Service Act, 1974 (Act No. 66 of 1974)
Strata Healthcare Management Ltd
Strategic Fuel Fund Association
South African Geomatics Council
Technikon established by or under any Act
Telkom South Africa Limited
Transnet Limited, including business undertakings and units thereof
Trust Company as defined in regulation 1 of the regulations published by Government Notice No. R.910 of 22 May 1968
Uranium Enrichment Corporation of South Africa (Pty) Ltd.
President Kruger Children’s Home Pretoria'
I had been considering going into law, and knew that this little book of rules was based on the same Roman Law from which we get our legal system. I was determined to learn it for its basic concepts, to improve my legal mind before varsity. I even joined discussion forums on that mini legal system, and discussed it and advised people online about it. I followed blogs on it and its application.
Everyone hears about systems like Sharia Law, not many know of the Code of Canon Law of the Roman Catholic Church, which has a legal tradition spanning back further than Sharia law, and which has even, in parts, been incorporated into our own law.
The idea that one must have an evil mind to be guilty: intention or negligence, and so much else, is stolen from early canon law and the morality system surrounding it.
Legal concepts like common purpose or automatic operation of law were much easier to grasp in university law classes, because I had studied another offshoot of Roman law.
If you want to improve your understanding of South African law, studying Canon Law goes a long way. Studying law in miniature teaches you the concepts you need. It sets your mind to the right default settings.
Monday, 13 August 2018
There is still money to be made in law in this environment, and it is in what I have always called bread and butter legal services. People still need contracts, wills, marital contracts. There are still people facing labour disciplinary matters and criminal prosecution. There is still money to be made in law, in the bread and butter, in the essential bare bones legal services.
Don't charge what your law degree is worth in your mind. Charge what the market is prepared to pay for your services. Downscale from that expensive office, lay off unnecessary staff. Reduce your expenses, and make sure you are serving paying clients, whether via having all funds in trust first before each stage, or by stopping work the moment payment stops, and until the value of each account is zero again.
There is money to be made in law, but prudence is required, and, with it, the capability to swallow your pride and do less 'glamourous' work and to work within your means. Bread and butter work is the foundation of every law firm.
If you are losing clients because of the current rainy day, find something that makes money for your firm. Study new areas of law if need be. Do what is needed so you can stay in business.
This slump has existed for at least two years, now. It is something law firms can survive, but you need to be creative and prepared to engage in adaptivity if you are going to survive. Find a niche and batter down the hatches. With the way things are going, things will likely get a lot worse before they get better. Focus on the essentials, both in providing them to your clients, and in keeping your lifeblood enterprises afloat in the tempest upon us. You can be glamourous once again, when blue skies return to our shores, when our battered economy rises again. For now, provide the basic services the public can still afford.
Attorneys can often feel an unexpected panic, even with all their matters under thumb and properly in order.
What should you do if it happens to you?
Make yourself English Breakfast tea with a buttermilk rusk or biscuit.
Put on calming music. This may work: https://youtu.be/St3wrs0ZGN4 .
Take your feet out your shoes. Lie back. Close your eyes, and relax (but don't fall asleep unless you can).
That stress comes from an activation of your fight and flight reflex.
Focus only on your breathing.
Breathe in slowly.
Breathe out slowly.
Repeat for as long as you need.
Relax your shoulders and entire self.
Breathe. Focus on your breath.
Be present in the moment and only the moment. The future does not exist. The past is but a distant memory.
When you are properly calm, look at each file again and make sure nothing is amiss.
Saturday, 11 August 2018
Anyone who leaves university for the real world is at that moment starting their real educational journey.
Unisa produces more LLB graduates than any other university. They thus make up the majority of applicants for positions.
Many Unisa graduates do get articles and do become attorneys.
There are firms who prefer Wits or UCT or Rhodes graduates, but that is a personal preference. Likewise, there are attorneys who prefer to hire Unisa graduates for their firms. It certainly is not a majority with a bias against Unisa.
If anything, more graduates have Unisa as their alma mater, and thus you are more likely to meet a Unisa graduate who washed up. You are, by the same grain, more likely to find a Unisa graduate who made it.
In any case, firms pay very little mind to a candidate's university background, whether the school or their academic achievements. There is a massive gap between knowledge which is valued in universities, and the essential knowledge needed to practise law.
A law degree is important because it is required for most law jobs, but anyone who leaves university for the real world is at that moment starting their real educational journey.
No need to get all deep and philosophical. Wisdom is knowledge coupled with good judgement. Simple as that.
Oxford defines knowledge as:
'knowledge /ˈnɒlɪdʒ /
▸ noun [mass noun]
1 facts, information, and skills acquired through experience or education; the theoretical or practical understanding of a subject:
a thirst for knowledge
her considerable knowledge of antiques.
▪ the sum of what is known:
the transmission of knowledge.
▪ information held on a computer system.
▪ Philosophy true, justified belief; certain understanding, as opposed to opinion.
2 awareness or familiarity gained by experience of a fact or situation:
the programme had been developed without his knowledge
he denied all knowledge of the incidents.
3 archaic sexual intercourse.
come to someone's knowledge
become known to someone.
to (the best of) someone's knowledge
as far as someone knows; judging from the information someone has:
the text is free of factual errors, to the best of my knowledge.
– ORIGIN Middle English (originally as a verb in the sense ‘acknowledge, recognize’, later as a noun): from an Old English compound based on cnāwan (see know).'
And wisdom as:
'wisdom /ˈwɪzdəm /
▸ noun [mass noun] the quality of having experience, knowledge, and good judgement; the quality of being wise:
listen to his words of wisdom.
▪ the fact of being based on sensible or wise thinking:
some questioned the wisdom of building the dam so close to an active volcano.
▪ the body of knowledge and experience that develops within a specified society or period:
in someone's wisdom
used ironically to suggest that someone's action is not well judged:
in their wisdom they decided to dispense with him.
– ORIGIN Old Englishwīsdōm (see wise1, -dom).'
Then, there is the difference between being wise and being knowledgeable, again, I quote from Oxford:
'wise1 /wʌɪz /
▸ adjective having or showing experience, knowledge, and good judgement:
she seems kind and wise
a wise precaution.
▪ sensible or prudent:
it would be wise to discuss the matter with the chairman.
▪ having knowledge in a specified subject:
he is wise in the ways of haute couture.
▪ (wise to) informal aware of, especially so as to know how to act:
at seven she was already wise to the police.
▸ verb [no object] (wise up) [often in imperative] informal become aware of or informed about something:
wise up to the flavours of North Africa.
be wise after the event
understand and assess a situation only after its implications have become obvious:
it is easy to be wise after the event.
be none (or not any) the wiser
not understand something, even though it has been explained:
she said an awful lot but he wasn't any the wiser
I am still none the wiser about the meaning of the word.
– ORIGIN Old Englishwīs, of Germanic origin; related to Dutch wijs and German weise, also to wit2.'
'knowledgeable /ˈnɒlɪdʒəb(ə)l / (also knowledgable)
▸ adjective intelligent and well informed:
she is very knowledgeable about livestock and pedigrees.
knowledgeability /nɒlɪdʒəˈbɪlɪti/ noun
knowledgeably /ˈnɒlɪdʒəbli / adverb
It is harder to make it as an advocate, and far more stressful. As an attorney, I can deal with more than just matters going to court, meaning I have more opportunity to work, as an attorney, than an advocate at a similar stage in their career.
Some advocates do make more in an hour or a day than an attorney, but those hours and days are scarcer for most advocates than attorneys.
Don't make the mistake of judging based on on hourly rates. e.g. one advocate, let us call him Jack, may charge R 25000 a day, and work one day a month. An attorney, let's call him John, may earn a thousand rand an hour and work 100 hours a month. Who is better off?
Thursday, 9 August 2018
'You attract what you fear'
In theme, they get a reply from someone saying they fear something they want, and in particular, a law degree.
'Omg I'm so scared I'll actually complete my law degree'.
For many doing an LLB bachelor of laws degree, today, that should be a fear. A law degree does not get 80% of graduates entry to the profession. Make sure you count the cost beforehand.
Get your learner's licence and sign up for driving lessons: get a licence. 90% of firms will reject you out of hand for not having a licence: driving is a big part of the job of both candidates and attorneys. Improve your English: write everything you write like a legal letter, read novels and case law and sign up for extra English lessons if need be. Get a tutor. Get a student's discount at centres which teach you how to speak clearly and in a way everyone can understand you. I used to go through the dictionary a word at a time to check my pronunciation of every word against the International Received English standard, using my knowledge of the International Phonetic Alphabet to do so. The Received English in non-American dictionaries is the accent of lawyers across the commonwealth, and much of South Africa. It helps, because everyone understands that accent, and the easier to understand you are, the more likely people are to believe you, per studies. By the same stroke, stop using big words where they are not the most appropriate word. Practise debate and arguing. Argue online and in person. Blog. YouTube. Get used to speaking in front of people and of it mattering. You can't swear in court, except to God, so learn to be respectful, polite and courteous in all your interactions.
Because, wasting four or seven years of your life on a 'sure thing' and then never using it, is something you should fear. The world, outside of university, knows that it owes you, personally, nothing. If you are not prepared to do everything possible to succeed in this profession, you are likely to land up washed up upon the shore, with a degree that was not worth the time and effort you spent on it.
Tuesday, 7 August 2018
I don't like the idea of advertorials, or of being the latest 'legal expert' being interviewed on whether selling unripe bananas violates consumer protection law.
Times Select aren't the only ones in the business of selling advertorials to attorneys.
Lawyer Monthly consistently sends me emails about how impressed they are with me, and how they would like to do a centrefold profile or even magazine cover of me, for a price. I don't reply to their periodic 'interview request'.
I have seen colleagues link to or post pictures of similar profiles and gushing advertorials from their LinkedIn profile. It seems we as a profession have gone beyond giving free advice, and are now expected to pay good money to give advice in publications the public pay money to read.
I write articles on law on my blogs, and certainly do the odd advert in a community group. I also tend to enjoy answering legal questions, and helping people out. Law is more than a career to me. It is actually a passion I enjoy.
I have had someone suggest to me I should pay for an advertorial in the local paper, others suggest having journalists on speed dial to talk to about the latest news stories. I don't find either idea appetizing. I don't like the idea of advertorials, or of being the latest 'legal expert' being interviewed on whether selling unripe bananas violates consumer protection law. My personal inclination is to say no to the various 'advertorial opportunity' pitches I receive.
Am I wrong to be sceptical in this sort of thing? Am I just being old fashioned? Have advertorials worked for you?
Sunday, 5 August 2018
An enemy so driven by vengeance, that it would destroy everything, willingly, will not be satisfied with land.
There is no land hunger in South Africa. It just isn't there. People might want free stuff like RDP houses and grants, which they feel they deserve as a reward for their vote. However, next to no one really wants land. The same cancerous hate that took my relative's life all those years ago is behind the new clarion calls of the devil. Calls to murder, to genocide, to strip us sheep led to the slaughter of all our wool, and to kneel us down and murder us, have rung out for decades, but now ring with a clear frequency, and resonate in the halls of parliament itself.
He submitted. He did his attackers no wrong. We who live for now may soon face his same dilemma.
We seem increasingly upon the brink of making a choice. Do we dig our own graves, do we kneel and hand over all we have? Do we submit and go out with a whimper? Do we flee to nowhere? Do we allow ourselves to be stripped of all we have and then inevitably killed by what often is blood lust, not just land hunger?
Now, while you still can, speak up against the suicide of our nation, against a hate so great it thinks nothing of destroying every life in our nation to satisfy its blood lust. If we are to be led into the gas chambers, machete lines, or before the firing squad, let us not softly submit, but shout out to the heavens with the sickening, soul shattering cry of those who are being murdered. Should we be murdered, let our blood forever stain, let our cry of injustice forever echo across this nation. Let us not go quietly into the dark night, too gentle to call this what it really is.
An enemy so driven by vengeance, that it would destroy everything, willingly, will not be satisfied with land. The people who call to destroy our democracy in their long held plans of collectivised race vengeance and hate, are not desirous of land, but of the endless spilling of our blood itself.
Speak up. It at least is something we
still can do.
It usually means they are looking for someone with an LLB degree. It is assumed you know they mean they want someone who would qualify for right of appearance while working for them.
In a small minority of cases, they want someone who either is ceding from another firm where they had right of appearance and were in all likelihood appearing in court, or have right of appearance in regional court, either as a former advocate or as a candidate who has been serving articles long enough.
In all cases, a new right of appearance certificate must be applied for and issued for the subsequent contract of articles, under the name of the new principal as principal, and under your name as their candidate attorney.
Sunday, 29 July 2018
Lawyers and law firms easily become targets of criminals, if they aren't careful. From scammers out for trust funds, and touts aiming to sue people on someone else's unknowing behalf, to thieves and robbers out to use slight of hand, or force to get what they aren't entitled to.
The location of every law practice is conveniently available to the public via law society listings. Firms also often list in the phone book and online. It is a part of doing business.
Whether a well equipped office, or more often than not, the actual home of the attorney, a law office often makes a tempting morsel for people with no respect for others' property rights.
Against scammers and touts, secure ways of operating and verifying clients can be developed. I have written on that before.
When it comes to robbery, and in the case of some colleagues, attempted murder by for instance a despondent opponent, certain measures are essential for safety.
1) Have office doors which lock, and lock separately from a lockable front gate and reception area which can be locked down and restricted. Just as submarines are designed to keep water from spreading in a sinking ship, your offices should be designed to minimise a criminal's ability to proceed. Lock your front gate. Lock your entry area. Lock your waiting area. Lock your office door; people can knock on it and announce who they are to gain entry.
2) Be cautious about walk-in clients. You can't take on a client anyway without FICAing them, so only give walk-in clients and couriers and document servers limited access to your premises. Give prospective clients the details on how to set up an appointment with you, and make sure any appointment isn't same day.
3) When leaving the office, always be aware of your surroundings.
3.1) Park your car at somewhat safer parking areas near court. Check every single door and the boot (USA: trunk) are locked. A jamming device may well just affect one door's lock.
3.2) Leave a hijacking gap in front of you on any trip to the inner city: at least a car's space when stopped.
3.3) Some attorneys carry guns when going into town and then store them with court security. Many have been spared hijackings and robberies in this fashion.
3.4) Don't flash about valuables or be too distracted by your phone when about town. Plan your trip and walking route ahead of time, so you know where you are going. Scout out places you haven't been before, so that you are not distracted when you go.
3.5) Travel in groups where possible, especially when in city centres.
3.6) Don't lift your feet too high off the ground when walking, studies show that looking for people who lift their feet higher when walking is how criminals often identify potential marks who are less likely to fight them.
3.7) Stand up straight when walking and imagine you are someone important. Confidence makes you a less likely mark.
3.8) Don't puff yourself up when walking in bad areas. Locate your locus of self closer to the ground, with good balance on your feet. Walk with purpose, and be aware of potential weapons such as rocks on the ground, and of the location of the nearest police officer.
3.9) Be very aware of your surroundings. Use nearby glass and your view of shadows to make sure no one is following you. Lazily look around every now and again. If someone is following you, try to lose them.
3.10) Learn how to use your pilot's bag or other equipment as a weapon in the event of an attack.
3.11) Have a separate wallet for when you go in to town. Keep your driver's licence in your pocket. Too many have lost their identity documents, driver's or credit cards to theft and robbery. Don't be the fat seal the shark wants: carry the minimum.
3.12) Always look around before getting into your car. Also check nothing is leaking and no one has tampered with it. I am far from the only attorney to have suffered having got into a sabotaged car.
3.13) Encrypt and back up your cellular phone and if possible, your laptop. That way, you only lose their trade value upon theft.
3.14) Listen to your gut, even if it means being rude or offish to people you meet in the street. Make sure no one distracts you or bumps into you so as to allow another to walk off with your property.
3.14.1) Human traffickers often for instance advertise jobs in the city centre, and kidnap the vulnerable. This modus operandi has been adapted by criminals in the past. If you are meeting someone in the city centre, make sure they are who you believe they are, and check up on the place you are meeting them at. Listen to your gut if it says to avoid an area or person or place.
3.14.2) Be aware when getting into lifts, as well as at places where a lot of people are. Often things can happen in a crowd, with no witnesses. Cases of abduction often occur at train stations and public parks according to police. Likewise, avoid overly deserted places.
3.15) There is a place to have an animated and focussed conversation on your phone: home, your office, or a restaurant. Have your full wits about you when nearby courts. Don't put your phone on the table at restaurants, keep it in your pocket. Keep any bag where you control it, not hanging on a chair or behind you.
3.16) Be careful not to be too helpful, stay aware at all times.
3.17) Keep valuables in an inner jacket pocket, not the back pocket of your trousers. Keep your jacket on you.
4) A good private security company is an important asset to employ the services of. Have a working panic button with you and with each employee in the office, which they can carry on their person.
5) Try to run a cash free premises. Have clients deposit directly into your account, EFT, or use a card or app based point of service system.
6) Put your client files behind lock and key.
7) Always make sure you are in control of your premises. Limit the amount of non-staff people there at any time, and don't let people access your actual office without an appointment. No one should get past whatever you deem to be reception unless they are an expected guest. By the same standard, have your clients inform you ahead of time if they are bringing anyone with them. Stories of twenty people coming to console a client make good party chit chat, but also mean you have entirely lost control of the security of the offices.
8) Compare your client in person to their FICA photo ID. Don't let someone in who does not look like your client does in your records, unless they can prove events which justify their change in appearance.
In the end of the day, avoiding becoming the next target is about making yourself a less appetizing target, and more difficult to hit than the firm or person next to you. No one can be entirely safe, but there are precautions you can take to make sure you are safer.
Thursday, 26 July 2018
We settle something like 90%, or more, of our cases. Many of the others go to court unopposed, because whomever is being sued by the lawyer in question has no real case. Going to court is expensive, and we prefer to only do it when we feel assured we have already won. Even then, it is a bet and depends on the judge on the day.
Lawyers who never lose tend to be lawyers who, besides preparing very well, and getting a thorough brief from client, as all lawyers tend to, also have a good feel for risk. Again, I am largely describing most lawyers.
The idea that all we do is pitch up in court and argue is not founded in fact. We negotiate. We debate. We slowly move towards trial, and if things are going a certain way in trial, or pre-trial, or at any stage, you often even see a settlement then.
The primary thing a lawyer does is leverage law. We only actually bite when we have to, and lawyers tend to have a sixth sense for a bad case and not bring it to court.
The only lawyers who lose a lot are lawyers who are very often in court, and that is simply because they are there so often, and even then it tends to be a rare event. Just as you might be able to predict the next minute in your favourite television show, lawyers tend to think several steps ahead. If we attack or defend it is because we have a foot to stand on.
Saturday, 21 July 2018
False hopes can be deadly and soul destroying. People often leave university with false hopes: they will immediately get articles, for a massive salary, be admitted as an attorney and own three houses and a yacht. Everyone will be so proud of them, and adore them, at just the mention of what they are: a lawyer. Every client will pay their bills, and they will be loved by everyone.
It is common for lawyers, myself included, to discourage prospective lawyers from the profession. We aren't being mean, and we do want new lawyers to make their careers, their mark, and their living from law.
There is money to be made as a lawyer, and a meaningful life full to the brim with meaning and excitement. However, just as not every adventurer finds a dragon guarding treasures and gold in a great mountain, not every prospective lawyer succeeds.
Just as you were the first sperm to the egg, you made it, you can make it as a lawyer. Maybe one in five LLB graduates get articles. Of them, maybe half get admitted. Of them, maybe a third stay in the profession for a year or more. Of them ... of them ... of them ...
Law is the toughest career to make it in. You do articles for very little income. You then are unlikely to make much upon admission, new attorneys need to build up experience first. Once you have a sound knowledge of the law, a good reputation, and a capable ability, either your salary increases, which is great, or if you have entrepreneurial spirit, you go on your own. Many even go on their own straight after admission and gain great joy and a living from that. Many others go on their own, whether immediately or after years in a firm, and fail.
The vast majority of those who embark on this journey into law, don't finish in it. Some gain an LLB and go into business, or corporate, and gain much from their flexibility. Others find themselves working in retail or other jobs they would have done better getting instead of building up student debt and being set back four or five years in their careers.
Many do articles, become an attorney, and immediately enter a different field and career.
If you, like me, have a passion for being what I am now, a practising attorney and sole proprietor, and are willing to fight tooth and nail to get there and stay there, then have a hope for success in that, but make sure it is a realistic hope, count the cost first. Be flexible if it doesn't work out. Be guided by the financial viability of what you have set out to do. Law is a business not a default means to wealth.
Have a hope that is not tied down, a longer term hope, a real hope. Have a hope that is welcoming good things from a distance, based on signs already present. Don't have a fool's hope. Ground yourself in reality, count the cost, and make the great leap if it is worth it to you.
It breaks our hearts seeing so many lives damaged by false hopes about a legal career. That is why we discourage aspirant lawyers. I was told the cost before I embarked on this journey. I was told to be wary of law as a career. I chose it anyway. If this is the career for you, you need to choose it anyway, and not choose it by default.
If your heart is set, then, we who have crossed over to the other side, we admitted attorneys, hold out our hands and beckon you on and welcome you into our number, or unto the path, which like Everest, or the tunnel into a dragon's cave, is strewn with many failed hopes, and ends for some. We beckon you nonetheless, a clarion call and homeric siren's song, to join us on the other side of it.
Wednesday, 18 July 2018
The first step is to get a letter from your local law society stating that you are an attorney. The bank will require the letter when opening your attorney's trust and business accounts. Some banks still require also opening a third account to deduct your trust fees, but with the major banks, those two accounts are enough. The bank will likely require a R500.00 deposit into your business account, and a later R 100.00 deposit into your trust account when you have sent them your Fidelity Fund certificate and they have unfrozen it. The deposits are not bank fees, and remain your money. Make sure you are emailed statements from both accounts on at least a monthly basis. Also, be sure to set up online banking, as you will need this for your trust account, unless you like cheques very much. The law society may want proof of your accounts being opened, the bank employee can get you that while you are sitting there, opening the account.
You should at this point be opening a trust cashbook, journals and ledgers and a business cashbook, journals and ledgers, either in physical form or on your computer, as you will need to record all your transactions as an attorney, by the end of the month after each month's transactions occur. The cheapest solution is to do your books in Microsoft Excel, if you have it on your computer. Many hire bookkeepers or use specialised software.
Go through to the law society, with the forms for opening a new firm filled out, including the application on paper for a fidelity fund certificate. Also fill out the application for your membership card, and bring your Identity Document and two passport sized photographs of you with. Take these forms and such to the records department. If you don't have the forms to fill out, request them, and also be sure to request information as to the amount that payment will be from the same department.
You will be expected to pay your ordinary membership fees if you are not yet a practising member of the law society, and your registration fees for your firm.
Once you have registered, the next step is to log onto the website of the Financial Intelligence Centre, and register as an accounting organisation with them. You should at this point begin planning for your processes for complying with FICA, wherein you need to request certain documents from clients before you first serve them, such as proof of address, proof of identity, and proof of their tax number. FICA now also requires you to establish if a client is a person of national interest, and the corporate and ownership structure of corporate clients and the like. A good guide may be to download your local bank's FICA compliance document and use it as a loose guide on how you yourself will comply.
Once you have received your Fidelity Fund certificate, you are allowed to set up practice. Make sure you are not sharing offices with any non-attorney, that your law practice is clearly marked and demarcated, and that your client will be able to brief you privately.
Your invoices and receipts to clients will need to comply with the Consumer Protection Act and the rules governing attorneys. You should create an attorney client-contract for your clients to sign, it should at a minimum contain the required details set out in the Legal Practice Act. It is a good idea to insist on a top-up method, where you only work when there is money in your trust account, and where money is always deposited well in advance of any emergencies in the matter. Also, be sure to know how to tell if a matter has prescribed, or is about to, so you don't get into very avoidable trouble for negligence.
It is a good idea to get yourself a filing system for when your clients bring documents for their matters, and often a good idea to keep digital copies, which you should safely back up, as many attorneys have found themselves up a creek without a paddle, upon their computer being damaged or stolen. You should also consider creating a hard copy and digital record of your clients' personal contact details, and for alternative contacts if you can't reach your client in some emergency.
If you use computers in your practice, make sure you have a good and regularly updated anti-virus program installed. If you use Android for your phone, also get a good anti-virus for your phone. Also be sure you have some sort of backup of important emails. Printing them and printing them to PDF can be useful. When you save files, put the date first, to help you organise them, and consider having separate folders on your computer for each matter, and separating research files and precedents from the matters they are for, so that they can be of future use.
It is advisable to record all your phone calls in terms of s 4 of the Regulation of Interception of Communications Act. That way, you have proof of what conversations entailed. Store these recordings securely. Also, consider encrypting your phone and computer hard drives. A good written record of all phone calls and what they entailed is also important and good notes of consultations are essential. Also, consider recording consultations with a dictaphone. You often miss details in the moment, that become clear on a recording.
Have some standard questions you ask your clients, and always get their basic identifying and contact information.
It is also important to fill out the survey of the AIIF each year. You want to be covered if you act negligently.
Once you have been in practice for four months, you will need to have your trust account and trust accounting books audited by an auditor accredited by the law society. Make sure you contact one in advance, so you know what they charge and can save up. The audit needs to be delivered to the law society along with your annual statement, within your first six months of practice.
You will need to sign up for Practice Management Training (PMT), and pass it, so as to make sure you receive your next Fidelity Fund certificate. Remember, without a Fidelity Fund certificate, you cannot practise.
It is also important that you design your letterhead in terms of the rules governing the profession. Also important, but less so than the letterhead, is to get your stamps made. You need a firm stamp, a received without prejudice stamp, and will do well to have certified copy and commissioner of oaths stamps.
If you are new to law, or a long practising attorney, friends and contacts are important. Be sure to ask for guidance from colleagues who know the answers when you are new to something. Also, try to create a good law library. Books like Amlers and collections like LAWSA and Butterworths Forms and Precedents can save you hours of research, and can be accessed online for a reasonable monthly fee as part of a LegalSelect package. Stay up to date on legal news and regulations, and be sure you are writing and reading regardless of how many clients you have.
Your office is your primary tool as an attorney, other than your own transport, and it is important to have a decent printer that works, some form of computer, a desk, and chairs for you and clients. I also believe that tea and coffee, and some rusks or biscuits can do a world of good for getting clients to open up. Also make sure you have an accurate way to record your time spent on a client's matter.
Writing and speaking are essential tools for lawyers. Consider keeping a blog, and write how you would write a legal letter in all your social communications. Get into the habit. Speak politely with everyone, also, get out of habits like using swear words. You don't want to accidentally use one in court. Practise the art of conversation, and of debate, and record yourself speaking. Consider doing mock trial with attorneys in your area, get your confidence up. Attend trials and see how other attorneys do them, especially unopposed and opposed motion court, divorces, and urgent court. Also, see how more experienced colleagues draft, but don't use their drafting as a precedent, use it as a guide. Remember, good legal drafting is about accurately setting out the positions of the parties, whether in pleadings, or contract, or a legal letter. Also, remember, you are a creature of instruction, your client's problem is theirs, not yours. You merely represent them.
Beyond that all, remember law is a business, and take joy in your work. Working from home can be difficult, and a routine such as walking to your office each morning can be helpful. Instead of setting goals to do work, set goals for work opportunities. Say: I will open client X's file, and look at it. Suddenly, you will find you are working away on it. Make sure you have savings for six months before opening a firm, and put a good amount of whatever you earn into savings. Don't take on too much work at once, or too many too-big clients to start. Slowly does it. Set up the right processes and procedures before even opening your door. Too many law firms have grown too fast and collapsed, others, too, have got a ton of work immediately, only to see work dry up in a bad economy without savings to get them by.
To those who go on this journey of entrepreneurship, we your fellow small to medium sized enterprises welcome you.
Nothing herein should be relied upon as legal advice. For that, make an appointment with your attorney and fully brief them of all the nuances of your matter.
Tuesday, 17 July 2018
IPSOS interviewed a few thousand randomly selected South Africans in their homes in late April, May and early June. They found just 13% of South Africans supported the opposition Democratic Alliance (DA) and that it would lose its majority in its stronghold of the Western Cape. They also found the African National Congress (ANC) polling at about 60% with the Economic Freedom Fighters (EFF) polling at just 7%.
The poll has been criticised for a number of reasons, including the obscurity around results. Also, the idea that the ANC is polling better than last year, when people are losing their jobs, petrol and food are more expensive, and people are poorer, as the economy has also shrunk.
Firstly, the poll took place in the first few months of Ramaphosa's presidency, bearing in mind he was put in charge after removing previous President Jacob Zuma in a palace coup in February. Ramaphoria, which media deemed to be investor sentiment, when it wasn't, is perhaps better defined as the positive coverage of Ramaphosa in South African media. Investors have been scared away from South Africa.
As I have reported on before, South African media, with a bit of help from Black Economic Empowerment (BEE) ownership quotas, and new wealth from tenderpreneurs, are almost solely owned by ANC allies, in South Africa, never mind the tightly controlled SABC state broadcaster, which broadcasts from radio and television aerials across the country.
Perhaps these figures are accurate. The DA has been abandoning its principles in favour of light versions of ANC policies, and Marxist beliefs. It has certainly lost a lot of support, perhaps even ten percent of the support it had.
The thing is, the IPSOS poll interviewed people as young as 15, who won't be voting, and did not just interview registered voters, or even people likely to vote.
The most accurate polling is robocalling: people, when dealing with a machine, are more honest. Would you let IPSOS' local pollsters into your home to chat politics? Was it during working hours? I don't know many people who would allow strangers into their home to interview them on politics. I certainly wouldn't, given the danger of crime in South Africa.
I would say, then, that people who are less worried about crime would be those involved, and if the pollsters were demographically representative of South Africa, given the very real pressure on people to vote ANC, people polled may have felt worried for their life or career if they said they were voting for someone else. Notably, even most ANC voters said they believed there was a leadership crisis in the ANC.
As the ANC continues to push forward with populist policies which have already caused mass job losses and poverty, and others which should be expected to add yet more misery to the economy, the average person on the street will continue to suffer. Most have only woken up to this from June, going forward, and it is from then that headlines turned. It was in June that we all were greeted with the news that the economy had shrunk and was in its worst place in 9 years. The IPSOS poll doesn't account for that and other realizations of misery under Ramaphosa's weak leadership.
Going forward, we can likely expect very different polling results, as other pollsters use more accurate polling techniques which don't rely on access to people's sanctum, their home, and don't pollute the results with pollsters who have human faces which give human expressions, and who those polled may fear will tell others of their voting intentions.
Monday, 16 July 2018
Attorneys must wear their robe when appearing to represent others in Magistrate's court. I always wear a black or navy suit below it (with two black or navy buttons capable of closing the suit jacket, and lapels, and no waistcoat), mostly a light coloured long sleeved shirt, often white, and no crazy ties or crazy socks. I wear a formal tie, often blue or black. Some courts even take offence to a red tie. Formal and respectful tends to be the idea.
As it is not their court, which High Court is, advocates will often not robe in Magistrate's Court. Attorneys, however, should. The only reason not to robe in Magistrate's Court is if counsel or another attorney is appearing for your client on your instructions, or if you are not appearing on behalf of anyone.
For what to wear below their robe, attorneys can gain a lot from staying close to the rules governing counsel and attorneys with right of appearance in the High Court, as such will dress in their High Court appearances.
An example of this can be found in the prescriptions for dress by counsel in the Gauteng Local Division of the High Court. The dress code for junior counsel is in particular a good guide.
However, for Magistrate's Court, attorneys should rather wear a tie, and not a jabot or bib.
Below, a quote of the said rules, from the said Gauteng Local Division of the High Court's Practice Manual.
CHAPTER 4 COUNSEL'S DRESS
Counsel is required to be properly dressed. If not properly dressed they run the risk of not being "seen" by the presiding judge.
Proper dress for junior counsel comprises:
2.1 A black stuff gown.
2.2 A plain black long sleeved jacket (and not a waistcoat) which has both a collar and lapels. The jacket must have, for closing, one or two buttons at the waist. The buttons must be black.
2.3 A white shirt or blouse closed at the neck.
2.4 A white lace jabot or white bands.
2.5 Dark pants or skirt.
2.6 Black or dark closed shoes.
Proper dress for senior counsel comprises:
3.1 A Senior Counsel's (silk) gown.
3.2 A Senior Counsel's (silk) waistcoat.
3.3 A white shirt or blouse closed at the neck.
3.4 A white lace jabot or white bands.
3.5 Dark pants or skirt.
3.6 Black or dark closed shoes.
Counsel must ensure when appearing in court that their waistcoats or jackets, as the case may be, are
It is not proper for counsel to enter court not fully robed as set out in paragraph 2 to 4 supra. It follows
that counsel should not robe in court.
Conspicuous ornaments or jewellery should not be worn.
On attending a judge's chambers during the hearing of a case, counsel must be dressed as set out in
paragraphs 2 to 4 above. On attending a judge's chambers otherwise than during the hearing of
case, counsel must be properly dressed as follows:
7.1 A white shirt with a tie (men) or a white blouse closed at the neck (women);
7.2 Dark pants or dark skirt;
7.3 A long sleeved dark jacket; and
7.4 Black or dark closed shoes.
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