Tito Mboweni's appointment should scare, not assure, foreign investors in South Africa

'I am not available for Minister of Finance. You 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 tweeted out to the world on 19 February 2018, just months before he was set to become Minister of Finance.

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!

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 (@tito_mboweni) April 27, 2018

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

The Democratic Alliance (DA) SUPPORTS expropriation without compensation, their shadow communications minister, Phumzile Van Damme confirms

In a twitter conversation with DA YouTuber, Renaldo Gouws, the Democratic Alliance's Phumzile Van Damme, a self described 'DA Parliamentarian. Shadow Minister of Communications. DASO Western Cape Constituency Head. Liberal. Feminist. Warrior. Politics. Hip Hop. Jazz. Film. Tech.', and a verified account on Twitter, admitted that her party does support taking white people's land without compensation, she just doesn't believe the Constitution needs to be amended to do so.

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

https://twitter.com/zilevandamme/status/1039128260960026624


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

pic.twitter.com/0v7GnywYwy

— 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.

Funniest thing ever:

-@RenaldoGouws: "The DA does not support EWC"

-Renaldo's boss at the DA: "Actually we do, just under the current constitution that allows it" pic.twitter.com/ZTkoJN8MHx

— Willem Petzer (@willempet) September 10, 2018

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.

DA members should just stay off Twitter - except for @RenaldoGouws, he has principles. pic.twitter.com/0c6J6T6GWd

— Roman Cabanac (@RomanCabanac) September 10, 2018

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:

Good legal drafting explained ...

I often see questions about legal drafting.

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.

The capitalism of anarchy that barely holds South Africa above the drowning abyss

The rule of law is severely damaged when the state does not hold itself to its contract with its citizens. Over recent decades, law has slipped to the extent that South Africa now has several violent riots daily, most of which never make the media.

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.

What an ex officio commissioner of oaths is.

What is an ex officio commissioner of oaths?

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

(a)

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).

(b)

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).

(c)

Clerk of the Court and Assistant Clerk of the Court.

(d)

Judge’s Secretary.

(e)

Justice of the Peace.

( f )

Messenger of the Court.

(g)

Magistrate.

(h)

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).

(i)

Peace Officer.

( j)

Sheriff, Additional Sheriff and Deputy Sheriff.

(k)

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:

'SCHEDULE

ARRANGEMENT OF REGULATIONS

 
1.

National Executive

2.–3.

Administration of justice

4.–5.

Agricultural Research Council

6.

Armscor

6A.

Association of Chartered Certified Accountants

6Aa

Association of Accounting Technicians (SA)(“AAT(SA)”)

6Ab

Association of Certified Fraud Examiners South Africa Chapter

6B.

Chartered Institute of Management Accountants

7.

Auditor-General, Office of

8.

Aventura Limited

9.

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)

10.

BMW (South Africa) (Pty) Ltd

11.

Board of Executors as defined in regulation 1 of the regulations published by Government Notice R.910 of 22 May 1968

11A.

Bosasa Security (Pty) Ltd

11Ba.

BoE Stockbrokers (Pty) Limited

11Bb.

BoE (Pty) Limited

12.

Building society registered in terms of the Building Societies Act, 1986 (Act No. 82 of 1986)

13.

Census and statistics

14.

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)

14A.

Chartered Secretaries Southern Africa

15.

Co-operative registered or deemed to be registered in terms of the Co-operatives Act, 1981 (Act No. 91 of 1981)

15A

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)

16.

Council for Mineral Technology established in terms of the Mineral Technology Act, 1989 (Act No. 30 of 1989)

16A.

Credo

17.

CSIR

18.

Department of Correctional Services

19.

Development Bank of Southern Africa

20.

Durban City Police

21.

Educational institution

22.

Eskom

23.

First National Asset Management and Trust Company (Proprietary) Limited

23A.

Financial Planning Institute of Southern Africa

24.

Foundation for Research Development including the National Accelerator Centre, the South African Astronomical Observatory and the Hartebeesthoek Radio Astronomy Observatory

25.

Gold Fields Security Limited

26.

Health services

26A.



27.

Special Investigating Unit

28.

Indigent Subsidy Scheme of the Municipality of Port Elizabeth

29.

Industrial Development Corporation of South Africa Limited, established by section 2 of the Industrial Development Act, 1940 (Act No. 22 of 1940)

29A.

Institute of Accounting and Commerce

29B.

Institute of Certified Bookkeepers and Accountants

29C.

Institute of Internal Auditors South Africa

30.

Insurer registered in terms of the Insurance Act, 1943 (Act No. 27 of 1943)

31.

Joint Municipal Pension Fund

32.

Ithala Development Finance Corporation Limited

33.

Land and Agricultural Bank of South Africa

34.

Marriage Officer

34A.

. . . . . .

35.

Mining industry

35A.

NAMAC Trust

36.

National Defence Force

37.

National Key Points declared in terms of the National Key Points Act, 1980 (Act No. 102 of 1980)

38.

National Petroleum Refiners of South Africa Proprietary Limited

39.

National Training Board established by section 3  of the Manpower Training Act, 1981 (Act No. 56 of 1981)

40.

Nissan South Africa (Pty) Ltd

41.

Nuclear Development Corporation of South Africa (Pty) Ltd

42.

Old-age homes and retirement resorts

43.

Parliament

44.

Patents

45.

Political party registered in terms of section 18 of the Electoral Act, 1993

46.

Posts and Telecommunications

46A

PricewaterhouseCoopers Advisory Services (Pty) Ltd – Forensic Services Department

47.

Provincial Government

48.

Public Service Commission

49.

Public Service

50.

Rand Water

51.

Referendums

52.

Registration of deaths

53.

Sasol Marketing Company Limited

53A

SA Board for People Practices

54.

Sasol Townships Limited

55.

Sheltered employment factories under the control of the Department of Labour

56.

Small Business Development Corporation Limited

57.

South African Agricultural Union

58.

South African Coal, Oil and Gas Corporation Limited

59.

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)

60.

South African Gas Distribution Corporation Limited

61.

South African Housing Trust Limited

61A.

South African Institution of Chartered Accounts

61B.

South African Institute of Professional Accountants

61C.

South African Institute of Tax Professionals

62.

South African Iron and Steel Industrial Corporation Limited

62A.

South African Maritime Safety Authority

63.

South African Police Service

64.

South African Post Office Limited

65.

South African Reserve Bank established by section 9  of the Currency and Banking Act, 1920 (Act No. 31 of 1920)

66.

South African Revenue Service

66A.

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)

66B.

Southern African Institute for Business Accountants

66C.

Southern African Institute of Government Auditors

67.

Staff Management Board, established in terms of section 4  of the Post Office Service Act, 1974 (Act No. 66 of 1974)

67A.

Strata Healthcare Management Ltd

68.

Strategic Fuel Fund Association

69.

South African Geomatics Council

70.

Tattersalls

71.

Technikon established by or under any Act

72.

Telkom South Africa Limited

72A.

Traditional leaders

73.

Transnet Limited, including business undertakings and units thereof

74.

Trust Company as defined in regulation 1 of the regulations published by Government Notice No. R.910 of 22 May 1968

75.

University

76.

Uranium Enrichment Corporation of South Africa (Pty) Ltd.

77.

President Kruger Children’s Home Pretoria'

Studying Law in Miniature.

It was a little book with a red cover. It was an English translation published in India. I drove to the centre of town, into inner Johannesburg, to buy it. During break time at school and whenever I had time, I read it cover to cover. I studied it.

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.

Bread and Butter ...

A lot of lawyers are complaining they are struggling now. This should not be a surprise with our economy in possibly its worst conditions ever, despite optimistic media messages constantly pumped out, the figures are not lying. Consumers are stockpiling what they can of cash and essentials. Legal services are often seen as a luxury purchase and fall by the wayside.

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.

Panic! And you.

That uncontrollable panicky feeling, and you.

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.

Relax.

Calm down.

Focus only on your breathing.

Breathe in slowly.

Hold it.

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.

Anyone who leaves university for the real world is at that moment starting their real educational journey.

Is there a bias against Unisa graduates in South African law firms?

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.

The difference: knowledge v wisdom

What is the difference between knowledge and wisdom?

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.
– PHRASES
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:
Eastern wisdom.
– PHRASES
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.
– PHRASES
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.
– DERIVATIVES
knowledgeability /nɒlɪdʒəˈbɪlɪti/ noun
knowledgeably /ˈnɒlɪdʒəbli  / adverb
knowledgeableness noun'.

Who makes more, attorneys, or advocates?

Who makes more, attorneys or advocates?

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?

Most law graduates never enter the profession of law

There is a meme doing the rounds.

Someone tweets:

'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.

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.

I answered the phone. They knew who I was, but checked to confirm. They loved my writing and thought I would be perfect for a column in their nationally syndicated newspaper, I'd just have to pay them R25000.00 a year, and I would get a column to write for the subscriber only exclusive Times Select publication of the Times and Sunday Times. I of course said no.

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?

An enemy so driven by vengeance, that it would destroy everything, willingly, will not be satisfied with land.

He did everything they told him to. They demanded his car keys. He gave them his car keys. He gave them what he owned. They knelt him down and shot him to death. He was my uncle in law, and he was murdered by people who never knew anything about him. He died solely because of the pigmentation of his skin. He died at the hands of men who hated him because he was white.

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.

What is right of appearance as it appears in most job adverts for candidate attorney positions?

What is right of appearance as it appears in most job adverts for candidate attorney positions?

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.

Safety precautions to protect your firm and home

Keeping your firm and home safe

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.

An attorney actually losing a case is the exception that proves the rule.

Today, I saw someone claim that a lawyer who wins all their cases is a criminal. That just isn't true and shows a lack of understanding of how lawyers actually operate.

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.

Law is a business, not a default means to wealth!

They will rescue us by Christmas, his fellow prisoners in the concentration camp said. Christmas came, and the prisoners who believed in the rescue became disheartened, depressed, and many faded into death. He had a different hope: he would be rescued eventually. It held him together and he survived the camps and the war. He wrote about hope, and when I read what he wrote, it changed how I viewed such a potent emotion.

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.

How to set up a law firm ...

How to open a law firm.

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.

The problem with the IPSOS poll #DA #EFF #ANC

The problem with the IPSOS poll.

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.

How should attorneys dress to be seen by the Magistrate's Court?

How should attorneys dress for appearances in the Magistrate's Court?

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

1.

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
buttoned up.

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.

Why do law firms often require applicants, for entry level positions, who are fluent in Afrikaans? An answer ...

Why do law firms often require applicants, for entry level positions, who are fluent in Afrikaans? An answer I can give from my own experience of the industry.

Business is won or lost on the margins, and law is one of the most competitive businesses there is. Lawyers do all they can to give their clients the best experience possible, from having comfy chairs, to offering expensive tea and coffee, to trying to communicate with clients in their own language.

Afrikaans is one of the most spoken languages in South Africa, and the vast majority of speakers are non-white. At one firm I worked at, almost all of my instructions were in Afrikaans. I have also had a matter where the prosecution handed me a document dealing with my client's case, in Afrikaans, and given the masses of case law written in Afrikaans, including one case which was vital to a matter I dealt with, it is still important.

Law is a business. While less vital for case law purposes, languages like Zulu or even Portuguese are often required by firms, because their clients are more comfortable speaking these languages. You make money in law by serving your clients so they recommend you to others and come back with other problems. Speaking their language is a massive advantage.

You might even find that a lot of the firms requiring someone fluent in Afrikaans have a purely English speaking staff, and have missed out on a lot of business as a result, and are trying to get into a new market. You might find the same with those asking for Zulu.

The only reason firms tend to set language requirements is because it means they can make more money.

If you can't meet the standards, make sure you provide something of equal or greater value. E.g. an advanced research ability or a good base of potential clients.

In South Africa, certain terms of an employment contract must be reduced to writing by the employer

The basics that must be in any contract of employment are set out in s 29 of the BCEA:

'29. Written particulars of employment.—(1) An employer must supply an employee, when the employee commences employment, with the following particulars in writing—

(a)

the full name and address of the employer;

(b)

the name and occupation of the employee, or a brief description of the work for which the employee is employed;

(c)

the place of work, and, where the employee is required or permitted to work at various places, an indication of this;

(d)

the date on which the employment began;

(e)

the employee’s ordinary hours of work and days of work;

( f )

the employee’s wage or the rate and method of calculating wages;

(g)

the rate of pay for overtime work;

(h)

any other cash payments that the employee is entitled to;

(i)

any payment in kind that the employee is entitled to and the value of the payment in kind;

( j)

how frequently remuneration will be paid;

(k)

any deductions to be made from the employee’s remuneration;

(l)

the leave to which the employee is entitled;

(m)

the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate;

(n)

a description of any council or sectoral determination which covers the employer’s business;

(o)

any period of employment with a previous employer that counts towards the employee’s period of employment;

(p)

a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained.

(2) When any matter listed in subsection (1) changes—

(a)

the written particulars must be revised to reflect the change; and

(b)

the employee must be supplied with a copy of the document reflecting the change.

(3) If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands.

(4) Written particulars in terms of this section must be kept by the employer for a period of three years after the termination of employment.'

Obviously, some of these will be governed by statutory minimums or requirements, mostly found in the same Basic Conditions of Employment Act.

The rest of an employment contract usually just spells out common law and statutory rights, and unique conditions.

Nothing herein should be relied upon as legal advice. For that, make an appointment with your attorney and fully brief them of the facts and nuances of your matter.

Sending out your Curriculum Vitae

A lot of people have given their advice after reading CVs. I am not offering any jobs right now, but I still receive plenty of CVs in my inbox and have discussed this sort of thing with other business owners in the past. So, here it goes.

Some CV advice:

1) Use personal pronouns, commas and full stops. Anyone who is annoyed by them is a) not a lawyer and not in a profession where good written communication is essential and b) is probably able to speed read in any case.
2) Ditch the precedent. List the information about your past experience and jobs that you'd list on LinkedIn. Don't follow some precedent that everyone hands around. Show you know how to construct a formal document.
3) Use a list/table format to supply what is sometimes considered 'superfluous' information, such as your citizenship, sex, phone number, email, website, driver's licence and car ownership status.
4) People want to know you are a complete human person. They want to know your interests, hobbies and what makes you tick. Just, don't list social justice warrior stuff on your CV. People know it is fake or problematic and you will be put on the no pile for that.
5) Don't play the victim card, or the rose from obscurity to greatness card. People want to know you are persevering, but they want someone who strives to better themselves, not someone who blames the world and holds onto past traumas. Get a job by impressing, not by trying to get sympathy.
6) Have a standard letter of motivation. Like everything in your CV it must show a perfect command of English vocabulary, spelling and grammar. Use simpler and smaller words, unless a larger word is ideal. Using a big word when unnecessary is bad communication.
7) Use concise sentences: short but not so short so as to lose the effect.
8) Market yourself. Make sure they want to hire you.
9) List past work experience, even if not in the field. Don't say you were fired or retrenched from a job, which is something I have read in a CV before: only mention retrenchment if it was your last job.
10) Don't lambaste past employers in your CV, or overplay the work you did there.
11) Show an understanding of other people, a willingness to learn and defer, and indicate your ability to show right judgement.
12) Show why you are the best candidate, convince, don't tell.
13) Put at least a month's work into perfecting your CV.
14) Use headers and footers.
15) Save your CV as a PDF when sending.
16) Have a message in the email you send, and mention the sort of job you are seeking. Mention the job you are applying for in the heading of the email, also.
17) Show you are polite and have good communications skills.
18) Make the back end of your CV robust. Place detail of your skills and experience behind everything else, in detail.
19) Include two letters of recommendation which show your good character, scan them in and append them to the end of your PDF. Have a different two character references people can call. They should be people who know you and your character, not past employers.
20) List every course you did and passed in varsity, but don't list the marks you got, say a copy of your transcript is available on request.
21) Don't include scans of your ID, transcripts and degrees in the email or bundle. Say they are available on request.
22) Come across as a competent but real human being.
23) Use the email to indicate you have some knowledge of the firm, if you want to customise it, but have a standard letter of motivation.
24) Say Dear Sir/Madam if you don't know exactly who you want a job from. Try to email a partner or director and avoid the HR department and the secretary. Go straight to the source. Have a paragraph in your email asking them to forward it to the appropriate person if they are not the desk dealing with human resources.
25) Check how you portray yourself on social media and when interacting with people in or adjacent to the profession you want to be part of, make sure you come across well in both instances. People often ask colleages for advice on hirings.
26) You are not worth what you have put into yourself, you are worth what someone is willing to pay for your services. Impress them enough that they want to pay you more so someone else doesn't scoop you up.
27) Dress more formally than the person who will be interviewing you, if you get an interview.
28) See how long secretarial staff have been there, and check LinkedIn for past employees who worked there. See how past employees describe their time there, and how long they worked there. Consider contacting them and finding out more about the firm you might be joining.
29) It will take hundreds of CVs sent out for you to find the right employer, and most won't have advertised a job, some will even create a job to hire you if you are impressive enough. Don't just send to a few employers.
30) Have an impressive and professional email address and conduct yourself with the professionalism expected of people doing the job you want to do.
31) Realise that a CV is like a profile on a dating website, and an interview is like a blind date: you are not everyone's right fit for the job, it is about figuring out if you and the employer are a good fit.

How to make legal services more affordable, and feed the masses of unemployed law graduates ...

How to actually open up the legal profession, and legal services.

I often hear the same suggestions, which just don't work, when it comes to making legal services more accessible. We are told we need more government intervention, more tariffs and rules.

I have something radical to suggest: less rules.

If you want more people to do something with their LLB, give them practical trade training, and let them practise straight away. Get rid of articles of clerkship. Americans do well without it, and the market is much better at establishing standards than statutes and laws are.

Get rid of comparitive advertising rules, in fact, let attorneys advertise their prices, let them do discounts, and vouchers. Let them pay marketing agencies to get them clients. Let them share offices and resources and fees. Let them have lay shareholders, even. These things have not destroyed the medical profession. If anything, medical services are more available as a result.

In any market, heavy regulations favour the status quo and push out new competition. In a place like America, anyone can get legal services.

Imagine if the so called street advocates and attorneys who struggle, instead of competing with everyone else for the same upper middle class business, were allowed to charge say R 20.00 an hour instead of the fees they have to charge. Many could survive in law, on that even. It would open legal services up. Township barbers in no way reduce the quality of service found in a top hair salon. What they do is give people hair care at a price they are prepared to pay for the quality and service they want.

What would happen if we got rid of undercharging prohibitions? People who want the current levels of service would still pay for them. And those in up market suburbs or near big businesses would still have the same clients. However, just as private schools are offering very cheap fees for the poor, lawyers could then compete with legal aid. Small debts, like R 5000.00 would also become more affordable to litigate, opening up legal services for smaller debts.

I would love to see a world where free market capitalism, and all its advertising and voluntary fee arrangements and market regulations could bring legal services to everyone, and allow the other 75% to make money from the legal degree they studied. Don't have own transport? No trouble if you work for yourself and are prepared to take a taxi or bus to court. Don't speak Tswana or Afrikaans? That is fine if you are working for yourself and your clients speak Zulu or English.

Currently, we are heading in the exact opposite direction. It does not have to be that way. So much of the poverty we see among LLB graduates is the direct result of law and regulations. Let's educate the powers that be to let the market regulate our services. It can work.

Signing a power of attorney

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

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

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

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

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

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

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

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

I have written on this from several perspectives.

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

I could not see myself doing anything else, but unless you have the killer instinct and the ability to harm in a lawful and self controlled manner, don't become an attorney. Rather then be a legal advisor or countless other jobs.

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

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

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

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

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

Debt collectors cannot just do as they please in South Africa

Debt collectors cannot just do as they please in South Africa

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

In terms of s 1 of the act:


'“debt collector” means—

(a)

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

(b)

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

(c)

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


In terms of s 14 of the act:


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

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

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

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



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


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

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

(a)

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

(b)

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

(c)

utilise a communication which simulates legal or judicial processes;

(d)

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

(e)

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

( f )

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

(g)

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

(h)

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

(i)

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

( j)

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

(k)

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

(l)

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

(m)

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

(n)

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

(o)

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

(p)

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

(q)

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

(r)

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

(s)

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

(t)

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



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

(a)

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

(b)

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

(c)

makes use of fraudulent or misleading representations, including—

(i)

the simulation of legal procedures;

(ii)

the use of simulated official or legal documents;

(iii)

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

(iv)

the making of unjustified threats to enforce rights;

(d)

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

(e)

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

( f )

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

(g)

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

(h)

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

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

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

(a)

withdraw his or her registration as a debt collector;

(b)

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

(c)

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

(d)

reprimand him or her;

(e)

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

( f )

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

(g)

combine any of the penalties under this subsection.

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

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


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