Post on 27-Feb-2018
transcript
bar News
20 Advocate December 2016 Advocate December 2016
North West/MahikengJohn Stander
NEW cOuNcIL ELEcTEDThe North West Bar Association has elect-ed a new council. Johann Pistor SC retains the chair, Cecile Zwiegelaar takes over the deputy chair and Morongwa Moagi and Ketumetsi Mongale are the treasurer and secretary, respectively.
ADVOcATE – the SA Bar Journal is published three times per annum (April, August and December) by the General Council of the Bar of SA.
2017 Subscription is R360.00. Back issues: R120.00 per copy, VAT and postage incl. Overseas subscribers (surface mail) R660.00.
Register at: The Executive Officer, GCB PO Box 786878 Sandton 2146 together with a cheque in the sum of R360.00, payable to the General council of the Bar of SA.
FAREWELLIt has also been a time to say goodbye to several former members and associate members. Tiny Seboka and Hennie du Plessis (members) have resigned, whilst Takalani Madima SC, Pimeza Jara and Samkelo Mbali have discontinued their associate status.
ASSOcIATION MEMBERSHIPLawrence Lever SC continues to act as judge in the Northern Cape Division. He has been accorded associate membership of this Association.
Lastly, Sejako Senatle SC resumed his membership of the Association with effect from 1 August 2016. A
21
forum
There is a Pedi (Northern Sotho) expression which best de-scribes anxieties caused by poor Blacks’ lack of access to
justice in South Africa. The expression reads “O se ke wa ba letlabo la pholo wa fula o thaetsa”. As Northern Sotho is one of the official languages in South Africa, I deliberately elect not to translate this expression into another South African official language, save to say “I got you”.
Currently advocates provide legal services to poor litigants on the basis of “choice”. I recently searched in vain the Consti-tution of the General Council of the Bar (the GCB), searching for a clause or paragraph dealing with access to justice for peo-ple disadvantaged by the disparities of the past. Out of des-peration I searched through the proposed amendments to the GCB Constitution and my junior advocate’s eyes and thoughts found nothing dealing specifically with access to justice. My desperation landed me in my library and fortunately, I found the Legal Practice Act 28 of 2014 (the Act).
My children were finally happy to observe smiling Dad having found “a needle in the middle of darkness”. I read through the Act and noted the following with a smile:
Purpose of Act3. The purpose of this Act is to—(a) provide a legislative framework for the transformation and
restructuring of the legal profession that embraces the val-ues underpinning the Constitution and ensures that the rule of law is upheld;
(b) broaden access to justice by putting in place—
AccESS TO JuSTIcE THROuGH
cOMMuNITY LEGAL cENTRES SHOuLD BE
BAR’S PROJEcTLeks Makua, Johannesburg Bar
(i) a mechanism to determine fees chargeable by legal practi-tioners for legal services rendered that are within the reach of the citizenry;
(ii) measures to provide for the rendering of community service by candidate legal practitioners and practising legal practi-tioners; and
(iii) measures that provide equal opportunities for all aspirant legal practitioners in order to have a legal profession that broadly reflects the demographics of the Republic;
(c) create a single unified statutory body to regulate the affairs of all legal practitioners and all candidate legal practitioners in pursuit of the goal of an accountable, efficient and inde-pendent legal profession;
(d) protect and promote the public interest;(e) provide for the establishment of an Office of Legal Services
Ombud;(f) provide a fair, effective, efficient and transparent procedure
for the resolution of complaints against legal practitioners and candidate legal practitioners; and
(g) create a framework for the— (i) development and maintenance of appropriate professional and
ethical norms and standards for the rendering of legal services by legal practitioners and candidate legal practitioners;
(ii) regulation of the admission and enrolment of legal practi-tioners; and
(iii) development of adequate training programmes for legal practitioners and candidate legal practitioners.
SA Tourism
Advocate December 2016.indd 20-21 2016/12/15 02:58:04 PM
Advocate December 2016 23
Reading through the purpose of the Act, I was excited by the words “broaden access to justice by putting in place:…(ii) measures to provide for the rendering of community service by candidate legal practitioners and practising legal practitioners”. These exciting words made me remember what the late Presi-dent of the ANC Youth League comrade Peter Mokaba once said: “Comfort zones breed nothing”.
I had the luxury of reading the August 2016 Issue of Advocate magazine and at page 14, in the last paragraphs, my col-
league Kevin Iles correctly put it this way: “We are uniquely placed to improve access to justice. If the attorneys who brief us do not know that we are willing to act pro bono, how will lay litigants ever know that help is available to them? Those who require pro bono assistance are often those who are least likely to know where to begin to seek the help that they require. They often do not have the resources to make extensive enquiries for help and are unlikely to be persistent in seeking help if they are discouraged or turned away by those whom they first ap-proach. We have the ability and the means to make a difference in the lives of others”. Well-said Kevin, and this is what we, the members of the GCB, should know and everyday sing: “We have the ability and the means to make a difference in the lives of others”. I agree that “we have the ability and means to make a difference in the lives of others”, but only if we can speedily embrace our role and develop appropriate means to make ac-cess to justice a project.
Disparity in access to justice calls for reflection amongst us as advocates to rethink our approach, lack of engagement and unwillingness to deal effectively with access to justice as a project. Let us re-think our comfort zones and define our role within the purpose of the Act and grab the opportunity given to us by the Act to treat access to justice as our project. My thoughts here immediately go to one of our own legal role-models, and a courageous Judge, Justice Didcott, the visionary judge and champion of access to justice. In Mohlomi v Minister of Defence 1997 (1) SA 124 (CC), Judge Didcott put it thought-
fully and insightfully when he said the following: “… disparity must be viewed against the background depicted by the state of affairs prevailing in South Africa, a land where poverty and illiteracy abound and differences of culture and language are pronounced, where such conditions isolate the people whom they handicap from the mainstream of the law, where most persons who have been injured are either unaware of or poorly informed about their legal rights and what they should do in order to enforce those, and where access to the professional advice and assistance that they need so sorely is often difficult for financial or geographical reasons”.
I have greatest respect for Judge Didcott and admire and salute every inch of his life as a citizen and judge. The late Judge Didcott played his part in interpreting and developing the law to advance the interests of poor people to access and feel justice. As advocates, we must treat access to justice as a project and not wait for a “whip” into our thoughts through legislation and other means. The Cambridge English dictionary defines disparity as “a lack of equality or similarity, especially in a way that is not fair”. Disparity in our country emanates from apartheid and may mean circumstances over which Black South Africans had no control to influence their basic opportu-nities in their country of birth. This is morally reprehensible and there should be no debate about it. Simply put, access to justice means helping poor people who cannot afford lawyers.
forum
“Simply put, access to justice means helping poor people who cannot afford lawyers.”
Access to justice
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Expert Evidence in Clinical Negligence: A Practitioner’s Guide P van den Heever, N Lawrenson
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3941
-11-
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11 mm
PETER VAN BLERK
LEGAL
DRAFTING
Civil Procee
dingsS E C
ON
D E D
I T I ON
PETER VAN BLERK
LEGAL D
RAFTING
Civil Proceedings
SE
CO
ND
ED
I T I ON
www.jutalaw.co.za
In 1998, Peter V
an Blerk, a sen
ior counsel
practising at
the Johannesb
urg Bar, wrote
the first
edition of L
egal D
rafting –
Civil
Proceedings t
o bridge th
e gap betw
een the
academic
study of la
w and its
practical
applicatio
n insofar as
the prepara
tion
of court d
ocuments is c
oncerned. T
he book was
of part
icular
signific
ance
to pupils at t
he Bar
studying fo
r the s
even hour open-book Legal W
riting
examinatio
n. Such was its v
alue and ass
istance
that it m
ay not be ta
ken into
the exam
ination by pupils.
The seco
nd editio
n of Lega
l Draftin
g – Civil P
roceedings
has been
updated
to address c
hanges in th
e law. It
now inclu
des a se
ction on th
e prep
aratio
n
of documents
for arbitra
tions a
s well
as an ex
tended ch
apter on th
e all-
importa
nt task of p
repari
ng heads of ar
gument. Notwith
standing all o
f this,
the book re
mains (
in the w
ords of th
e author)
an ‘instru
ction m
anual’ to
attorneys an
d advocates a
like.
LEGAL DRAFTIN
G
Civil Procee
dingsS E C O
ND E D I T I O
N
www.juta
law.co.za
Information Solutions
SAD
C LAW
JOU
RNA
L 2012
VO
LUM
E TWO
NU
MBER 1 1—
122
Labour L
itigatio
n
and Disp
ute
Resolutio
n
JOHN G
ROGAN
Labour Litigation and
Dispute Resolution
First publish
ed in 1996, Workp
lace Law has become one of th
e most
widely used
and frequently
quoted text
books on South Afric
an labour la
w. This
11th edition
has been re
vised and su
pplemented to in
corporate the latest
case law, as w
ell as
the 2014 amendments to la
bour legisla
tion. Workp
lace Law provides a
complete
overview of is
sues that h
ave arisen and are lik
ely to arise
on the sh
op floor, in
court
and in arbitration proceedings –
from unfair la
bour practices, t
hrough employment
equity, dism
issal and collective
bargaining, to strike
s. Students,
HR and IR
practitioners,
lawyers, employers,
employees and tra
de union officials will fi
nd this
updated, comprehensive and reliable work a
convenient and indispensable guide to
a complex and fascinating area of la
w. Workp
lace Law is also
available in electronic
form in Ju
ta’s Labour L
aw Librar
y, where it i
s updated quarte
rly.
John Grogan B
A (Hons)
(Rhodes), B Iu
ris LLB (S
A), LLM PhD (R
hodes) brought
the experience gleaned from 25 ye
ars’ involve
ment in la
bour law to
bear on th
e
production of this b
ook. One of th
e most
prolific and re
spected commentators on
South African la
bour law, h
e has been in
volved in
the te
aching or practice of la
w
in various c
apacities s
ince 1987. Havin
g left his p
osition as H
ead and Professor o
f
Law at Rhodes U
niversit
y to enter p
rivate practice as a
n advocate, Dr G
rogan has
been involved in many im
portant cases a
s counsel, ju
dge or arbitrator. H
e is also
the
author of Employment R
ights, Dism
issal,
Collective Labour Law
and Labour Litigatio
n
and Dispute Resolution as w
ell as o
f innumerable artic
les, and has s
erved as a
cting
judge in the Labour a
nd High Courts and se
nior commiss
ioner of th
e CCMA and a
number of b
argaining councils.
JOHN G
ROG
AN
S E CO
ND
E DI T I O
N
SECO
ND
EDITION
9,2mm
The production of expert m
edical evid
ence is ofte
n essential a
nd pivotal in
support o
r
defence of medical n
egligence. As s
uch cases invariably
involve questio
ns of te
chnical
and factual complexity, th
e evaluation of conflicting expert m
edical testim
ony is required.
In this
book, the authors
expound and extrapolate th
e whole process
from th
e initia
l
obtaining of the re
levant health re
cords to th
e eventual testim
ony of th
e medical e
xpert
witness in court.
The authors offer a
n instructive
guide to busy
practitioners t
o assist t
hem with –
• the identific
ation of an appropriate expert
• the constr
uction of a medico-legal opinion
• the sta
tus of jo
int minutes o
f such experts
• the preparation of an expert’s
examination-in-chief
• cross-
and re-examination.
Expert Evid
ence in Clinical Negligence also
discusse
s the invaluable ro
le of experts
in the
resolution of medical m
alpractice disputes b
y way o
f mediation.
Relevant case law and the applicable Uniform Rules of Court
are comprehensively
discusse
d and set o
ut in th
e footnotes fo
r ease of re
ference.
As the fir
st sta
ndalone textb
ook on expert e
vidence in
South Africa, E
xpert Evid
ence in
Clinical Negligence is
of interest
and practical use to
the ju
diciary, members
of the legal
profession, h
eath care providers,
members of th
e medical a
nd allied professi
ons, their
councils, asso
ciations, indemnity
insurers and protection so
cieties.
Patrick va
n den Heever practise
s as a
n advocate at the Cape Bar. H
e holds the fo
llowing
academic qualifications: B
Iuris LLB (U
F) LLM (UCT) LLD (U
P). He holds a
n appointment as
Extraordinary
Professor in
the Departm
ent of C
riminal and M
edical Law at the Unive
rsity
of the Free State. H
e has sat a
s an acting judge in crim
inal appeals in th
e Weste
rn Cape
High Court and is
an internationally
qualified and accre
dited mediator. H
e has authored
The Application of th
e Doctrine of a
Loss of a
Chance to Recover in
Medical L
aw (2
007),
Objections in Civil Litig
ation (2010) and co-authored Res Ipsa
Loquitur and Medical
Negligence (2011).
Natalie Lawrenson practises a
s an advocate
at the Cape Bar. S
he holds the fo
llowing
academic qualifications: B
Mus (W
its) M
Mus (U
KZN) LLB LLM (U
CT). She sp
ecialises in
cases of m
edical malpractice.
Expert
Evidence
in Clinica
l Neglig
ence
PATRICK V
AN DEN H
EEVER
NATALIE L
AWRENSON
A PRACTITIONER’S GUID
E
Expert Evidence
in Clinica
l Neglig
ence
P VAN D
EN H
EEVER
N LAW
REN
SON
www.jutalaw.co.za
Information SolutionsInformation Solutions
37,5 mm
J HEATON
(ED )
The L
aw of D
ivorce
and D
issolut
ion of Li
fe Pa
rtners
hips in
South
Africa i
s a co
mprehe
nsive
new pu
blica
tion t
hat p
rovides
a deta
iled e
xpositi
on and
analy
sis of th
e law
relat
ing to
the te
rmina
tion o
f civil
unions,
civil
marriag
es, cu
stomary
marr
iages,
Musl
im m
arriag
es
and H
indu m
arriag
es by
divorce
. The
publi
catio
n also
offers
an in
-depth
discu
ssion a
nd
analy
sis of th
e law
relat
ing to
the d
issolut
ion of li
fe (do
mestic)
partn
ership
s. Writt
en by
a
team of su
bject
specia
lists,
it provid
es a r
ich so
urce o
f expe
rtise.
The b
ook is d
ivided
into fiv
e part
s. Pa
rt 1 fo
cuses
on the
disso
lution o
f civil
marr
iages
and c
ivil un
ions by
divorce
. This
part d
eals w
ith th
e groun
ds for d
ivorce
, the p
ersona
l and
finan
cial c
onsequ
ence
s of d
ivorce
, and
the p
osition o
f mino
r and
depe
nden
t chil
dren
of divo
rced o
r divo
rcing
spouse
s or c
ivil un
ion part
ners.
Part
2 focu
ses o
n all a
spects
of divo
rce in
custo
mary m
arriag
es, w
hile P
art 3
conc
erns d
ivorce
in M
uslim
marr
iages
and H
indu m
arriag
es. Pa
rt 4 ad
dresse
s all a
spects
relat
ing to
the d
issolut
ion of a
life
partn
ership
. The
final
part o
f the b
ook — Pa
rt 5 —
consi
ders
issue
s tha
t are
of gen
eral
appli
catio
n to di
vorce
and t
he di
ssolut
ion of li
fe pa
rtners
hips.
These
issue
s are
domest
ic
violen
ce; j
urisdi
ction,
proce
dure,
and
costs
; med
iation
and
other f
orms o
f alte
rnative
dispu
te res
olution;
and c
onflict
of laws.
The
Law o
f Divo
rce a
nd D
issolut
ion of L
ife P
artne
rships
in S
outh A
frica
is pri
marily
desig
ned f
or the s
ubjec
t spec
ialist.
The b
ook will b
e of in
dispe
nsable
value
to ac
adem
ics,
resea
rchers
, postg
radua
te stu
dents
, lega
l prac
titione
rs an
d pres
iding
officers
in th
e fiel
d
of family
law.
THE LAW OF DIVORCE AND DISSOLUTION
OF LIFE PARTNERSHIPS
IN SOUTH AFRICA
J A CQ U E L I N E HE AT O N ( E D )
IN SOUTH AFRICA
THE LAW OF DIVORCE
AND DISSOLUTION OF
LIFE PARTNERSHIPS
THE LAW OF DIVORCE AND DISSOLUTION
OF LIFE PARTNERSHIPS
IN SOUTH AFRICA
eBook
eBook eBook
3941-11-16 KeyInfoSolutionsForAdvocates-AdvocateAd.indd 1 2016/11/03 11:00 AMAdvocate December 2016.indd 22-23 2016/12/15 02:58:05 PM
Advocate December 2016 Advocate December 201624
forum Access to justice
Poverty and a multitude of other barriers deny our people justice through the courts. Barriers within our society gave birth to inequality. It is therefore inevitable to conclude that inequal-ity is the root cause of lack of access to justice for our people. If there is still any doubt about disparities and access to justice, one should put time aside and calmly read one paragraph in the judgment of the Constitutional Court in Mavava Trading 279 (Pty) Ltd and Others v University of Stellenbosch Legal Aid Clinic and Others (CCT127/15) [2016] where the following was stated:
“In most cases it was only when deductions were effected from their wages by their employers that the applicants be-came aware of the legal route taken by the credit provider. The monthly deductions from their wages were too high, leaving the applicants with little to support or maintain themselves and their families. Consequently, the individual applicants who could not afford legal representation owing to their low income, sought legal assistance from the Law Clinic which instituted these proceedings to vindicate their rights….Where a debtor consents to a magistrates’ court located many miles away from his or her residence, the debtor will likely incur much greater costs and practical difficulties. In my view, the risks of the latter markedly outweigh the potential benefits of the former.”
Because of distance, lawyers and courts are geographically inaccessible to people residing in rural locations, farming areas and townships. These barriers to procuring legal services and accessing courts constitute injustice. The right of access to jus-tice is indivisible, interdependent and interconnected with all other modes of life, like mobility and finances for public trans-port. Unfortunately, the power to succeed in a dispute requires
that the courts and lawyers should be accessible for the litigant to refer the dispute to court in the first place. Where lawyers and courts are not accessible, litigants will not be able to enter the arena and this in turn renders access to justice and equal-ity before the law a nullity. Establishment and staffing of GCB Community Legal Centres by advocates in collaboration with legal aid is not merely necessary, but imperative. This will re-move barriers to access to justice for the poor, as there is no cost involved for the poor and the social benefits will be immense.
To finance a bus or train to visit a lawyer or attend a court sitting some distance away for poor litigants is costly and unaf-fordable. There are daily complaints by commuters of the un-reliability and problems with transport for poor people in rural locations, farming areas and townships. Even if poor people are provided with free legal services by advocates, the costs of transport to and from courts will still be a burden.
If transport to and from court is a barrier for poor people, measures like allowing legal practitioners to consult in Moshate/Traditional Leaders’ Offices may be handy in addressing trans-port barriers. The solution is for practising advocates and judg-es to move out of their comfort zones and accept that the major-ity of South Africans are poor, unaware of their rights and live far from the courts. We need more advocates who will side with the poor like those amongst us who assisted and represented mine workers and their families in Marikana.
The system of pro bono as currently applied needs to be re-shaped in the context of South Africa. A reading of the Con-
stitutional Court judgments in Mohlomi and Stellenbosch Legal Aid Clinic, supra, points to the fact that lack of access to justice is
25
forum
as a result of lack of finance needed to brief legal practitioners, poor people being unaware of their rights and the geographical distance of areas where poor people are located and geographi-cal areas where courts, legal practitioners and resources are located. Advocates take pro bono briefs from attorneys and legal aid clinics.
The system of pro bono should be extended, established and located in rural locations, farming areas and townships. In rural areas, there is a need to locate and establish legal aid clin-ics within the structure of a Kgoro or Moshate/Headman/Chief/King’s Kraal to make it easier for poor people to be educated about their rights and how to pursue such rights and procure such services. Advocates should be able to to travel to rural locations, farming areas and townships to consult with clients living in those areas, especially on matters relating to, for exam-ple, credit disputes and personal injuries.
Challenges like travelling costs and accommodation should not be used as a constraint, as there is a solution. Currently the system of legal aid located in the Department of Justice needs some prioritization and the GCB should make a move and develop proposals to government on how to “make bones and flesh” of the current system of legal aid, and the role of its members.
In townships, cities and towns, advocates should reconsider establishing GCB Community Legal Centres near taxi and train stations. Funding for such GCB Community Legal Centres might be obtained through inputs of GCB and legal aid. Cur-rently, the majority of legal aid centres or officials are located in Magistrates’ Courts headed by clerks and recently admitted attorneys without any litigation experience. I hear others say-ing “eeiissh government” and I say yes, approach government in the interests of our project to develop and roll out access to justice. Legal representation of poor people enhances access to justice in our courts. Access to justice is central to the delivery of justice and effective facilitation of disputes. This in turn ensures an appropriate environment for delivery of a fair, equitable and accessible system of justice for all.
The Act talks about community service and vocational train-ing for legal practitioners. Advocates under 1 – 5 years’
experience should be encouraged to take chambers in GCB Community Legal Centres as alluded to above. Chambers may be in the form of open plan and partitioned consultation rooms.
Senior counsel and advocates of ten or more years should find it easy to do and can argue such cases with allocated junior advocates in such centres. I hear others saying “not me” and my response is to accept reality and be part of this project. Our profession would be endlessly rewarded by a knowledgeable nation or voters. Access to justice for the poor does not need sympathy and feel-sorry attitudes from advocates; it is a nation-al imperative and should not be relegated to an item that needs debate and ballots. It needs all of us as advocates to embrace and work for the common good of South Africa and not to wait until the Act or future amendments to the Act compel us to “see justice”.
There is a lot of available management expertise throughout our Constituent Bars to make things happen – let us utilise such expertise. I am available to give further input on how to make this project happen under the umbrella of the GCB or the Con-stituent Bars but only if I lead and YES only if I lead my ideas because “I don’t want to disturb those in comfort zones”.A
“The system of pro bono should be extended, established and located in rural locations, farming areas and townships. ”
Access to justice
Advocate December 2016.indd 24-25 2016/12/15 02:58:08 PM