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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16

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