Wednesday, 29 August 2018

Draft well, legally.

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.

Monday, 27 August 2018

South Africa, an otherwise failed state, kept together by the capitalism of anarchy

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.

Thursday, 16 August 2018

What is an ex officio commissioner of oaths?

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'

The canons of the law and default settings.

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.

Monday, 13 August 2018

Bread and butter ... our foundation ...

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.

That panicky feeling, 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.

Saturday, 11 August 2018

Do candidates for jobs in law suffer rejection more often if they went to Unisa?

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.

Marc Evan Aupiais

Marc Evan Aupiais

Read More!

Read More!
Subscribe to us!

Popular Posts