Tuesday, 13 November 2018

Registering an Ante-Nuptial Contract with the Johannesburg Deeds Office

Registering an Ante-Nuptial Contract with the Johannesburg Deeds Office

A client has appeared before you, a notary public. You drafted an ante nuptial contract, which they and their spouse-to-be, and two witnesses signed in front of you; they, you, and the witnesses, initialling the bottom right of each page in black ink, and all signing in the right spot on the last page. You signed, your signature appearing in a spot: below Quod Attestor and above Before me Notary Public, and placed your stamp by it, as well.

As you already have an account with the Deeds Office, having climbed up to the 26th floor of Marble Towers, and given in the requisite documents and forms to finance, and having gone through to data collection for them to record your signature and details as a notary, I will not note that process in this piece.

You opened your protocol register (a rather expensive book which can be bought at some Waltons stores, and other stores online or elsewhere) and filled out the number of the deed, the date of your clients signing it before you, that it was an ANC, the names of the parties, and then other details you deem pertinent, under comments, and then you stored all important documents in your protocol (likely a lever arch file with non-leaching plastic flip folder style pre-punched paper sheaths in it, so no important document gets punched), which is locked away safely, along with your protocol register. The deed number in your protocol register, either starting from 1 each year or from 1 in total, corresponds to the protocol number you then enter on the ANC itself.

When the registered ANC is back from the deeds office, the first signed original is what you still keep in the protocol register, this and not the registered ANC is deemed the original. In fact, it is a signed copy of the original and not the original itself which is to be lodged at the deeds office.

It is time to lodge and register your client's ANC with the Deeds Office, on the 26th floor of Marble Towers.

Before you jump in your car, and drive to the centre of town, you need to do a few other things first. You need to get a green cover for your ANC to be placed in. On the top left corner you should have your firm name and number, and a telephone number, or your firm stamp. The rest of the front and back sides of the cover should have standard required fields and typing on them, at the right places. You should be able to buy a hundred customized green covers from specialist stationers for about five hundred rand, including delivery.

Fill out your reference number, so they know what to put in any communications to you for that ANC. By code, next to 1, say H, and put the name of the first party, a forward slash, and the name of the second party, under name of parties, under firm number, put your firm number as assigned by the Deeds Office (and emailed to you by them) when you set up your account, and under batch, say 1. Under linking, in both boxes say 1. ANCs never tend to need linking.

On the front of your ANC itself, staple on a blank sheet of A4 paper, and put your firm number on the top left of this.

You will then need to put your ANC into its own green cover.

Your cover still needs a barcode, so the deeds office can charge you for the whole thing. You need to bring with a signed letter on your firm's letterhead, signed by a director, partner, or sole proprietor of your firm. Its heading should be along the lines of 'Representatives to apply for and collect barcodes at deeds office'. The signatory should set out who they are, and their position in the firm, and state that they authorise a specific person, stating that person's full names per their government issued Identity Document and Identity Number and that they specifically authorise them to apply for and collect barcodes from the deeds office. This should be handed in at the office where barcodes are allocated, and the representative doing so must present their government issued Identity Document when collecting such. You will probably get at least a sheet with a few dozen barcodes on it. You will need to sign, and they will record which barcodes have been given to you. You don't pay anything for barcodes until they have been used for registering a document.

You place the first barcode in the set on the bottom right of the front end of your filled out green cover. For notarial work you are unlikely to need to write anything on the back cover, which should merely have the standard writing etc on it. Nothing is written on the cover on its inside, where the ANC will be placed.

Take the cover, ANC within, to the lodgement counter. They will take the cover, ANC inside, and stamp it, enter it in their system, and take it from you.

Within about 5 business days from then, if all goes well, the deed will have gone through two examiners, and be placed in your pigeon hole, having been placed into prep. You can do a deeds office tracking at the same place you got the barcodes for about R 13.00, to see where your ANC is in the process. You will need to know what the barcode number is.

Once your ANC has entered prep, it is vital you execute it within 5 days of it entering prep. So, take it to the preparation desk, and ask for permission to execute the deed there, handing it over. Otherwise, the deed will lapse and won't be registered. They will not allow you to execute on the same day as asking to execute, unless there are some special circumstances and permission granted to you. It can be a good idea to set it down for execution for the next working day.

On the execution day, sometime before 10h30, you go in, go up to floor 26 in Marble Towers, as always, and go through to preparation to get your ANC, they having authorised your execution for that day. You then go through to a small computer, where you take out your pen and fill in the date next to date on the green cover, and sign to the right of that. They scan the barcode on the ANC, and take it from you.

Within about 2 days, it may be scanned in. Within 5 working days of your executing it, if you go in, and go to the distribution desk and ask if there is anything for firm (your firm number), they should be able to give you your ANC, which they will have stapled into its cover.

Take the ANC, bring it back to your office. Scan it in for your client after you undo the staple that holds it in its cover. A notary must keep an original of every deed executed before him, in his protocol. However, practice here seems to differ at times. It is the signed original which the notary is to keep in his protocol, the registered copy from the deeds office can be given to the client.

The cover will have stamps for lodgement, execution, for each of the two examiners and their groups, its scan, and a dated stamp from the registrar of deeds on the front. On the back there may be a stamp saying 'Final Black Book' and a date.

Inside, the ANC will have a stamp stating the fee the deeds office charged you (likely R319.00), a stamp saying 'registered' with a signature and a date, and a stamp with an H and Johannesburg on it, and the H number of the year (e.g. 111111/2018) on it. Your A4 sheet should also be in the cover, likely at the back.

You will later need to pay the deeds office for each ANC you register there with them.

For the clients, a letter to be handed to their marriage officer will need to be drafted before they wed, which can be any time after they sign the ANC before you as notary.

If something is wrong or right, the best way to find out is by going into the deeds office, and checking your pigeon hole and doing deeds office tracking. You don't tend to find out how things are going with your matter otherwise.

Nothing in this piece should be relied upon as legal advice. For that, make an appointment with your attorney.

Thursday, 1 November 2018

The strange illogic in logic itself

Cause and Effect, an illogical idea, at the beginning of the universe
Poem by Marc Evan Aupiais

Tick Tock. The clock did stop.
Cause. Effect. Until the start.
A big bang, or a tiny grain of sand.
It matters not.

Go far enough back, there must always be a cause.
Something, a start, to continue to, dominoes, cause and effect.
But take infinity, call it X.
What happened before X.
What was the first cause of effect.
For something must have caused it too,
But nothing can have, there must be a first,
And this is it.

What is logic? Cause and effect.
To be logical, the foundation must be firm, it must be sound,
And that foundation must cause an effect, the specific effect, it must follow.

And yet, the entire universe is a non sequitur. It does not follow.
And neither science: cause and effect, can explain an effect without a cause,
And nor can magic: for magic is mechanical in its thinking, the precursor to science, it believed that one act, whether ritual or effective, certainly would cause another.

And whether a big bang, steady state, multiverse, or ever repeating loop, something must have brought it into being. A first knock upon the movement, the cause and effect we call time, for without energy, entropy would break the clock, even one in a circular loop. Without some outside cause for its effect, some source, all movement would stop.

What else is left? For time is cause and effect?
But then something not bound by time, must have had an effect. For, what caused X, what caused the first slight or great movement of time? The clock stops, for by its logic we know not its cause, the cause of logic, or time, of before and after, of cause and effect.

Either that, or logic, the patterns we observe as absolute, is neither universal, nor much but a precursor, like magic.
For the very first cause, logically, could not be an effect.

Wednesday, 31 October 2018

Commencement of the Legal Practice Act

The Law Society of South Africa and Law Society of the Northern Provinces have both sent out final messages before they dissolve. The Legal Practice Act is upon us.

Below, images of the LSNP message, followed by a quote of the message the LSSA sent out today.





Below, an advisory the Law Society of South Africa emailed out:

ADVISORY FROM THE LAW SOCIETY OF SOUTH AFRICA


Dear Colleagues

Tomorrow, 1 November 2018, will see the implementation of the Legal Practice Act 28 of 2014 (with some exclusions).

Proclamation R 31 of 2018 was gazetted on 29 October 2018 proclaiming the commencement of certain sections of the Legal Practice Act 28 of 2014 (LPA). It fixes Wednesday, 31 October 2018 as the date on which Chapter 2 of the LPA, with the exclusion of s 14, comes into operation and Thursday, 1 November 2018 as the date on which the rest of the LPA (with some exclusions) comes into operation (see below) and the provincial law societies are abolished. The Legal Practice Council (LPC) will begin to regulate the profession.

We, as the Law Society of South Africa (LSSA), will continue to be there for you as a voluntary body to represent, support and assist attorneys. An amendment to our constitution was signed on 29 October 2018. The Black Lawyers Association and National Association of Democratic Lawyers remain our constituent members together with provincial attorneys' associations (which replace the four provincial law societies).

Please e-mail us on LSSA@LSSA.org.za or call us on (012) 366 8800.
We urge you to ensure that your details are kept updated on our database so that you can continue to receive newsletters and advisories from us, as well as the Legalbrief LSSA Weekly on Friday mornings and De Rebus on a monthly basis, if you are a practising attorney or candidate attorney.

What happened today, 31 October 2018
Chapter 2 of the LPA has been implemented and the Legal Practice Council (LPC) has been constituted. It elected its office bearers as follows: Johannesburg attorney Kathleen Matolo-Dlepu and Johannesburg advocate Anthea Platt SC as Chairperson and Deputy-Chairperson respectively. The members of the Executive Committee are Greg Harpur SC (advocate), Trudie Nichols (attorney), Lutendo Sigogo (attorney), Jan Stemmett (attorney) and Phillip Zilwa SC (advocate).
The National Forum on the Legal Profession has been wound up.

What will happen tomorrow, 1 November 2018
The rest of the LPA will be implemented (with exclusions as listed below, including most of s 35 which relates to fees). The Attorneys Act, 1979 will be repealed and the statutory provincial law societies abolished. The LPC will take over the provincial law societies' staff and assets and commence to regulate the legal profession (attorneys and advocates).

The LPA will come into operation as follows:
Chapter 1 - Definitions, application and purpose.
Chapter 3 - Regulation of legal practitioners: This includes s 35 with the exclusion of subss 35(1), (2), (3) and (7) up to and including (12) which deal with fees for legal services. The LSSA wrote to the Justice Minister some time ago requesting the suspension of these subsections until the investigation by the SA Law Reform Commission has been completed and there has been proper consultation. This means that only subss (4) and (5) of s 35 relating to the SA Law Reform Commission investigation on fees for legal services and (6) legal fees payable by Government, will come into operation.
Chapter 4 - Professional conduct and discipline, excluding:
s 37(5)(e)(ii) - lay persons on disciplinary committees (DCs);
s 40(1)(b)(ii) and (7)(b) and s 41 - right of appeal against DCs' findings
s 42 - monitoring of disciplinary functions by the Ombud.
Chapter 6 - Legal Practitioners' Fidelity Fund
Chapter 7 - Trust money and accounting
Chapter 8 - General provisions, excluding s 93(5) - Offences relating to the Ombud
Chapter 9 - Regulations and Rules, excluding s 95(2) which deals with the rules relating to the Ombud
Chapter 10 - Part 3 - Transitional provisions; and Part 4 - Repeal of laws.

Attorneys can continue to interact with and refer enquiries to their former provincial law societies, which will be the regional offices of the LPC, at the following numbers:
Bloemfontein: (051) 447 3237
Cape Town: (021) 443 6700
Pietermaritzburg: (033) 345 1304
Pretoria: (012) 338 5800

2019 Fidelity Fund certificates
2019 Fidelity Fund Certificates are to be dealt with in terms of the requirements of the LPA and its Rules (gazetted in GG 41781 dated 20 July 2018). The application process will commence on 1 November 2018, although the new Fidelity Fund certificate online portal will be available only from 12 November 2018 on the Legal Practitioners' Fidelity Fund website at www.fidfund.co.za.

The requirements for obtaining a 2019 Fidelity Fund certificate in terms of the LPA are as follows:

The annual fee of R345 (VAT incl) must have been paid for the issuing of the certificate, as set out in Rule 48 of the LPA Rules. Timeous payment of the annual contribution is essential before application is made (refer specifically to the invoice number when payment is made to ensure the correct allocation of the amount paid);
practitioners applying for the first Fidelity Fund Certificate must submit proof of completion of Practice Management Training, subject to the provisions of Rule 27.1 of the LPA Rules;
timeous submission of the trust account audit report approved by the Council; and
the completed application is to be dealt with electronically on www.fidfund.co.za.
Dedicated staff members at the regional offices of the LPC (as above) have been made available to deal with enquiries relating to Fidelity Fund certificates.

Transitional provisions relating to candidate attorneys
Please consult the Memorandum on Candidate Attorneys currently serving under Articles of Clerkship. Read / download here.

Code of Conduct and robing
The Code of Conduct gazetted in February 2017 is not yet in operation. It will be gazetted for comment by the LPC prior to its finalisation and implementation. Please note that the provisions relating to robing in 12.18; 34.1 and 34.2, which require practitioners to robe in superior and lower courts in the same manner as they would robe in the superior courts, are thus not in force. Section 119(2) of the LPA states that

'Any -
(a) regulation made under any law referred to in subs (1) and in force immediately before the date referred to in s 120(4); and
(b) rule, code, notice, order, instruction, prohibition, authorisation, permission, consent, exemption, certificate or document promulgated, issued, given or granted and any other steps taken in terms of any such law immediately before the date referred to in s 120(4) and having the force of law, remain in force, except in so far as it is inconsistent with any of the provisions of this Act, until amended or revoked by the competent authority under the provisions of this Act.'


Regards

ANTHONY PILLAY
Acting CEO, Law Society of South Africa

LSSA Advisory 31 October 2018

Sunday, 28 October 2018

Don't kill your message, messenger!

Don't kill your message, as a messenger.

He stood at the pulpit, above the altar, bright light reflecting off his head. His hands moved in an ornate dance as he spoke, like a cricketer practising bowling, or a rather camp drag queen in a pantomime. His voice relayed a great exaggerated excitement, as he shouted into a dead-still microphone, which somehow withstood the figurative spell of his hands and shouty tone.

The priest speaking to the thousand parishioner captive audience at tonight's Roman Catholic mass, at the church I attend, for me, displayed everything I avoid doing when public speaking.

Shouting alienates your audience, and causes a fight and flight response in them - they are unlikely to remember what you said, and high frequency changes in tone and passionate hand movements distract from your message and pretty soon begin to annoy an audience when you have to present to them for any real length of time: just ask parents forced to watch children's shows.

When I was still a teenager, I remember reading a book where an aircraft was in quite a bit of trouble. The air traffic controller communicating with the person flying the plane was portrayed as having an unnaturally calm and steady voice. Emergency line operators often adopt something similar. So do attorneys and advocates who regularly frequent the courts: they have a clear, crisp voice, nearing as close to non-accented speech as they can achieve, with a mouth achieving sounds in a firm but relaxed manner.

When I was doing Practical Legal Training after university, I remember sitting through the speech of a similarly passionate, or perhaps faux passionate speaker, who shouted her way through her presentation to the class, gradually turning off almost every member of her audience, with an aggression that was not assertive. The lecturer praised her boldness and passion, while the audience was captive, but not captured or captivated.

Something you learn when often speaking before people is to throw your voice, and amplify its sound without engaging in the growling tone of voice that is the essence of shouting. A good speaker gains volume, without aggression, and passion, without force. They allow their voice and message to resonate in hearts and minds, and calmly draw their audience in, as though they were speaking to each in attendance, person to person.

The large parish I attend on Sundays rotates different priests relatively often, and I often enjoy ruthlessly judging them. A similar advantageous game is to observe politicians before parliament, such as Prime Minister's Questions in the British House of Commons.

A lot can also be gained from watching the process and proceedings before court. You can often guess the seniority of advocates by how they present. The longer they have been at the game, the softer spoken, and yet firmer in what they say, they become. A lawyer in their element will present with good volume, a magical calm, and a crisp and clear voice which is easy on the ears, even when speaking for hours at a time. The power of their words is in their argument, and they tend to feel no need to growl along with it. Many a public speaker could learn much from court attorneys and advocates in this regard.

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.

The difference between knowledge and 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'.

Are attorneys or advocates wealthier?

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?

Thursday, 9 August 2018

The washed up law graduates, who thought success was a sure thing.

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.

Tuesday, 7 August 2018

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 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?

Saturday, 4 August 2018

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.

Sunday, 29 July 2018

Keeping your firm and home safe.

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.

Saturday, 28 July 2018

New Look, New Logo, and New Content

I have extensively updated the looks, logo and contents of both this blog, and of my firm website, namely http://www.marcaup.com/. Please let me know your thoughts on the changes.

Thursday, 26 July 2018

An attorney losing a case is an incredibly rare event

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.

Saturday, 21 July 2018

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.

Wednesday, 18 July 2018

How to set up your 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.

Monday, 16 July 2018

How should attorneys dress for their Magistrate's Court appearances?

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.

Sunday, 15 July 2018

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

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.

Sunday, 8 July 2018

You must provide your employees with written terms of employment, by law, in South Africa

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.

Saturday, 7 July 2018

Advice for 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.

Sunday, 17 June 2018

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.

Tuesday, 12 June 2018

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.

Friday, 20 April 2018

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.

Marc Evan Aupiais

Marc Evan Aupiais

Read More!

Read More!
Subscribe to us!

Popular Posts