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.

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.

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.

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.

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.

Signing a power of attorney ...

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

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

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

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

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

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

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

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

I have written on this from several perspectives.

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

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

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

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

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

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

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

Debt collectors cannot just do as they please in South Africa

Debt collectors cannot just do as they please in South Africa

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

In terms of s 1 of the act:


'“debt collector” means—

(a)

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

(b)

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

(c)

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


In terms of s 14 of the act:


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

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

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

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



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


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

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

(a)

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

(b)

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

(c)

utilise a communication which simulates legal or judicial processes;

(d)

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

(e)

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

( f )

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

(g)

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

(h)

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

(i)

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

( j)

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

(k)

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

(l)

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

(m)

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

(n)

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

(o)

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

(p)

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

(q)

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

(r)

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

(s)

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

(t)

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



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

(a)

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

(b)

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

(c)

makes use of fraudulent or misleading representations, including—

(i)

the simulation of legal procedures;

(ii)

the use of simulated official or legal documents;

(iii)

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

(iv)

the making of unjustified threats to enforce rights;

(d)

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

(e)

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

( f )

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

(g)

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

(h)

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

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

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

(a)

withdraw his or her registration as a debt collector;

(b)

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

(c)

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

(d)

reprimand him or her;

(e)

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

( f )

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

(g)

combine any of the penalties under this subsection.

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

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


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

Uncertainty about the use of Afrikaans in pleadings in South African courts

'English will be the only language of record in South African courts, Chief Justice Mogoeng Mogoeng said on Friday.

"Nobody is saying South Africans are not permitted to speak in their mother tongue in a court of law," Mogoeng told reporters at the office of the chief justice in Midrand.

"We are just saying, to facilitate efficiency and a smooth running of the court system, we would do well according to our experience... We [should] have everything that is said in a particular case captured in one language that is understood by all the judges - and that language is English," he said.

The decision was made during a two-day meeting held by the heads of courts, under the chairmanship of Mogoeng.' (City Press, 29/09/2017)

Everything said, traditionally includes the court record, often auditory in nature, and the pleadings. In that sense, it would seem all litigation must take place or be translated into English.

An early 2017 decision which seems largely confined to Saflii in being reported is one by acting judge, C R Jansen, in Pretoria, namely Lakey v Road Accident Fund (69036/2015) [2017] ZAGPPHC 245 (25 May 2017). It does not take into account the decision of the chief justice, which purportedly occurred a mere month before its final decision was announced, and which thus would be unlikely to apply to its pleadings, but nonetheless is entirely unmentioned.

Of language, it specifically says:

'THE USE OF LANGUAGE IN PLEADINGS
[31] The plaintiff s pleadings were drafted in Afrikaans. It is not appropriate to use Afrikaans in pleadings or in correspondence where other litigants involved are not conversant in the language, or where it can be foreseen that they may not be.
[32] In the present matter it was particularly inappropriate. The plaintiff testified in English and confirmed that his mother tongue is, in fact, English. More importantly, counsel for the defendant, Ms Kelaotswe, confirmed that she does not understand Afrikaans and that she can neither read nor write the language. Her position is most invidious. At the time of the trial she was still in the first year of her practice, and she informed me that when she receives Afrikaans pleadings or correspondence, she is compelled to have these translated at her own cost. This is most unfair towards her and is also a violation of what I consider the correct approach to be in respect of multilingualism in our courts.
[33] That multilingualism and tensions over the use of language is nothing new, is well illustrated in an insightful article written by Professor Gardiol van Niekerk entitled Multilingualism in South African Courts: The legislative regulation of language in the Cape during the Nineteenth Century.[12] The problem is as old as the law itself. There is a fair amount of literature available on the subject[13].
[34] The judicial branch of government has not yet framed a set of rules that deals with the issue of choice of language in courts. Neither the Superior Courts Act 10 of 2013, nor the Rules Board for Courts of Law Act 107 of 1985 seems to deal with this issue in any specifics.
[35] For the legislative branch Parliament has adopted rules as well as policies for choice of language use in the legislature[14], and for the executive Parliament has enacted the Use of Official Languages Act 12 of 2012 that creates the framework for implementing multilingualism in the national sphere of government[15].
[36] The absence of rules makes it difficult for a judge to rule on the issue without betraying his/her personal views on the matter. Apart from the rules of this court not dealing with the issue, I am not aware of any practice directive that deals with the issue. The references in Rule 4(11), Rule 60(1), Rule 61(1) and Rule 61(3) to language issues all seem to be obsolete provisions.[16]
[37] In the matter of Absa Bank Limited v Ferreira NO and Others,[17] Revelas J observed the following in respect of what the rules are m respect of the choice of language in pleadings and forensic conduct:
"[21] ...In my experience the practice adopted in courts in cases where persons prefer to use their mother tongue in preference to English is the following: a litigant may choose to litigate in any of the official languages but is not required to translate the pleadings and documents at own costf or the benefit of the party using a different language.
[22] Just as the defendants, in reliance on s30 of the Constitution have a right to litigate in Afrikaans, so the plaintiff has a right to litigate in English. There is no obligation founded in law, on the party who is dominus litis, to translate all its correspondence and process in ongoing litigation for the benefit of the defendant or respondent, as the case may be. It may be done as a courtesy or as an indulgence.
[23] The defendants have postulated the plaintiff's language policy with its customers as its choice of language when it litigates. These are separate issues entirely. The plaintiff is not obliged to conduct its litigation in Afrikaans and English simply because its opponent (as a customer) was dealt with in Afrikaans. Practical considerations ought to take preference when striking a balance between the right of a litigant to initiate litigation in the language of its choice, and the right of the party defending or opposing that litigation to use his or her language of choice. That means that neither party can prescribe to the other what language to use.
[24] If, for example, a person who only speaks isiXhosa, and who lives in a remote area in the Transkei, is cited as a defendant in civil proceedings drafted in English, he or she would not be entitled to insist that:
(a)    All documents served on him be in isiXhosa.
(b)   That all court proceedings be conducted in isiXhosa.
(c)    That the plaintiff's English speaking counsel argue the matter in isiXhosa.
(d)   That the magistrate or judge must conduct the proceedings and write thejudgment in isiXhosa.
[25] That would simply be impracticable..."
[38] The judge's summary of what appears presently to be the practice in South Africa is correct. However, the problem is that the practice has not been informed by a proper discussion within the legal community on this issue. I am not aware of any ruling made by any of the law societies or by the General Council of the Bar or any of its constituents in respect of choice of language. Yet I am aware of many informal and somewhat muted grumblings by practitioners about the insensitive use of Afrikaans in correspondence and pleadings. This case is a good example of the inappropriate use of Afrikaans.
[39] The problem with such a very sensitive matter, which is also a matter of constitutional importance, is that one cannot properly formulate a rule if there has not been a proper discussion of the issue. This discussion is dearly needed.
[40] It is respectfully not appropriate to revert to concepts such as dominus litis as the source of a rule for the choice of language. This may have been appropriate in the pre-democratic era, where there were only two official languages in South African courts, and all practitioners and judicial officers were required to be conversant in both. In such a system, it can easily be expected of any practitioner to read communications in a language other than his preference, but at the same time be entitled to present his or her case in the language of his choice, or, more appropriately, in the language of his client[18]. The dominus litis principle simply does not have the wherewithal to serve as the crucible for the recognition of the status of official languages in court procedings.
[41] Such a rule is simply not practicable in our system of multilingualism. In many instances, such as the present, it is insensitive, uncollegial and even socially obnoxious to use a language that may very well not be understood by the opposing party. On the other hand, all official languages must be used and developed to make their status as official languages real.
[42] In the ideal South Africa, practitioners and judicial officers will themselves be multilingual and would be able to accommodate most languages used in their particular region of the country. However, South Africa isn't anywhere near such a situation.
[43] I cannot take the matter any further other than stating that the use of Afrikaans in this matter for either correspondence or pleadings was most inappropriate. This type of litigation, as with most litigation, should be conducted in English as the only real lingua franca in South Africa. It also does not help that the professional bodies have not engaged in broader internal discussions and that they have not come up with specific rulings to assist practitioners.
[44] While the use of English as a default language is the only practical solution at present, I do not wish to be understood as saying that the use of Afrikaans or other indigenous languages in South Africa should not be used in courts or that their use should not be encouraged. To the contrary, the use of all 11 official languages in our courts should be something that the legal profession should positively support. It is a constitutional imperative.
[45] In ex parte matters, or in matters where it is known that all the parties are Afrikaans speaking, there is nothing inappropriate in the use of Afrikaans. In fact, it would be somewhat contrived and awkward not to use Afrikaans in such settings. The use of Afrikaans in such a context, where it does not offend or inconvenience, should be encouraged.
[46] The Afrikaans speaking community should also not be hamstrung because there appears to be a lack of language activism amongst speakers of indigenous languages. Language activism is deeply rooted in the socio-political fibre of many Afrikaans speaking South Africans, and this is most certainly not something to object to. Indigenous language speakers would do well to champion their constitutional language rights and to insist that it be used in courts as a primary language, and not only as a secondary translated language. But its use must be practical.
[47] The use of language in courts cannot be compared with the situation where an individual citizen insists on being served by an organ of state in the official language of her choice. In court proceedings, there are other people involved, such as opposing litigants, witnesses, judicial officers, assessors and attending public.
[48] Ultimately, the issue around language is something where an urgent discussion is needed in the legal community, and the inappropriate use of language in correspondence and pleadings can also not go without comment and some measure of censure.'

http://www.saflii.org/za/cases/ZAGPPHC/2017/245.html

It seems there was an account in the costs order for both the use of Afrikaans and the use of the wrong court. The case still leaves practitioners met with Afrikaans pleadings in limbo. If a summons is in Afrikaans and no translation is provided, should the respondent or a litigant responding to pleadings which were in Afrikaans give notice of and set down an exception that the opponent's pleadings are vague and embarrassing and perhaps also do not set forth a cause of action? After all, in the language of records of the courts, English, this seems to be the case, if the chief justice's diktat is to be deemed valid by a judge in a particular case.

The matter is further complicated by whether the chief justice even had the power to declare as he did. AfriForum vehemently denies this:

'An apparent decision to make English the only language of record in SA’s high courts will have grave implications for access to justice.
On April 16, the Sunday Times reported that the heads of courts had decided to make English the only official language of record in South African high courts.
The heads of courts are all judges president of the divisions of the high courts under the chairmanship of Chief Justice Mogoeng Mogoeng.
Correspondence was sent to the office of the chief justice on April 21, asking for an explanation on how such a decision was made and on what authority. To date, we have not received a response, hence our decision to write this open letter.

According to subsection 8(3)(b) and subsection 8(6) of the Superior Courts Act, the chief justice is not conferred with the powers that determine the language of record in South African high courts, regardless of whether or not the chief justice enjoyed the majority of support from the heads of courts as required by section 8(5) (a).
It is alarming that this alleged decision was made public in a national newspaper. However, it failed to appear in the Government Gazette, according to our research. This suggests that there was no constitutional or legislative authority enabling the chief justice to change the language of record in high courts and that such a decision can only be made by the executive, subject to Parliament’s oversight.
According to the Constitution, the state must take practical and positive measures to elevate the status and advance the use of African languages. Furthermore, all official languages must enjoy parity of esteem. These are the provisions that you, as chief justice, along with the heads of courts, must enforce and protect. In this light, we question how having English as the sole official language of record elevates the status of African languages, and reverses their historically diminished use.
The alleged decision instead elevates English to a superofficial language, contrary to constitutional provisions and, in doing so, undermines the rule of law.
The alleged decision transitions from a de facto bilingual language of record to a monolingual position. This weakens the argument for a linguistically inclusive legal system and undermines the principles of linguistic diversity and the basic right of access to courts, as protected in the Constitution. It inter alia compounds the cost for African language mother-tongue-speaking civil litigants whose trials are prolonged because of the involvement of interpreters and, possibly, translation services.
An exclusionary decision
Moreover, we question how this decision is constitutionally sound, with regards to an accused person’s language right. We firmly believe the alleged decision discriminates unfairly against accused persons on grounds of language, in terms of section 9(3) of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act, with specific reference to the requirement to promote diversity.
We question why no public participation or meaningful engagement was undertaken regarding using English as the sole official language of record. What motivated the decision and whose interests does this serve? It is our opinion that this is not to the benefit of linguistic inclusivity and the promotion of multilingualism, but rather an exclusionary decision that hinders access to justice.
The alleged decision to remove Afrikaans (and, by implication, negate all African languages) alongside English as a language of record is conflicted in light of the dictum in the case of Ermelo (2010), where the Constitutional Court held that: “... when a learner already enjoys the benefit of being taught in an official language of choice, the state bears the negative duty not to take away or diminish the right without appropriate justification”.
The same principle applies to litigants. Therefore, on what grounds is this justifiable? Is it possibly based on the kneejerk reaction of Afrikaans being used as a tool of oppression and discrimination? If so, how do you justify retaining English, a colonial language? And if it is an oppressive status quo the honourable chief justice is trying to reverse, why not elevate the African languages to languages of record? This would be constitutional and transformative.
According to the 2011 national census, only 9.6% of the population speaks English as their mother tongue. We question whether Legal Aid SA’s language survey last year, in which statistics proved that English was not the primary spoken language in civil matters across all provinces, was considered. In fact, the primary spoken languages across the provinces for civil cases were recorded at 21% isiZulu, 20% Afrikaans and 16% isiXhosa.
Similarly in criminal cases, for litigants, English was not the primary language spoken by the majority of people in the nine provinces. The primary spoken languages in criminal matters were 24% isiZulu, 22% Afrikaans and 20% isiXhosa.
The English proficiency statistics in criminal cases illustrate that, in all provinces, litigants’ proficiency in understanding, speaking, reading and writing English is either poor or satisfactory. Were these statistics considered and, if so, how is the alleged decision justifiable against these numbers? Research has proven that multilingualism is a resource and that budgetary constraints are a red herring.
We are suggesting that the alleged decision is not transformative and transparent, in line with the values enshrined in the Constitution.
We further suggest that a process of meaningful engagement and consultation be undertaken with all relevant stakeholders before making a final recommendation to the executive.
Furthermore, it is suggested that the office of the honourable chief justice prepare a proper language management plan for the various high courts to accommodate the use of the official languages in the various regions, in compliance with constitutional prescripts. It presently suggests a misinformed top-down decision, which ignores South Africa’s multilingual reality.
Zakeera Docrat is a master’s student in African languages at Rhodes University;
Professor Russell H Kaschula chairs the Intellectualisation of African Languages, Multilingualism and Education at Rhodes University;
Cerneels JA Lourens is a director at Lourens Attorneys;
Alana Bailey is deputy chief executive of AfriForum;
Annelise de Vries is language planning coordinator at AfriForum;
Professor Monwabisi K Ralarala is director of the Fundani Language Centre at the Cape Peninsula University of Technology' (City Press, 17/09/2017).

And so, uncertainty, overall, remains. I would still consider that if no translation of the pleadings is provided by the litigant using Afrikaans, that this could be vague and embarrassing. What other rules can a party rely upon? The above decision does set out that it would be unjust to force the litigant who litigates in English to translate the other party's pleadings at their own cost, and seems to use the costs order to somewhat punish the user of Afrikaans for various means of it wasting time in the litigation. Notably, however, this decision does not take account of the diktat of the chief justice, and seems to interpret language in a completely different manner than such sets out.

Nothing said herein should be relied upon as legal advice. For such, please see your attorney, and fully appraise them of your matter in consultation with same.

What law firms look for in candidate attorneys seeking articles of clerkship

On a group I help to admin, where the public, attorneys, advocates, students, candidate attorneys, police, prosecutors, judges, magistrates, and pupils, all interact, I noticed a trend among some aspirant candidates, which is not helpful to them. I therefore said the following:

'Given some comments from our new influx of hope-to-be candidate attorneys, I feel a need to share this point again.

Most of you will not get articles. That is a statistical fact. Universities push out far too many law graduates for the positions available.

Your 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.

An employer who had sought out candidates for a job, has pointed out, on our group, something I see all the time, CVs which are out of date and show poor use of English. A lawyer is a wizard of English and of using it to benefit their client in relation to the machinery of the state (courts) and of other powers.

If you are passionate about law and want to make it your career, improve your English. But, please be aware that many employers and their employees are members of this group. People are offered and refused jobs based on things they say here. Members are already complaining about some of you by name, and praising others by name. Lawyers Rule is part of your job interview. You are already making a reputation for yourself.

This is not a student group where activism and challenging everything gets you points. This is the big pond where the big fishes swim. Be aware that you are damaging your career prospects when you are rude or wrongly disruptive. Be aware that you will face the lawyers here at court and in future cases.'

I added, in reply to one of the many comments:

'The word attorney actually comes from the Norman French word for one appointed to represent another. In early English courts, proceedings were in Norman French, and recorded in Latin. This, in a country which spoke English. Language is nothing more or less than a skill. We all do need to amend something sometimes, and do make mistakes, but that commitment to excellence in the language of litigation is important.'

At time of writing this, 99 people had liked or loved the post on the group, so I am also placing the information here.

How to survive, as an attorney

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.

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.

The powers of a candidate attorney - can they represent clients in court?

The powers of a candidate attorney - can they represent clients in court?

If a candidate attorney has been granted their right of appearance for magistrates' courts, they may represent you in a magistrate's court on their attorney's behalf and on their attorney's instructions. They do have to work under the direct supervision of the attorney, and figuratively 'in their office'.

They can of course make some decisions on their own at court, where needed. This is often the case, as attorneys will, often enough, send their candidate attorneys, in their place, to court. A candidate attorney who has been one for long enough, or who has fulfilled some other requirements, may also represent a client in regional court, upon being granted a right to do so.

Articles of clerkship is a fixed term contract. While a candidate attorney is undergoing it, they can incarnate some of their principal's powers, acting as the attorney's tool and agent. For instance, I drafted wills, for my principal, and as checked and presented to clients by her, as a candidate attorney, as one of my many duties, back in the day.

The attorney is responsible for the actions of the candidate attorney, and in charge of them.

After they have finished their contract of articles or service, a candidate attorney ceases to be empowered to do the functions of an attorney until they are admitted as an attorney, at court, or for some reason engage in another contract of articles or service.

Nothing herein should be relied upon as legal advice. For that, please thoroughly brief your attorney, at a consultation, for such.

The difference between a lawyer, an attorney and a candidate attorney

A lawyer is anyone who does law for a living, from paralegals, to judges, to attorneys, to candidate attorneys, to advocates.

A candidate attorney is someone who has (generally) completed their LLB degree and who has engaged in a mandatory internship, known as articles of clerkship/contract of service, under the mentorship of an attorney. During this time, or after a practical legal training course, a candidate attorney is allowed to write the four board exams.

Once they have completed their 1-2-5 years of internship, depending on the type of articles they did, and once they have passed their fit and proper, and their board exams, a candidate attorney may apply to court to be admitted as an attorney.

Attorneys are allowed to give the general public legal advice, and to repesent them in courts of law, to draft wills and contracts for them, etc.

The processes that need to be followed for someone to change their surname.

Question: An attorney asks what processes need to be followed for a client to change their surname. They state that Home Affairs has told their client that they will need to make an application to court to do so.

My answer:

S 26(2) of the BIRTHS AND DEATHS REGISTRATION ACT NO. 51 OF 1992 states that: 'At the request of any person, in the prescribed manner, the Director-General may, if he or she is satisfied that there is a good and sufficient reason as may be prescribed for that person’s assumption of another surname, authorize the person to assume a surname other than his or her surname as included in the population register, and the Director-General shall include the substitutive surname in the population register in the prescribed manner.'

S27 of the same act, adds: 'Publishing of alterations and amplifications of forenames and surnames.—(1)  In the case of an alteration or amplification of forename or surname mentioned in sections 23, 24 (1) and 26 (2), the Director-General shall as soon as possible after such alteration or amplification has been authorized, cause any such alteration or amplification which relates to a person of age, to be published in the prescribed manner by notice in the Gazette.
(2)  Subsection (1) shall not apply where the alteration was authorized in the prescribed manner under a witness protection plan.'

The applicable regulations framework governing what good and sufficient reason is, is GNR.128 of 26 February 2014:  Regulations on the Registration of Births and Deaths, 2014 (Government Gazette No. 37373) which states, in regulation 18, re: Assumption of another surname:

'Assumption of another surname.—(1)  An application for assumption of another surname referred to in section 26 of the Act by a person of age must be made on Form DHA-462 or DHA-196 illustrated in Annexure 10 and Annexure 11, as the case may be.
(2)  The reasons referred to in section 26 (2) of the Act must relate to—
(a)
a change in the marital status of a woman;
(b)
assumption by a person of his or her biological father’s surname, where the father has recently acknowledged paternity in terms of regulation 13 or 14; or
(c)
protection of a person in terms of the Witness Protection Act, 1998 (Act No. 112 of 1998).
(3)  An application contemplated in subregulation (1) must be accompanied by—
(a)
a certified copy of the identity document or birth certificate of the applicant;
(b)
a certified copy of the identity document or valid passport of the biological mother or father or both parents of the child, as the case may be;
(c)
where applicable, a certified copy of the marriage certificate of the parents;
(d)
where applicable, a certified copy of the death certificate of any deceased parent;
(e)
where applicable, a letter issued by the Director: Witness Protection; and
( f )
proof of payment of the applicable fee.
(4)  Upon approval of an application contemplated in subregulation (1), any alteration of a forename, surname or assumption of another surname made in terms of section 24, 25 or 26 of the Act must be made—
(a)
by entering the altered forename or surname or assumed surname of the minor in the birth register; and
(b)
if the particulars of the person have been included in the national population register, by including the altered forename, surname or assumed surname in the national population register,
without erasing the previous forename, surname or assumed surname.
(5)  The assumption of another surname contemplated in subregulation (2) (a), (b) or (d) shall not have the effect of changing a person’s identity number.'

The current prescribed fee is set out in GNR.1123 of 28 December 2012:  Notice of fees payable (Government Gazette No. 36054), as 'R325-00' for 'An application by a major to assume a different surname: Provided that, should the applicant be lawfully married, the fee shall include the application of his or her spouse, as well as those of any minor, or if the applicant is divorced, a widow or a widower, the fee shall also include the application of his or her minor, if any.'

The forms to do the application are available at Home affairs. Any other reason would likely require an application to the High Court, setting out that something outside of the regulations is in fact good and sufficient cause for the purposes of the Act, despite what the regulations currently state, as the form, which I have a copy of, specifically allows a checkbox to be filled out of any of the above reasons, and only those reasons.

Nothing in this article should be relied upon as legal advice in any way or form. For that, kindly make an appointment with your attorney, and properly brief them as to all your facts and the nuances of your matter.

To be or not to be: an Attorney or an Advocate.

Question: Is it wiser to become an attorney or an advocate?

My answer:

An advocate is a court and procedural specialist. Very few people succeed at being advocates, as they rely on attorneys to brief them. I suspect this will remain so under the new Act, despite the allowance of some advocates to then be briefed directly.

An advocate must litigate to survive.

As an attorney, I prefer to settle matters outside of court, and can make money drafting things like contracts. I deal directly with the public and set about solving their various problems, and disputes, and advising them of their rights and remedies in terms of the law, and assisting them as regards such.

If you have any conflict between the two, become an attorney. That said, even that is a very difficult route. It doesn't involve a year without money, which new advocates must endure, if they become pupils. However, it is take no prisoners, candidate attorneys often earn a pittance, and many entry level legal jobs pay slaves' wages, and overwork the associates involved.

Success can be found in both the bar and the attorney's profession, but you will fight for your dinner every night.

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 either. Rather then be a legal advisor or countless other jobs.

Question: What is the difference between an attorney and an advocate?

My answer:

An attorney is a general practitioner of the law, who interacts with and is briefed by the public. They do everything from giving general legal advice, to the drafting of wills and contracts.

Most matters an attorney deals with never make it to court. We are like your doctor, who you see when you are ill. An advocate is a trial specialist. They specifically specialise in the procedure and process of court.

Many advocates even draft court notices for their attorneys, and in the case of High Court, appear for their attorneys, and co-sign the pleadings, unless an attorney has Right of Appearance in the High Court.

An advocate is briefed by an attorney, and the attorney deals with all the privileges of being someone dealing with the general public.

In terms of the new Legal Practice Act, an advocate will be able to be briefed directly by the public if they set up a trust account and follow those sorts of requirements. However, most advocates are unlikely to do so, because attorneys are less likely to use them at court, if they are competing with them.

How to become an advocate in the Republic of South Africa

I was asked how someone joins the sister profession of my own (I — being an attorney, not an advocate). Specifically, I was asked how a person may join the advocacy. This is my response as to the process, as I understand it to be.

To become an advocate, you need only be a citizen of good standing with an LLB equivalent degree.

Specifically, a citizen or lawfully-admitted, ordinarily-resident permanent-resident of the Republic, over the age of 21, duly qualified, such as via an accredited LLB equivalent degree, and if an attorney, your name should have been removed from the requisite roll of your own volition.

You are then admitted at court, as an Advocate of the High Court.

To become a member of the bar, is more complex.

You must apply and be accepted for Pupillage. You should be an advocate first, to do so.

You must pass your interview with the Pupillage Committee.

You then may commerce pupillage, a year of largely unpaid and monetarily unsupported work and study. In Johannesburg, lectures are provided for candidates.

After pupillage is completed, and the Bar Exam passed, an advocate then joins the local Bar, a member of the General Council of the Bar, and in Johannesburg, the Johannesburg Society of Advocates' Johannesburg Bar.

The Society the advocate joins will then attempt to place the advocate in a local group of advocates.

Et voila.

Someone asked if men or women are better lawyers. This is my response, as a lawyer.

Someone asked if men or women are better lawyers. This is my response, as a lawyer.

The best thing I could have done is learn computer programming. Law requires the best of a man and the best of what women are able to do, also. Intuition and the nitty gritty are learnt. Male and female practitioners do start out from different perspectives, but if they survive practice, they essentially become lawyers. The men become intuitive, the women become process oriented. Much like computer programing, you need to learn how to swim after falling into an ocean. I have learnt a lot from all the men and women I have worked for as a lawyer. What I learnt from the men was quite different from what I learnt from the women. We are different but equal, demographically, anyway. If you want to be a good lawyer, you really have to humble yourself and learn from the opposite sex rather than compete with them. For instance, inside I am an introvert, and cases are what fascinate me. I have learnt from the women that I have worked for, that people are incredibly important, in law. Not just legal principles.

Can Huur Gaat Voor Koop be contracted out of?

Question: can Huur Gaat Voor Koop be contracted out of and ordinary eviction processes thus not followed?

My Answer:

Huur Gaat Voor Koop is a real right of the lessee, not a contractual or personal right.

Where a sale of property has occurred, by means of registration of the property in the new owner's name, at the requisite territorial Deeds office, the lease has been transferred to the new owners of the property. If they want to evict, they have to follow the normal processes to do so. The same lease as was had with the old owner is had with the new owner. Neither the tenant nor the landlord can elect whether to uphold it. Rent is due to the new owner and use and enjoyment to the tenant, assuming in a short lease, there has been occupation of the property, and in a long lease, it has been registered.

The question dealt with a matter where the new owner then purported to make an oral agreement of lease with the tenant, already in occupation of the property. Oral and even tacit agreements of lease are valid in South African law. However, if the old lease set out a non-variation clause, it needs to be complied with, as the material terms of the lease between the old owner and tenant are now applicable to the new owner and tenant.

Huur Gaat Voor Koop applies automatically in terms of law. The lease is between tenant and owner for the use and enjoyment of the property. If the owner changes, the new owner becomes the lessor. Huur Gaat Voor Koop means that the contract of lease is between the owner, whoever the owner is, and the lessee. It is a concept that the new owner steps into the shoes of the old owner. It is a basic concept of law and to my knowledge cannot be contracted out of. The same lease as was had with the old owner is had with the new owner. Neither the tenant nor the landlord can elect whether to uphold it. Rent is due to the new owner and use and enjoyment to the tenant, assuming in a short lease, there has been occupation of the property, and in a long lease, it has been registered. There is of course, the decision of the court that an option to purchase of the lessee's, in the contract of lease, is not material to the lease itself, and thus does not transfer to the new owner. Generally speaking, there is however merely a stepping into the shoes of, at work.

In an example given in the actual question, a contract allows for a landlord to give a short notice to the tenant, to cancel the lease and evict them upon sale of the property by the landlord. For me that creates a problem of a term of the contract being variable and at the sole discretion of the party it benefits. I think it unlikely that term will be deemed valid. This is different from normal notice periods in hybrid leases.

If the person asking were evicting the tenant, firstly they should make sure they are representing the current registered owner. Secondly, they should not rely on such a clause. The clause is likely contra bonos mores, and void for vagueness, as essentially, a term of the contract is determined solely by one of the parties at a later stage. The lease purports to be a fixed term lease, but is contingent on an event entirely in the landlord's discretion, seemingly aimed at negating the tenant's real rights in relation to the property. This is not the equivalent of ordinary notice periods in a contract, but rather affects a material term, via vagueness. The landlord needs to follow the standard process of eviction. They shouldn't rely on that term, as it may be deemed unenforceable at law. In the case of a residential lease, the Consumer Protection Act, and Rental Housing Act will also play a role, as well as provisions such as those in the Prevention of Illegal Eviction of Unlawful Occupiers Act, and possibly the remedy for Spoliation.

An attorney dealing with such a matter would need to look into the ordinary notices the landlord would need to give and what normal time periods apply. A good start would be to check the copies of Amlers and Butterworths at their law firm. Before proceeding in such a matter it can be advisable to look at the titles for eviction, lease, vindication and the Actio ad exhibendum, in Amlers, along with its title on Spoliation.

Nothing in this post should be relied upon as legal advice. For that, kindly make an appointment with an attorney and brief them fully of your matter.

What sort of bodies enforce Public International law?

Question: What sort of bodies enforce Public International law?

My Answer

Public International Law is more of a soft law sort of system. Mostly, other nations, by their actions, cause countries to obey it. In the case of international criminal law, the International Criminal Court does such. Regionally, there are bodies such as the African Court of Justice and Human Rights, and the European Court of Justice. Such courts enforce treaties. Internationally, there is the International Court of Justice. Nations tend to obey the legal opinions of international tribunals, which tend not to create precedents in the traditional sense, with their decisions. Countries might use sanctions, or the like, to enforce laws. One body of international law enforcement, is found in the Security Council of the United Nations. Their diktats even affect South African lawyers, bound to enforce international law against individuals via FICA. Most of the time, compliance to Public International Law is enforced by other nations, and via nation-peer pressure. Bodies such as the Council of Europe, and the African Union can exert significant pressure from one nation to another.

Nothing in this post constitutes legal advice. For that, kindly make an appointment with an attorney and fully brief them of your issue.

Preserving Client Confidentiality, via the Implementation of an Encrypted PDF Letter Attachment System

With the amounts of money, and volumes of confidential information which attorneys often deal with, adopting safety protocols similar to those of financial institutions can save money, and help reduce confidentiality breaches.

Increasingly, attorneys and their clients are reporting cybercrime, including hacking. Solutions such as ProtonMail are effective, but require a client to set up an account for best usage. Simpler methods are easier to apply in most instances.

Use of encrypted, password protected PDFs as a solution

An easy way to protect sensitive information, and to, by and large, verify identity, and better ensure privacy, is to send sensitive information as (256 bit) encrypted, password protected PDF attachments, using programs such as Power PDF to encrypt information.

A client can then be WhatsApped or SMSed the (preferably 12+ character) decryption password, per document, and a summary of what the communication is. Alternatively, a client and attorney can agree to a matter specific unique password, in consult.

Ignoble Magic, the Origin of Law…

Ignoble Magic, the Origin of Law…

She’s a passionate figure, with dyed white dreadlocks. She is full of fire and gusto. In the video, published by UCT Scientist, of the encounter, she rallies against her enemy: science. If we are to understand the origins of science, in the ignoble past of taboo, charms, and so-called sympathetic magic, her views, while reprehensibly illogical, hold a lost logic in themselves.

Here is what she said:

'There is a place in KZN called Umhlab’uyalingana.'

'They believe that through the magic... you call it black magic,' she adds.

'they call it witchcraft...'

She asserts then that, 'you are able to send lightning to strike someone. Can you explain that scientifically because it’s something that happens?'

The Fallist, and leader of the Science Must Fall movement, as she became known across the country of South Africa, became famous overnight. She called for the scrapping, entirely, of Western science, in favour of magic.

Yet, magic has a lot in common with science. Sir James George Frazer, in The Golden Bough, claims that all magic is sympathetic magic, and that it can be divided into homeopathic magic – like affecting like- and contagious magic – the spread of elements of one thing into another. Sir James believed magic to be mere superstition, but also believed it utterly important in the development of our society.

An example of homeopathic magic is the voodoo doll, or effigy: what happens to the likeness is thought, with a complete faith, to happen to the victim. An example of contagious magic is the historical account that a Madagascan soldier would not eat a hedgehog, because hedgehogs are cowardly and curl up into a ball when attacked, and if he were to do so, he would most certainly become a coward. Likewise, a baseball player might believe that his sweat, on his dirty socks, from a past victory, will certainly allow him to win the next game, no matter how much his indignant teammates complain of his smell: the attribute of the socks, associated with past victory, is thought to be a charm by the sportsman.

Magic is thought to be the origin of many of the early religions. The Australian Aboriginals universally practiced magic upon arrival of the colonists, they did not however practice an advanced religion with a great priesthood. Societies at a more primal stage, universally, have taboos and charms, but many don’t have religion. Magic is absolute. If a person correctly does the ritual, there is no doubt in his mind that the magic will mechanically occur. Religion is a belief in intervention in the time-space continuum by beings which disrupt the mechanisms in the universe. To early man, the gods were merely invisible sorcerers. A magician may enslave these deities to his will, whether demons or gods, but a religious man seeks to approach them to please them, propitiation, in order to gain something of value from them. He also seeks to not displease them, lest a curse come upon him.

The 12 tables of the Roman Empire are the origin of law in Europe, and in places like South Africa. They would one day cause the Emperor Justinian’s Corpus Iuris Civilis to come about, the body of the civil law.

Yet, while setting out laws, the priesthood relied upon which day a suit was brought to determine whether plaintiff or defendant won. The Germanic tribes, who rediscovered some of Roman law would likewise use seemingly supernatural means to determine whether laws had been broken.

In Great Britain, from which South Africa gains its law of evidence, something called the ordeal was used, according to records, to determine the guilt of murderers. A loaf of dry, stale bread was given to the alleged killer, who was then to swallow it, after a prayer to the deity, asking to be protected or killed based on guilt. If the bread lodged in their throat and killed them, they were surely guilty. If the potential murderer survived, they were innocent.

Of course, the example of the ordeal actually is a rather sneaky one. It usually got it right.

A person who is nervous will not salivate as much, their mouth will become dry. Someone who believed they would be found guilty, and thus felt nervous, was sure to be killed by the ordeal. An innocent person, would trust the divine to hold them out as innocent.

Linda Rodrigues McRobbie, writing an article entitled 'The Strange and Mysterious History of the Ouija Board' for Smithsonian Magazine, on October 27, 2013, details the fascinating history of the 'talking board'.

While the bible might condemn necromancy, and one need only look at the tragic example of King Saul for this, when the Associated Press, in 1886, reported that boards similar to the Ouija board were becoming popular for communing with spirits, mainstream American Christians tended not to see anything wrong with talking to the other side.

In 1890, Charles Kennard, from Baltimore, Maryland, and his four investors, including an attorney named Elijah Bond and a surveyor called Col. Washinton Bowie, set up the Kennard Novelty Company. Elijah’s sister, Helen Peters, was quite into spiritualism (communing with the dead), and asked the board what it itself was to be called, it is reported to have replied: 'Ouija'. When asked what Ouija meant, it said 'Good Luck'. It was later 'proven' to work when Helen demonstrated its efficacy by revealing the name of a patent office official. It was thus given its patent and went on sale. Elijah, being a lawyer, likely knew the name of the patent official.

Helen admitted in a letter that when she asked the Ouija board what to call it, she was wearing a locket with a picture of a woman above her head. It was likely one of women's activist, Ouida, whom she is known to have admired. Modern studies of the talking board, find it is likely ‘effective’ due to a scientific principle, rather than due to magic. With the release of the Exorcist, the Ouija board became a gateway to Satan, and its audience changed from average Americans, to those wanting a taboo thrill. That is not to say that the talking board did not instruct the odd person here and there to murder people, which American archives show it did, and that they did.

The Ouija board works based on something called ideomotor action, subconscious movements of the human body which we would not notice if we were not told that they came from somewhere else, whether other participants in the bizarre game, or ‘the spirits’.

As the Smithsonian, in the late 2013 article, relays: ‘Two years ago, Dr. Ron Rensink, professor of psychology and computer science, psychology postdoctoral researcher Hélène Gauchou, and Dr. Sidney Fels, professor of electrical and computer engineering, began looking at exactly what happens when people sit down to use a Ouija board.’

'Their initial experiments involved a Ouija-playing robot: Participants were told that they were playing with a person in another room via teleconferencing; the robot, they were told, mimicked the movements of the other person. In actuality, the robot’s movements simply amplified the participants’ motions and the person in the other room was just a ruse, a way to get the participant to think they weren’t in control. Participants were asked a series of yes or no, fact-based questions (“Is Buenos Aires the capital of Brazil? Were the 2000 Olympic Games held in Sydney?”) and expected to use the Ouija board to answer.

'What the team found surprised them: When participants were asked, verbally, to guess the answers to the best of their ability, they were right only around 50 percent of the time, a typical result for guessing. But when they answered using the board, believing that the answers were coming from someplace else, they answered correctly upwards of 65 percent of the time. “It was so dramatic how much better they did on these questions than if they answered to the best of their ability that we were like, ‘This is just weird, how could they be that much better?’” recalled Fels. “It was so dramatic we couldn’t believe it.”

'The implication was, Fels explained, that one’s non-conscious was a lot smarter than anyone knew.

'The robot, unfortunately, proved too delicate for further experiments, but the researchers were sufficiently intrigued to pursue further Ouija research. They divined another experiment: This time, rather than a robot, the participant actually played with a real human. At some point, the participant was blindfolded—and the other player, really a confederate, quietly took their hands off the planchette. This meant that the participant believed he or she wasn’t alone, enabling the kind of automatic pilot state the researchers were looking for, but still ensuring that the answers could only come from the participant.

'It worked. Rensink says, “Some people were complaining about how the other person was moving the planchette around. That was a good sign that we really got this kind of condition that people were convinced that somebody else was there.” Their results replicated the findings of the experiment with the robot, that people knew more when they didn’t think they were controlling the answers (50 percent accuracy for vocal responses to 65 percent for Ouija responses). They reported their findings in February 2012 issue of Consciousness and Cognition.

'“You do much better with the Ouija on questions that you really don’t think you know, but actually something inside you does know and the Ouija can help you answer above chance,” says Fels.'

Hypnosis, likewise, is sometimes able to gain details in the subconscious that we are unaware of.

The Ouija board, like the Ordeal, is so popular, because, due to a hidden scientific principle, it is actually effective. Magicians and sorcerers of old had to be accurate in their predictions and their use of magic, or they would be exiled or killed. The kings of Mexico would promise to bring rain and to perform other supernatural duties. Others still, such as in Britain, were thought to be able to cure disease. A sorcerer who brought the rain gained power and wealth from his contemporaries, one who, for some unbeknownst reason, wasn’t able to, one year, was lucky if he or she survived.

It is believed that movement from superstitions such as those in sympathetic magic, which develop inevitably into charms for good fortune, or taboos which bring forth evil, towards science, came from the efficacy of some forms of magic. Dousing the arrowhead with poison inevitably brought game down quicker. Living in rain plains brought more assurance of rain. Understanding real signs in the sky and elsewhere of drought meant that a rain maker was more likely to be employed and not murdered.

Those who engaged in using lightning to kill enemies, like the Fallist’s heroes, might instead simply settle for any sort of death when the lightning proved ineffective, and might tell a customer to prick their enemy with poison or pour it in a drink.

The Temple of Apollo of the Oracles of Delphi, was located over natural gas, which is hallucinogenic. The priestess who went into a trance would utter nonsense, which her assistants would translate, sure it was divine. They themselves were subconsciously aware of many things in the world, as everyone brought their problems to the Delphi temple. While believing it was magic or rather religion giving them answers, they in fact had the same sort of subconscious knowledge that practitioners of the Ouija board do. Magic which works brings its magicians good luck, and magic which works tends to be magic based on science.

So, how does this relate to law? Even our scientific rules originate in us as children as taboo and as charm. Jump from too high and you will be hurt. Touch the stove and you will surely be burnt. After a while it becomes more specific: jump too high and land incorrectly and you will be hurt, touch a hot stove and you will suffer burns, but you may not suffer burns if you run your hand under cold water for ten minutes immediately afterwards.

In South Africa, the tribal chiefs gained their power due to witchcraft. They promised their tribes they would protect them from witches, and were given the power to allocate or remove land from their followers. In North Africa, the opposite happened. People even crucify cats believing they may be witches, yet the great leaders, since times immemorial, in much of Africa, have surrounded themselves with supposedly powerful sorcerers, or been so, themselves.

As I wrote on the Ebola epidemic in 2014:

Those who enjoy the works of JRR Tolkien, will be familiar with a scene where Gandalf the Grey is treated with deep suspicion, because he always comes where something is wrong. The people thought perhaps he was the cause of the wrongness. He was merely there to try and prevent it. One of the great written linguistic traditions of humanity comes from China, where the written work came from omens in bones. Signs of the supernatural can pervade human thinking. During the plague it was believed that spraying oneself with toilet water could spare one from the disease. Of course, toilet water, refers not to something present in a toilet but a certain form of low scented perfume, also known as eau du toilette. People believed that foul smell itself spread the horrid disease, rather than only being a symptom of it. Belief in vampires also came from that period, the plague dead often appeared to move in their state of decomposition.

Media have relayed how African villagers see a white person and go running away in fear, shouting ‘Ebola Ebola.’ With doctors unable to treat victims and ordinary nurses and others claiming to have a cure for Ebola, the virus has spread further and further.

If your witch doctor tells you not to go to the well by the banana tree, and you believe he is a true witch, then you will treat that well as anathema. A king or chief who promises his subjects his protection, must account for when bad things happen to them, whether due to his failure, or due to that of his witch doctors. Witch doctors, priests, seers and sorcerers are powerful, they may throw bones and determine that you raped or murdered someone, or that you need to be sacrificed to the gods, or even in one of the recorded cases, to a tree.

Research has found that ancient religion destroys the democracy of early people, where everyone is answerable to themselves, and in turn brings about hierarchy, the very basis of civilisation in any citified settings. This hierarchy is more pronounced, where human sacrifice is practiced, and research shows that it is mostly those from lesser status who are the victims of the sacrifice.

Just as the Roman Law which has become enshrined in the laws of continental Europe, and heavily influenced the laws of the rest of the world, originated in the charms and superstitions of certain days, and in the religion of the Romans, international law has its roots in the laws of Christendom, the laws governing actions between Christian nations. Law inevitably begins in either magic or religion, and gradually generally gains a more secular character.

Have you ever said to yourself: but I’m a good person? Or said to yourself, he is a bad person, he will get what is coming to him. What about those preachers who claim that natural disasters are punishment? Do you believe in karma? In comeuppance, in justice? There is a fine line between expecting something to happen, and making it happen, because it is expected; after all, when we refer to what should be, we refer inevitably to what is expected to be. It is rather embarrassing to not have your expectations met, isn’t it?

You see, being a good person is a charm, and being evil is a taboo. We instinctively believe that the universe is out to get bad people. If you murder, or rape or pillage: you will be hurt as a result. If it doesn’t happen, it is because we don’t see it happening, or it must inevitably happen in a next life or afterlife.

When we engage in the correct rituals, when we treat our fellow man fairly, and avoid doing that which is taboo and do that which is charm, we expect to live a good life. When, however, something bad happens to us as a good person, we either lose faith in our charms and taboos, or we become angry, sad, disappointed, etc. There is a reason we shame ourselves when we are victims, or shame others, and it is an ignoble one.

Rather than seek out the, it turns out after our bad luck to be false, witch doctor for a satisfactory killing in which he is to be the victim, we tend to get angry with the person who does not adhere to the same charms and taboos as we do. If being a good person means that good things must happen to us, because we did all the right charms, and avoided all the right taboos, then we must be compensated when evil happens to us, and what better source of that compensation that the offender who engaged in taboo, and thus will in any case have evil happen to him. Why shouldn’t that evil be put to use to help us, the victim?

This is the origin of restorative justice. John raped Mary, in the Brazilian Amazon, therefore John must give Mary a wild pig to eat with her family in order to restore her to a better life. Not that just by western standards, is it? Or Jacob Raped Mara, in ancient Israel, therefore Jacob must support Mara’s material needs as his wife for the rest of his life (never mind that being around him might be traumatic for Mara). Restorative justice is what, in South Africa, we call delict, and what, in the United States of America, they call tort.

A fascinating study looked into standards of fairness across cultures. ‘A’ was given an amount of money, let’s say 100 $US, and told to offer ‘B’ a portion of it. If ‘B’ accepted the portion, then they both got to keep their shares. If ‘B’ rejected the offer, both lost out. In the Western world, it tended to be offers closest to 50% which were accepted. In other parts of the world where gift giving for favours is common, the split most accepted was unjust by western standards. Imagine accepting something like just 10% as just, doesn’t it anger you, would you really offer ‘B’ something like 90%? And in other parts the opposite was true, and the receiver was happy to get scraps. Justice was not an absolute. Oddly, in the west, an offer of say 70% to the other, would still be rejected. ‘B’ felt that he or she was being bribed and rejected the 70% they could have had, and denied ‘A’ his or her 30% as a result. The same rule went with the standard amounts of other cultures. It was, essentially, taboo to take more or less than what was just.

Of course, if those who engage in taboo behaviour are going to be punished by the universe anyway, then why shouldn’t the victim or the medicine man, or the tribal elders be the ones who inflict that harm. After all, if the universe in any case is going to hurt those who engage in taboo, then what wrong is there in helping it along, surely you yourself won’t incur taboo by that? Is this not the origin of the vigil ante, and of the court of law? This is the origin of the criminal justice system.

Classical jurisprudence holds essentially that the sovereign’s word is law, and that the sovereign is the figure that society habitually obeys. Sovereigns in the past have claimed to be gods, such as the Pharaohs of Ancient Egypt, such as Cleopatra, and the Emperors and Caesars of Rome, who had their own emperor worship cults to glorify them. Others claim to be powerful high priests or to be heads of national churches, such as the current monarchy of Great Britain, which rules the Anglican Church. Others claim to be great sorcerers. If a monarch has a divine right to rule, then disobeying their word is taboo, is bad luck, and obeying them is charm, is good luck. Rising up against a monarch who has the backing of God is rising up against God himself or herself.

Of course, while priesthoods in many ancient lands, and even in modern ones, such as Iran, hold great power, and keep their rulers in charge by taboo and charm, or religious curse or blessing, like in ancient, Rome, and like with what happened with science, laws tend to secularise over time.

I may break a mirror, walk under a ladder, and cross a black cat and not have any bad luck, but someone who murders another might have to account to their relatives. The sorts of things which religions all tend to commonly condemn are remarkably similar. Murder, theft, and so forth. That which is taboo, is also sometimes that which is unwise. That which is taboo for a leader to allow, can also be unbeneficial to him or her to allow. That which is taboo and superstition, but adhered to out of habit on the word of the sovereign, thus also becomes that which is rational to adhere to.

Thomas Hobbs in Leviathan, portrays the state of man in nature as savage, short-lived, and full of cruelty and calamity. He seeks to make such a state taboo, in order to justify overreaching statist forces of his time. In truth, the state of man in nature is well known. People in nature often interact with other primitives in a manner which is respectful. It is when they start to appoint chiefs and chief sorcerers, that the violent nature of man begins to emerge.

Modern jurists tend to point to natural law: to that which can be reasoned to be wrong in a rational manner: murder, theft and so on. Yet, even at the stage of mere taboo, law remains law. The refinement to adhere to rationalism, and to ensure the longer existence of the taboo, as it is a rational taboo, is merely what happens to law over time.

Have you ever disobeyed a taboo, and felt a great joy when some evil did not immediately strike you down where you stood? Habitual criminals can become addicted to the high that comes with getting away with breaking the law. If you break a law and evil does not befall you when you expected it to, then you have defied a taboo. Perhaps this gives you a sense of your own worth, of your power.

Others break a law and expect to be caught and punished, they expect it as though it were inevitable.

Still others refuse to break any law, because they know they will surely be caught, whether due to extensive enforcement, ever vigilant enemies prowling about like lions after their prey, or due to taboo.

Those who obey the taboos and the charms of our society, often become furious with those who do not. After all, if such people get away with it, then perhaps being a good person is not such a charm, and being bad is not such a hassle. People who obey the law tend to feel the need to make sure crime does have a cost for the criminals, because otherwise the charms they follow and the taboos they avoid are all in vain.

Where disobedience is on purpose, the response tends to be anger, where it is unintentional, frustration.

Of course, bad things do happen to good people. Religion tends to differ from magic in that respect. The Buddha saw life as about suffering and thus created a plan to escape it to Nirvana. Jesus Christ, the Christian Messiah, confronted people who said those who were victims of a building collapse must surely be evil, in saying that all then alive (except him, being God), were equally deserving of any such thing, and is recorded as saying that God sends the rain on the good and on the bad, and that only God is good.

The truth, of course, is that many good people die terrible deaths. In Christianity, my own religion, these are called Martyrs. Jesus, himself, the founder of the Christian religion, died, tortured on a cross. Likewise, many evil people live long, enjoyable lives in the lap of luxury, much loved by friends and amidst happy fountains of descendants. The answer Christianity has to this is hell, where evil people are given their due, and perhaps purgatory, where almost good enough people are purified of their sins. Heaven, of course, is a just reward for a just life, and is where the martyrs go. If injustice is not punished, smitten even, and if moral living is not blessed, what good is there in living a good life?

To the religious, being evil is a curse upon yourself, while being good is a blessing. To the superstitious, being evil is a taboo, while being good is a charm. To the scientific, being good is wise, while being evil consists of doing unwise things. What is good after all, except that which leads to life, and what is evil, except that which causes death. In the Garden of Eden, Adam and Eve are said to have eaten from the tree of knowledge of good and evil, despite God warning them that they would surely die. Indeed, death is bad, and life is good: and it could be said that they gained that knowledge when they became mortal like the rest of us.

Many modern jurists fit themselves squarely into the third category. The law must be wise, or it is not law.

In truth, law based on taboo or curse is law, so long as it is enforced by an authority. Having knowledge of the law, much as magicians have knowledge of magic from their grimoires and books of shadows, allows one to use the law to one’s advantage, and to avoid being penalised by the authority, whatever it is, which enforces it.

The ancient Israelites boasted that their law, which included putting sorcerers, and fornicators to death, was much admired throughout the ancient world. Likewise, Western nations boast of their legal systems, and how rational and well thought out they believe them to be.

In truth, law is just law, it doesn’t have to be a just law to exist. Its origins are not in a contract to a commonwealth, or a rationalisation of nature’s truths. Law’s origins are in the way the human mind works, how we automatically believe that like breeds like, and that contact breeds contagion. Just as science has emerged from magic, rational law has emerged from taboo. This is not something to hide from or lament, for it is inevitably a good that from mere ignoble magic we have gained the great skeletal structure of human society, law.