The Legal Practice Act, 2004 will be implemented in earnest on 1 November this year. Section 6(5)(i) thereof provides that its Council, must, at the Minister’s request, advise him on multi-disciplinary (legal) practices (MDPs).
MDPs don’t formally exist in South Africa but do elsewhere. I say formally, as there are many instances in which professionals group with others to provide a one-stop service. Think of banks employing accountants, accountants employing lawyers and so forth. The problem that one has is that the professional body that governs each will not allow a member to be subject to the governance of another body, of which he is not a member.
Purism means nothing to a consumer. The consumer simply wants the best of both worlds without having to do multiple consultations.
Recently the LSSA presented a roadshow on the new Act: I asked the worthy at the podium to give me a yes or no answer on whether he foresaw MDPs being allowed in South Africa. It took him 5 minutes to say nothing.
Speaking for myself, I have little doubt that MDPs will, at some point, form a part of our legal future.
The law fails to stop child abuse; right? At least one respected editor says so. BS: law is rooted in and reflects the sentiments of society. It can punish but not prevent. Prevention lies within the willingness of a society to countenance abuse.
Cases: Fraud unravels all
The summary of an SCA judgement, a that was handed down, states that an agreement of settlement of litigation, wherein the lawyer for one of the parties forged signatures, cannot be relied on by that party. I was most surprised that such a matter had gone to the SCA: one would have thought this to be self-evident. Looking at the judgement, the argument for upholding the contract, ran that parties could be held to a contract where the lawyer/agent of one, had exceeded his mandate on the basis of estoppel. The court would have none of it, holding that no consensus/agreement had ever been reached.
PS: At University we were taught that there is a difference between an agreement and contract. The former is unenforceable in law i.e. an agreement to meet for lunch. The latter is enforceable. To this day I am offended by the use of the former for legally binding deals by lawyers: to find this so used in an SCA judgement….
Our debate on land reform rages yet: I believe that some good will come of it as we should revisit the feudal practices which yet exist in our country; where those resident in the tribal areas obtain a Permission to Occupy (PtO) from the local chief rather than actual title. Such a PtO entitles one to occupy but does not give one ownership and thus the right to mortgage the property or, technically speaking, to sell it and so on. A well-known example of this misunderstanding comes from a report, some years back, that the Prez had mortgaged his home in KZN to pay for his indulgences. That this was not technically possible, was lost on most of his audience.
One way of enabling rural holders of a PTO in rural areas is to legislate that such permissions are land and can be “mortgaged”. In fact, the now disgraced VBS bank had reportedly granted such “mortgages”.
Very little needs to be done to allow this. If one were to legislate that such consents endure for a fixed period and may be sold or inherited, then the main remaining obstacle for registration is identification of the land which may be occupied. Whatever purists hold, many thousands of such occupation rights are dealt with daily without registered diagrams identifying the land given for occupation. Watered-down title is not new to South Africans and an alternative, less secure system, is preferable to that which applies in our tribal areas, governed, at least in popular perception, by whim.
Sale of State land
Our former Finance Minister (famous for the Gigaba Switch) had mooted plans to sell unused State land to fund unsustainable SOEs, stating that this would make some R40bn available for redistribution. Our total SA commercial real estate spend for the previous year was R13bn. One wonders where the money, to fund such an offload, would come from? One can also be forgiven for wondering why the issues of unsustainability is not addressed.
More on land
Prof Cousins, of the Dept. Poverty, Land and Agrarian Studies, UWC, again made the point that much of our debate and commentary on the issue of land reform is ill-informed as we do not have reliable data on the issue. A few points made by him are:
it is estimated that some 60% of all South Africans hold land or housing outside the formal registration system;
it is not so that the great majority of land restitution claimants have chosen cash rather than restoration: around 87% of land claims were to urban properties which could not be returned to the claimants;
the endlessly repeated assertion that 90% of land reform projects have failed has no foundation. He states that around 50% of such projects have improved the livelihoods of beneficiaries to a degree – this does not say that they have been highly productive; he merely notes that these have had the effect of reducing poverty and inequality.
The keynote speaker at the recent International Women’s day, held at Boksburg, said: “We did not check when we spent R50bn and got 4% of the land back, that water rights would have a severe impact on the parties that have acquired the land. They have been left without water access because those water rights are still being held by white landowners.” Really? But then, this was said in Boksburg…and such nonsense is indicative of the ignorance of the speaker and accepted as truth by a receptive audience…