The rigidity of Roman law of contract was ameliorated by the introduction of normative principles allowing the adaptation of law to the changing needs of the times – often expressed as good faith. Law changes slowly but one must expect our law to be indigenised or, expressed less contentiously, adapted to express the prevailing public view of what is right. Why can’t Ubuntu serve a similar function in our law? Theory, but still: Reference
The offices of the Master of the High Court in Durban have been virtually closed owing to a sit-in by staff complaining of non-functioning air conditioning. Public Works is broke.
We have received notice of the intent to include the practice number of conveyancers in the preparation clauses of conveyancing documentation. This is probably a good thing as it would make the correlation of signatures of admitted conveyancers easier: provided that the Registrar of Deeds maintains a decent list of such practitioners, which is not currently the case.
With the previous minister in charge of the SAA facing being declared a rogue director, an article on the grounds for the removal of a director by the board of that company is topical. I hold an article by Prof Cassim (UNISA): ask me for a copy.
Sham trusts: what is the difference between a sham trust and piercing the veneer/alter ego of a trust formation? I hold an article on this topic by Prof Smith UFS; ask me for a copy.
I will be writing an ongoing set of notes on the attorneys’ profession and its idiosyncrasies. The first of these follow below and deals with morality or ethics; a slippery term at best. There are four essentials which characterise a profession namely:
a tradition of the highest service and integrity to a client, overriding financial considerations;
access restricted to those who have acquired a superior standard of intellectual education and training;
independence, allowing them to speak without fear of any person on behalf of clients; and
a controlling body of peers upholding its rules of conduct.
Few of us become lawyers because we passionately wish to uphold justice. In my case, I read law because some person had tested me and found me to be suitable material for the profession – hardly moral high ground as starting point. For many the profession is merely a business to be exploited for income, which results in money becoming the determinant of success (compare this to the struggle stalwart who declared that he did not join the struggle to be poor). The commercialisation of practice has resulted in the gaining of income often overriding ethics: a fault line which has resulted in a great many jokes and cartoons dealing with exploitative lawyers and which, unfortunately, are too close to the bone to ignore.
A week or so ago we held a meeting with the person in charge of the issue of rates certificates in Pietermaritzburg. He was quite pleased to inform us that only 40 working days would, on average, be necessary to provide a quote on a rates certificate and to issue a rates certificate. This being an average, one would expect half of applications to take longer. When this was a manual system it took three days to obtain a quote and two days to obtain a certificate. Progress?
The latest Property 360 reported on commercial property and rentals – the thrust of the note was that the poisonous cocktail of a shrinking economy, load-shedding, burgeoning rates and taxes, utility costs and so on has resulted in substantial rental discounts with most respondents of a survey saying that they expected a 5-20% reduction in property rentals, owing to the downturn. Eina!
Voetstoots: our common law stipulates that where you buy property subject to a voetstoots clause, you cannot hold the seller liable for latent defects of which he did not know. Developers cannot rely on such a clause owing to the provisions of the CPA (unless the purchaser is a juristic person with a turnover of more than R2m per year). Old news but still worth a look: Reference
Baldwin Properties has bought a 64-ha slice of land in in the Izinga Precinct, Umhlanga Ridge. The intent is to build 1286 residential apartments on this property (do you remember the Little Boxes song?).
The Real Estate Investor ran an article on serviced offices, and this is well worth looking at for those who have commercial properties for rental. See page 9 on Reference
Earlier this week the Labour Court, Johannesburg gave an order de bonis propriis (a punitive costs order) against the attorneys acting for the Minister of Water and Sanitation. The judge held the attorneys involved had been seriously and serially negligent – take a look: Reference
The minimum South African wage will increase to R20.75 per hour on 1 March. This equates to roughly R4000 a month.
The passing of an era: the Boy Scouts of America filed for bankruptcy this week. Part of the reasoning for bankruptcy proceedings, is to allow equitable compensation for victims of paedophiles (some 7800 perpetrators are listed) within that organisation. Tragic, see my notes on morality below.
Forestry SA has a new website – take a look: Reference
Whilst on forestry: SAPPI is to press ahead with a R7.7bn upgrade of its Saiccor mill at Umkomaas.
SAB (InBev) has announced a new BEE scheme: it says that those who invested R100 in its earlier SAB Zenzele scheme in 2010 will receive a pre-tax pay-out of R76k when the transaction unwinds. Remarkable – I must claim some credit for the financial performance of that company as my take-off of its products over that period has been substantial.
I was intrigued by a statement by the new CEO of Eskom who said regarding existing Independent Power Producers: Where it is appropriate, we will be looking at existing IPP contracts to understand what the cost implications are of those. Some of them, particularly in Bid Window 1 and 2, were negotiated at quite favourable rates for the IPPs and it is good that we look at those contracts and we understand what the mechanisms are by which we can reduce the cost of electricity, not only for Eskom but obviously for the whole country. If I were those guys I would worry.
African tough or just we don’t give a rat’s ass? Global NCAP has now cash-tested the Nissan NP300 bakkie: the European-built version received a four-star rating – the SA-built version zero. Nissan responded by saying that its number one priority is the safety of its customers… and that the locally built vehicle complies with South African standards. Sure.
The Maverick reported that the Department of Home Affairs is battling a host (said to be between 8,000 and 10,000) of lawsuits brought about by the Citizenship Act: the issues are the citizenship of those born of South African citizens outside of this country and that of those born of illegal immigrants within South Africa.
The South African ran an article this week on new taxes – one that Mboweni is said to be considering is a tax on so-called independent churches who are mulcting South Africans. The sentiment is supported but quite probably difficult to implement – there are institutional churches which have become very wealthy and one wonders whether that wealth is always ploughed back into our society (which is presupposed by the absence of tax). Alternatively, which promises are decent – old ones or new ones?
You might recall the suggestion, during SONA, that a Sovereign Wealth Fund be created? The suggestion was met with widespread derision; the thinking was that a bankrupt state could hardly have money to save? The suggestion might have another (more insidious?) origin: an article written by Prof Malikane (Wits) dealt with the creation of such funds and it was suggested that such funds are typically funded, in export-led economies, by a portion of the revenue generated by exports. His use of language suggests that he had a hand in the suggestion that this fund be created – so far so good – however, his suggestion is that the government should consolidate state ownership of mineral resources in the African Exploration Mining and Finance Corporation (our designated state-owned mining company). His suggestion goes further – that section 86 A the Mineral and Petroleum Resources Development Act be implemented, allowing the above corporation to acquire 20% “free carried interest” in all new natural resource-based operations.
The Stats SA Council has threatened to quit if that institution is not provided with a R200m cash injection in order that critical posts be filled. The chairperson warned that this agency was losing critical technical, analytic and other skills. So, we are broke but where does one spend what is available? Once we lose such skills at the level of our Reserve Bank, Treasury, Stats and the like, we are doomed. Spending one’s money alleviating hunger at the risk of running blind is a choice no one should have to make.
Seen against the background of a government which is spending R25bn per month more than it is getting in, this dilemma is indicative of a whole host of institutions which will become unsustainable if the underlying issues are not addressed.
At national level, our income deficit is expected to rise to 5.9% of GDP and to some 6.5% in the following year. A Wits economic Prof, quite reasonably I think, suggests that we should seriously discuss the (what he calls) the decumulation of quasi-public financial assets such as that held by the UIF and others. I say reasonably, as having a surplus on the one hand and the deficit elsewhere, within the same government, does seem irrational. Our problem lies in our understandable lack of trust in our public agencies and the quite reasonable belief that further funds spent in such agencies would be wasted.
‘In 2001 the deceased took his original copy of the 1997 will, urinated on it and then burned it. We hesitate to speculate how he accomplished the second act after the first. In any event, the deceased’s actions lead to the compelling conclusion he intended to revoke the 1997 will.’ – Estate of Stoker (a Californian case)
As aside: I know of such a resignation from the Pietermaritzburg Deeds Office many years ago – the gentleman concerned was sh@t on by the boss for again arriving late after a liquid lunch. He dropped the deeds he was examining down the stairwell, urinated on them and left. It was taken as a resignation.
‘Death is not the end. There remains the litigation over the estate.’ – Tolstoy
In practice We all know Martin Luther King’s I have a dream but the balance of the sentence is very seldom quoted, it reads: “that my four little children will one day live in a nation where they will not be judged by the colour of their skin but by the content of their character.” I had a partner who would woo clients by taking them, accompanied by his female PA nogal, to a t!tty bar. Another well-known rainmaker departed his office each morning with 12 cakes in the boot, to return with a sheaf of estate agent instructions. Is there any difference between soliciting over cake and tea as opposed to being one of the manne at a strip club? The fact is that both tactics worked (and still does!). Does being remembered for legal expertise, or being a fun guy, really matter, as long as one is remembered? The difficulty with the content of morals is illustrated by the following: if you’re an American president, having a fun fling with your PA (named Monica) you would be crucified but, if you were a French president, such conduct would probably not matter. The question is, at the end of the day, whether you would want a partner with the morals of a tomcat. Does it matter how one earns if one earns enough to meet your target?
One cannot escape the conclusion that the acceptance, by a board of such conduct, is indicative of the moral take of all the co-directors of such a company. Birds of a feather…
Universities Few of us would be unmoved by the violence and anger that has erupted at our universities. In my case, my knee-jerk reaction is to despise those who want an education, and often a pass, on a plate. One author, Barney Pityana, tackled the why of this: he sees the answer in a breakdown in leadership, management and governance – and equates this to what has happened in our public life generally: a morality that sees the University as a place to be exploited for its resources, returning as little as possible to make the institution sustainable. A right to milk the institution dry with impunity, obtaining a factory pass. He makes two obvious observations: the very people who the University seeks to serve are engaged in its destruction and the lack of public revulsion at the wholesale looting of the resources of such an institution seemingly endorses such conduct.
Whilst on the topic of universities: one video that went viral, depicted students jumping on a police riot vehicle and beating this with bricks et cetera. I have little doubt that my sentiments on this is shared by most South Africans: I longed for a big burly policeman to get out of there and beat the living daylights out of the spoilt little brats who seek to attack police with impunity and destroy the institution that (their parents??) and we pay for.