THE SA ATTORNEYS' JOURNAL A - - COMMUNICATION MEDIA COMMUNICATION MEDIA SHIFT SHIFT Special 'electronic' issue SOCIAL SOCIAL Special 'electronic' issue November 2012

NEYS' JOURNAL 9 30 14 17 DE REBUS - NOVEMBER 2012 - 1 - CONTENTS THE SA ATTORNEYS' JOURNAL NOVEMBER 2012 Issue 525 ISSN 0250-0329 11 14 16 34 Regular columns EDITORIAL Urgent action for conflicting judgments 3 LETTERS 4 NEWS Independence of the legal profession, like the judiciary, is paramount - Public Protector 7 Suicide notes as wills on FISA agenda 8 Section 197 of the LRA scrutinised 8 New CLS director 9 Role of competition law in a democracy 9 New law journal 10 Nadel workshop to empower women 10 Confidence in LLB drops further 11 Public Protector reports back 11 University of Pretoria wins human rights prize 12 Calls for scrapping of Traditional Courts Bill continue 13 President Zuma addresses Johannesburg Attorneys Association at its 70th AGM 14 2012 Lex Informatica Cyber Law Conference 17 LSSA NEWS LSSA appears before parliamentary committee on Traditional Courts Bill 20 Attorneys invited to coach students in third national schools moot competition 20 High-profile lawyers to deliver addresses at Commonwealth Law Conference 21 December deadline for 2013 practice management training intake 21 PEOPLE AND PRACTICES 23 5 MINUTES WITH ... 25 THE LAW REPORTS 47 CASE NOTE 51 NEW LEGISLATION 53 EMPLOYMENT LAW 55 TAX LAW 57 RECENT ARTICLES AND RESEARCH 59 BOOKS FOR LAWYERS 60

FEATURES 26A COMMUNICATION SHIFT 26 The rise of social media platforms has significantly changed the way people communicate with each other. While social media creates new opportunities to engage with clients, it also gives rise to risk that must be managed. Kathleen Kriel, Nomfundo Manyathi and Mapula Sedutla aim to assist attorneys in doing so. 30 34 DISCOVERY OF ELECTRONIC DOCUMENTS AND ATTORNEYS' OBLIGATIONS Nowadays documentary evidence is largely in electronic form and discovery will therefore be incomplete if it does not include such documents. Joe van Dorsten argues that attorneys who fail to ensure proper discovery open themselves to being accused of gross incompetence. TECHNOLOGY THE ANSWER TO S 129 DELIVERY 38DILEMMA In light of the poor delivery rate of registered mail, Paul Esselaar suggests that the most successful method of bringing a notice in terms of s 129 of the National Credit Act 34 of 2005 to the attention of a debtor may be by sms on a cellphone. 40 44 SOCIAL NETWORKING FOR ATTORNEYS This article by Kathleen Kriel, Nomfundo Manyathi and Mapula Sedutla examines how best attorneys can use social media platforms to their advantage. In doing so, it focuses on the use of Facebook, Twitter, LinkedIn and blogging. 38 ADVANCED ELECTRONIC SIGNATURES DE REBUS - NOVEMBER 2012 - 2 - 44 Advanced electronic signatures and digital certificates enable practitioners to keep pace with technological developments without sacrificing the integrity of the process and the documents involved, writes Grant Christianson. SIMPLY UNCLEAR The legislature has sought to espouse plain language principles through various pieces of legislation; however it has not embraced these same principles in its drafting, according to Bevan Frank. The result, he claims, is unclear and ambiguous wording in several Acts. Editor: Kim Hawkey BA LLB (UCT) BA Hons (Wits) attorney and conveyancer dEputy Editor: Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) NEws Editor: Nomfundo Manyathi NDip Journ (DUT) BTech (Journ)(TUT) suB-Editor: Kevin O' Reilly - MA (NMMU) suB-Editor: Kathleen Kriel - BTech (Journ) (TUT) Editorial sEcrEtary: Shireen Mahomed Editorial committEE: Sithembele Mgxaji (Chairperson), Peter Horn, Danie Olivier, Mohamed Randera Editorial officE: 304 Brooks Street, Menlo Park, Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. Tel (012) 366 8800 Fax (012) 362 0969. E-mail: derebus@derebus.org.za DE REBUS oNliNE: www.derebus.org.za coNtENts: Acceptance of material for publication is not a guarantee that it will in fact be included in a particular issue since this depends on the space available. Views and opinions of this journal are, unless otherwise stated, those of the authors. Editorial opinion or comment is, unless otherwise stated, that of the editor and publication thereof does not indicate the agreement of the Law Society, unless so stated. Con tributions may be edited for clarity, space and/ or language. The appearance of an advertise ment in this publication does not neces sarily indicate approval by the Law Society for the product or service ad ver tised. De Rebus editorial staff use the lexisNexis online product: MyLexis- Nexis. Go to www.lexisnexis.co.za for more information. priNtEr: Ince (Pty) Ltd, PO Box 38200, Booysens 2016. audio vErsioN: The audio version of this journal is available free of charge to all blind and print-handicapped members of Tape Aids for the Blind. advErtisEmENts: main magazine: Ince Custom Publishing Contact: Ian Wright * Tel (011) 241 3281 * Fax (011) 241 3040 Cell: 082 574 6979 * E-mail: IanW@ince.co.za classifieds supplement: Contact: Kathleen Kriel Tel (012) 366 8800 * Fax (012) 362 0969 PO Box 36626, Menlo Park 0102 * E-mail: yp@derebus.org.za accouNt iNquiriEs: David Madonsela Tel (012) 366 8800 E-mail: david@lssa.org.za circulatioN: De Rebus, the South African Attorneys' Journal, is published monthly, 11 times a year, by the Law Society of South Africa, 304 Brooks Street, Menlo Park, Pretoria. It circulates free of charge to all practising attorneys and candidate attorneys and is also available on general subscription. attorNEys' mailiNg list iNquiriEs: Gail Mason Tel (012) 441 4629 E-mail: gail@lssalead.org.za All inquiries and notifications by practising attorneys and candidate attorneys should be addressed to the relevant law society which, in turn, will notify the Law Society of SA. suBscriptioNs: General, and non-practising attorneys: R630 p/a Retired attorneys and full-time law students: R484 p/a Cover price: R66 each Subscribers from African Postal Union countries (surface mail): R1 001 (VAT excl) Overseas subscribers (surface mail): R1 222 (VAT excl) NEw suBscriptioNs aNd ordErs: David Madonsela Tel: (012) 366 8800 * E-mail: david@lssa.org.za Mpasa logo.fh11 6/17/09 3:10 PM Page 1 Composite C M Y CM MY CY CMY K © Copyright 2012: Law Society of South Africa 021-21-NPO Tel: (012) 366 8800 Member of the Magazine PublishersAssociation of South Africa. Member of The Audit Bureau of Circulations of Southern Africa

DE REBUS - NOVEMBER 2012 - 3 - EDITOR'S NOTE Urgent action for conflicting judgments Conflicting judgments by different divisions of the High Court are not only undesirable, but the result may also infringe on the rights of the public, especially when they relate to matters of great import, such as an individual's home. The consequent lack of clarity when the courts reach contradictory outcomes threatens one of the basic tenets of the legal system, namely legal certainty. This foundational principle or value of the legal system is essential for predictability, allowing people to regulate their conduct to ensure it meets the required standard. Two recent examples of the impact of conflicting High Court judgments that have featured in De Rebus relate respectively to the meaning of 'delivery' for the purposes of s 129 notices under the National Credit Act 34 of 2005 (see p 38 and p 49) and to rights afforded to attorneys in terms of the Right of Appearance in Courts Act 62 of 1995 (see 2012 (Sept) DR 18). In the former, varying interpretations of one word, namely 'deliver', have led to conflicting outcomes in various divisions of the High Court. In these matters a s 129 notice had been sent by the credit provider to the defaulting debtor by registered mail to the relevant post office, but had been returned to the credit provider. In June the Constitutional Court, in Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC), ruled that not only must s 129 notices be sent to defaulting debtors by registered mail, but the notice must have reached the relevant post office for delivery to the debtor before the credit provider can take action against him. The court in the Sebola matter did not follow the earlier decision of the Supreme Court of Appeal (SCA) in Rossouw and Another v FirstRand Bank Ltd 2010 (6) SA 639, in which the court held that where a notice is sent by registered post, dispatch on its own is sufficient to comply with s 129. However, in the same month the Sebola decision was handed down, the Western Cape High Court, in Nedbank Ltd v Binneman and Thirteen Similar Cases 2012 (5) SA 569, held that the Sebola judgment had not overruled the principles laid down in the Rossouw matter and that proof of delivery to the appropriate post office was sufficient, regardless of whether the notice was collected by the debtor. Despite this, in July the KwaZulu-Natal High Court in Durban, in ABSA Bank Ltd v Mkhize and Another and Two Similar Cases 2012 (5) SA 574, held that proof that a registered letter has reached the correct post office is insufficient to prove delivery if there is evidence that the consumer did not collect the notice. In such instances, the court held that the credit provider is required to take further steps and must prove that the notice in all likelihood came to the attention of the consumer. The court suggested that, for example, in addition to being sent by registered post, the s 129 notice should also be sent by ordinary post to the selected address and 'any other address which may appear to hold out a prospect of delivery to the consumer'. In the other example that was recently reported in De Rebus, conflicting decisions in respect of the Right of Appearance in Courts Act have raised questions such as: * Is an attorney who has been granted the right of appearance in terms of the Act entitled to appear only in the division of the High Court in which he was admitted or enrolled to practise as an attorney, or is he thereby also entitled to appear in other divisions in which he has not been admitted or enrolled? * What other functions may an attorney with a certificate of the right of appearance perform in divisions other than the one in which he was admitted or enrolled as an attorney in terms of the Attorneys Act 53 of 1979? As these examples illustrate, the result of such conflicting rulings is not a matter of insignificance - at stake in some instances is what is often a person's most precious asset, his home. Although the relevant bank in the Mkhize matter has been granted leave to appeal to the SCA on the basis of the conflicting decisions, in such instances surely the Justice Minister should act swiftly in invoking his powers in terms of s 23 of the of the Supreme Court Act 59 of 1959, which provides for him, after consultation with the South African Law Reform Commission, to refer conflicting civil judgments by different divisions of the High Court to the SCA to settle the conflict 'for the future guidance of all courts'? It seems that this is exactly the situation the legislature anticipated the provision to alleviate. Perhaps it is time for the Law Society of South Africa, on behalf of the public and the profession, to urge the Minister to act in terms of these powers to ensure legal certainty. It would not only be expedient to do so, but fairness and justice demand it. Kim Hawkey - Editor Would you like to write for De Rebus? De Rebus welcomes article contributions in all 11 official languages, especially from legal practitioners. Practitioners and others who wish to submit feature articles, practice notes, case notes, opinion pieces and letters can e-mail their contributions to derebus@derebus.org. za The decision on whether to publish a particular submission is that of the De Rebus Editorial Committee, whose decision is final. In general, contributions should be useful or of interest to practising attorneys and must be original and not published elsewhere. For more information, see the 'Guidelines for Articles in De Rebus' on our website (www.derebus.org.za). In addition, articles written by practising attorneys qualify for entry into our annual LexisNexis Prize for Legal Practitioners competition, while those written by candidate attorneys qualify for consideration for the Juta Law Prize for Candidate Attorneys. See www.derebus.org.za for more information. Upcoming deadlines for article submissions: 19 November 2012 and 22 January 2013.

LETTERS LETTERS Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously. Giving praise where due Often in life we do not express gratitude to people who have assisted us in achieving things that seemed unattainable. We often think that it is in their day's job, so they do not deserve to be acknowledged, even though at times people go the extra mile to carry us through the difficulties of life. In August 2012 I finalised a criminal case in the regional court in Pretoria. My client, the accused, was a 19-year-old boy charged with culpable homicide and reckless and negligent driving. The boy was the driver of a minibus that collided with another vehicle in August 2011, resulting in the death of the boy's aunt, who was a passenger in the minibus. The deceased was de facto the accused's mother. The accident also resulted in the driver of the other vehicle suffering permanent injuries to his lower limbs. The injured man also suffered financial loss due to the accident, as his vehicle and a motorbike, which he was carrying at the back of the vehicle at the time of the accident, were written off. After a lengthy case in which I filed representations pleading for a softhearted approach from the state, and after numerous without prejudice meetings between all the parties involved, this matter was finally disposed of through alternative dispute resolution. All this was possible due to the assistance, patience, persistence, compassion, empathy and meticulous effort of one of the members of the Pretoria Magistrate's Court prosecution team, senior public prosecutor Kas Sami-Kistnan. The new My LexisNexis interface: cleaner, faster with new thinking. It still offers the best content available for Legal, Government and Corporate users - but it's evolved. Book a test drive Kas, as she is popularly known at the Pretoria Magistrate's Court, was able to facilitate and preside over a number of lengthy, energy-sapping meetings between the parties, with the sole aim www.mylexisnexis.co.za of assisting the research@lexisnexis.co.za young boy in acknowl- 0860 765 432 edging his wrongdoing, accepting re- Information for competitive edge sponsibility for his actions, paying for his actions and eventually embarking on a process of rebuilding his life without his aunt, whom he will so dearly miss. Of course, all this would not have been possible without the cooperation of the accident victim and his insurers, which paid out claims arising from the accident and eventually accepted monetary compensation from the young boy's family. It was immediately clear at the first meeting that the intention of the parties, the accident victim included, was not to condemn the boy to prison. It became clear that other avenues had to be explored to ensure that the rehabilitative side of our justice system would take precedence over the punitive side. Due to the cooperation of the other driver and his insurers, the state was able to withdraw all charges against the young boy and give him another opportunity at life without the blemish of a prison sentence and/or criminal record. For the rest of his life the boy will pay the painful price of living with the knowledge that he was responsible for an accident that took the life of someone dear to him. However, he will forever be grateful that his matter was handled by people who were sympathetic to him; people who did not allow emotions to prevail over reason; people, including the accident victim, who TO THE EDITOR DE REBUS - NOVEMBER 2012 - 4 - PO Box 36626, Menlo Park 0102 Docex 82, Pretoria E-mail: derebus@derebus.org.za Fax (012) 362 0969 See the new changes and stay up-to-date with the latest interface developments. Try out the new My LexisNexis interface and sign-up for a free trial. Visit www.mylexisnexis.co.za for more information always had his best interests at heart. I want to express my sincerest gratitude and appreciation to everyone involved in resolving this matter. Tshepo Mothoa, attorney, Pretoria OL069/12 Letter of the month No work, no fee I write regarding the article 'Levelling the playing field', which appeared in 2012 (Sept) DR 21. The principle I would like to advance is that no lawyer should be entitled to payment for work not actually performed. I am against fees being charged for setting aside time when a matter is settled before the trial date. If the advocate or attorney has done any preparation work for that trial, then he must be paid for that work and not for work he has not done. Most advocates and attorneys are busy enough to have other work to do on a cancelled trial date. If they do other work on that date, then they are being paid twice for the same time. As an attorney in practice for more than 50 years, I will give a few examples to illustrate this principle. I briefed an advocate to conduct a trial. The matter was settled before the trial date. He returned his brief with no fee. I asked him why and he replied that he had plenty of work to do and welcomed having a free day to complete some of that work. I briefed another advocate for a trial that was settled before the trial date. He sent me a fee note for the date. I asked him to meet me and the same client on that cancelled trial date. He was unable to see us because he had arranged another consultation for that day. You can imag- OL069-12_my_lexisnexis_advert_4.indd 1 2012/09/14 9:51 AM

ine the client's reaction as he had already paid the advocate for that day. An attorney in the Eastern Cape briefed an advocate. On the same day the brief was delivered, it was withdrawn. The advocate had not looked at the contents of the brief. However, he charged a fee because 'the brief had crossed his desk'. A colleague in Pietermaritzburg briefed an advocate for a month-long trial. The matter was settled before the trial date. The advocate charged a hefty fee because he had set aside a whole month. The attorney reached an agreement with the advocate that he, the advocate, was to record all the fees for work he did during that month and if the total of such fees was less than his fee on brief the client would make up the difference. Guess what? The advocate's fees exceeded the fee on brief in the first half of that month. Unfortunately, fee charges that are not justified have become the custom to the detriment of our clients. However, I must say that if fees on brief for settled matters are allowed, then there is a difference between advocates and attorneys because an advocate is more likely to suffer 'damages' than an attorney. Oliver Hart, by e-mail Solution in s 65? I refer to Jacques Hattingh's letter 'Collecting attorney and client fees and expenses from debtors' in 2012 (Aug) DR 4 and want to tell Mr Hattingh that he is not alone in his disgust. My partner and I attend to s 65 matters in Randburg and Johannesburg courts weekly as locum for local attorneys and as correspondent for outside attorneys and I am faced with this very issue, where attorneys blatantly extort attorney and client fees from debtors. Fortunately, our courts do not hesitate to use their discretion in terms of s 65K(3) of the Magistrates' Courts Act 32 of 1944 and attorneys should note that their clients could be held liable by formal order for all the costs regarding the s 65 procedure if the court finds that they wilfully and blatantly attempted to recover attorney and client fees from debtors. Maybe Mr Hattingh should revert to this section too. It really is far more effective than running to the law society, which is so inundated with complaints that it never seems to make any headway. Adelé le Roux, attorney, Johannesburg The beleaguered Road Accident Fund I refer to my letter published in 2010 (Dec) DR 6 and comment that, two years down the line, the article 'Huge payout to former RAF boss' appeared in the Sunday Times on 16 September at 2. In this article it is reported that the former chief executive officer of the Road Accident Fund (RAF), Jacob Modise, was paid R 9,6 million over a period of nine months in 2011, during which he resigned from 'the cash-strapped agency'. During that period it is reported that he received a salary of R 3,5 million plus R 4,7 million as a performance bonus. In addition, it is reported in the same article that members of the board of the fund are paid a monthly retainer and are not remunerated for the number of meetings they attend. This is in spite of the fact that the beleaguered fund is 'R 46 billion in the red'. What is even more alarming and disconcerting is that it is reported that the fees of the ten members of the board increased by more than 100% from R 2 million last year to R 4,8 million this year and these increases were approved by the Minister of Transport. I can do no more than repeat what I wrote two years ago in De Rebus: 'While the organised profession has done much to persuade the authorities of the inadequacies of the "no fault" system, it is regrettable that it has not been successful in its attempt to persuade the powers that be that the parlous financial position of the RAF is not due to unscrupulous plaintiffs' attorneys, but is due to the incompetence, ineptitude, lack of discipline and control of the staff employed by the RAF and, for this, the man at the helm must take responsibility. I do not for one moment believe that Mr Modise is taking such responsibility and more so by accepting this bonus. I believe the time has arrived for the profession to express in the strongest possible terms its utter disgust at these developments and to reinforce the notion that we are a body of men and women who display the highest standards of ethics and who, in so doing, act with humility, honesty and integrity.' I call on the organised profession to demand the immediate resignation of all board members and the current CEO. I respectfully submit that the organised profession can no longer sit back and ignore the excuses submitted for the deficit, namely the huge amount of legal costs the beleaguered agency has to bear. If claims were administered competently and appropriately, the legal exposure would be drastically reduced. Leslie Kobrin, attorney, Johannesburg Harassment as a collection tool The claim of Krause Botha of VVM Inc (in response to the complaints in 2012 (Jan/ Feb) DR 4 and 2012 (Apr) DR 5) that VVM 'vigorously endorse[s] and strive[s] to maintain' regulations and rulings cannot be left unanswered. During 2005 I had a dispute with Vodacom, which I challenged to institute legal action but nothing happened until 2010 when I received a 'red' letter of demand from VVM DE REBUS - NOVEMBER 2012 - 5 - Inc (Ref 11255683 - Vodacom 10416250). I immediately responded by asking for a statement of account but my request was ignored and for a period of approximately one year I was harassed with sms messages, telephone calls from rude collection staff and about eight further letters of demand. My first letter was followed up with five more letters insisting on a statement of account and challenging VVM to proceed with legal action. VVM, however, ignored my letters and continued its harassing tactics. Apart from numerous telephone calls (often after business hours) I also received more than 30 sms messages. Some of these messages threatened legal action and others offered a 60% discount if I agreed to pay the account. VVM knew that this debt had prescribed and, while it is not illegal to collect a prescribed debt, it is illegal in terms of the National Credit Act 34 of 2005 to report such a debt to a credit bureau. However, this did not stop VVM from threatening me with an adverse report to a credit bureau. VVM must have realised that I was not going to give in to its intimidation because the harassment stopped in July 2011, which was just in time because at that stage I was preparing an application for an interdict. What is really shocking is the fact that over the last 12 months 321 complaints were registered against VVM Inc on the Hello Peter consumer website and most of the complaints are similar. Many of the complainants refer to VVM's conduct as 'harassment'. VVM reacts to all the complaints on the website but in many instances it requires complainants to furnish proof that they do not owe the amount claimed while the onus is on its client to prove its claim. It is not unreasonable to suspect that if such documentary proof is not furnished by the 'debtor' then further harassment will be the choice of action over legal action where it will have to prove its client's claim. Vodacom has now handed over this account to attorneys Munnik Basson Dagama Inc (MBD) and I have recently received another final demand from MBD for the same account. I have also requested a statement of account but I am not optimistic that I will get the statement because 709 similar complaints were registered on Hello Peter against this firm over the last 12 months. It should be kept in mind that people only complain on Hello Peter after all other attempts to solve the problem have failed. I suggest that the relevant law society should take note of the nature of the complaints on the Hello Peter website because this reflects on our profession and the ability of the law society to protect the public as well as the image of the profession. Henk Venter, attorney, Magaliesburg See also 2012 (March) DR 4 and 2012 (July) DR 4.

LETTERS Response - VVM Inc Thank you for providing us with the opportunity to reply to the letter from Mr Venter. This matter was recently brought to our attention on 25 September 2012. We have investigated this issue and confirm that this particular matter has now been referred to another firm of attorneys. We have sent the complaint to this firm. At the time of writing this response, VVM has initiated contact with the complainant's attorney and we are attempting to resolve this issue with him. Krause Botha, VVM Inc, Johannesburg Response - Munnik Basson Dagama Inc Thank you for allowing our offices the opportunity to respond to the letter from Mr Venter in which reference is made to Munnik Basson Dagama Inc. We do not intend to deal with the allegations made by Mr Venter but wish to deal merely with the factual issues at hand. We can confirm that our offices act for Vodacom in this matter in terms of a mandate received from our client on 30 March 2012. Our offices received a request for a statement in this matter from Mr Venter on 20 August 2012, which was forwarded together with a breakdown to Mr Venter's postal address on 27 August 2012. Further, our offices were contacted telephonically by Mr Venter on 28 August 2012, during which conversation a breakdown and statement were verbally requested. The breakdown and statement, which confirm the last payment having been made by Mr Venter on 16 March 2012, were e-mailed to Mr Venter on the same date once our offices had confirmed the e-mail address telephonically with Mr Venter. We cannot comment on any of the other allegations contained in this letter as they have no relevance and/or bearing on our offices and, in spite of Mr Venter's reservations, our offices have timeously provided him with all the documentation requested by him in this regard. Lastly, we would like to highlight the fact that Munnik Basson Dagama Inc is committed to serving its clients and customers professionally and within the letter and spirit of all laws and regulations governing its business. We are available, as always, to assist Mr Venter in resolving this matter. Christopher Harradine, Munnik Basson Dagama Inc, Johannesburg DE REBUS - NOVEMBER 2012 - 6 - Response - LSNP The issues raised by Mr Venter have previously been brought to the attention of the Law Society of the Northern Provinces (LSNP). If an attorney persists in referring numerous letters of demand (smses) to a debtor, knowing well that a legal dispute has been raised regarding the debt, such conduct by the attorney may well be harassment and thus be deemed to be unprofessional conduct on the part of the attorney. A complaint can be submitted to the law society for a disciplinary investigation should the attorney continue the offending conduct. It was recently resolved by the council of the law society that, as most of the issues raised relate to the manner in which debt collections are being dealt with by call centres operated by attorneys, and which were found to be unacceptable, the attorneys involved be requested to discuss the matter with the law society, as well as, in general, the conduct of attorneys who operate call centres. Thinus Grobler, director, Law Society of the Northern Provinces q

Independence of the legal profession, like the judiciary, is paramount - Public Protector While all role players in the justice system are required to have a level of independence, Public Protector Thuli Madonsela has highlighted that, for the judiciary and the legal profession, independence is 'paramount'. Ms Madonsela made the statement during a speech at the Gauteng Law Council's annual general meeting in Midrand on 6 October 2012, in which she also discussed the Marikana tragedy and her office's submissions on the Legal Practice Bill (B20 of 2012) (the Bill), among others. Marikana Ms Madonsela praised the legal profession for its response to the Marikana tragedy, which left over 40 people dead, and in particular noted that many lawyers were worried about the Marikana people. 'It was quite amazing to see how lawyers have reacted ... . It reminds us of the past of the legal profession in this country,' she said. Ms Madonsela added that she had been particularly encouraged by the fact that when it became clear that the families of some of the deceased were not going to be represented at the commission of inquiry into the incident, lawyers had argued that the state must provide resources to ensure that the families have the opportunity to engage in the accountability process. 'That for me was the kind of ethical lawyering that we were used to seeing during apartheid, during the Truth and Reconciliation Commission and now in Marikana,' she said. Independence in the judicial system Ms Madonsela noted that concerns had been raised about judicial independence and emphasised that this should be examined as part of a broader issue of independence: 'The real independence that is entrenched in the Constitution is independence in the judiciary system as a whole,' Ms Madonsela said, adding that 'it is not enough' to have independent and impartial judges if other role players, such as registrars, prosecutors, police, lawyers and the legal profession, were not independent. 'The independence of all these other actors is as important as the independ- ence of the judiciary. Obviously the levels of independence differ. The independence of the judiciary is paramount. The rest of the system must be independent, but there are degrees. ... The independence of the clerk of court is not going to be underpinned by the same guarantees as the independence of the judicial officers. The issue of the independence of the legal profession is paramount too because [it] is an important feeder of the judicial system,' she said. Ms Madonsela said that the profession also serves 'a particular purpose' in respect of access to justice: 'The legal profession becomes the voice of the voiceless in many instances and, of course, it lends its voice to powerful people as well, but particularly to the voiceless, and it becomes important that the impartiality is not just there, but that it is also perceived by those who engage with the system.' In respect of criticism against the judiciary and the legal profession, she noted that some criticism had been perceived as interference; however, she said it was important not to confuse fair criticism and accountability with interference: 'Fair criticism cannot interfere with independence of both the judiciary and the legal profession and accountability is also not inconsistent with independence,' she said. Perceptions of the profession Ms Madonsela said that the conduct of some members of the legal profession allowed the perception of lawyers as 'sharks' to prosper, despite this not applying to the average lawyer. The Public Protector emphasised that it was up to the profession to ensure that lawyers are not judged by their 'weakest link', namely those who give the 'noble profession' a bad name. The Legal Practice Bill Ms Madonsela informed those present that her office had made submissions on the Bill, which it did not support in its entirety. In particular, she said there were 'certain gaps' relating to accountability of lawyers that needed to be resolved. She said that this was based on her office's experience in dealing with cases involving legal practitioners, some of which related to Road Accident Fund claims and the administration of estates. DE REBUS - NOVEMBER 2012 - 7 - NEWS However, her office supported the Bill's establishment of an independent ombud for the legal profession. The goal of the office will be to protect and promote the public interest, ensure the proper investigation of complaints, promote high standards of integrity in, and the independence of, the legal profession (see s 47 of the Bill). Ms Madosela said it was essential that the ombud was an independent institution, but how this should be done, the Public Protector had 'left for other parties to look at'. Working with lawyers On the role of lawyers in respect of her office, Ms Madonsela said she had benefited from working with lawyers, who had proven to be 'very helpful' to the Public Protector's work. She described insights from lawyers as 'invaluable' to her office and highlighted some of the opportunities for her office and the profession to work together, including: * Strengthening state contracts to ensure accountability for wrongdoing. 'Let us create contracts that foster accountability by those who contract with the state,' she said. * Providing pro bono assistance to complainants. * Providing expert opinions. * Advising the state 'with the vision in mind of making sure that the state creates a society that we want to become'. In closing, Ms Madonsela elaborated on this last item: 'Each nation gets the country it deserves. Whatever country we become will be the country we decide to make it. During the struggle we fought for what we have now and the Constitution that is respected by the entire world. We have the power now and the opportunity to influence the behaviours of the state and the other fellow human beings that we advise on a day-to-day basis to play their part in creating that society that we chose to become. If we do so [and] if we work together, we can make sure that our state is accountable; that public accountability is not an option, but a must; that our state operates with integrity at all times and ultimately is responsive to all our people.' Kathleen Kriel, Kathleen@derebus.org.za and Kim Hawkey, kim.hawkey@derebus.org.za

Suicide notes as wills on FISA agenda The Fiduciary Institute of South Africa (FISA) held its second annual conference in Cape Town in early September. Topics covered included offshore estate planning, s 2(3) of the Wills Act 7 of 1953 and maintenance claims by grandchildren. Speakers at the conference included Tienie Cronje from the Office of the Chief Master, Professor Francois du Toit from the University of the Western Cape, James Faber from the University of the Free State and Professor Mohamed Paleker from the University of Cape Town. Suicide notes as wills Professor du Toit and Mr Faber discussed case studies relating to s 2(3) of the Wills Act. These included instances in which suicide notes had been accepted as valid wills. Mr Faber said that in Smith v Parsons NO and Others 2010 (4) SA 378 (SCA) the deceased had written a suicide note containing testamentary provisions, which he signed with his first name. He left the note under a crucifix in the kitchen before committing suicide. The only question before the Supreme Court of Appeal was whether the deceased had intended the handwritten suicide note to be an amendment of his will as contemplated by s 2(3). Mr Faber said that the suicide note gave clear instructions on what should happen to his estate, as evidenced by words such as 'you can have this house'; 'I authorise ... to give you ...'; 'I leave everything else to...'. Mr Faber said that, after taking into account the specific facts of the matter, the Master of the High Court was directed to accept the suicide note as an amendment to the deceased's will. In Abrahams v Francis NO and Others (WCC) (unreported case no 5890/2009, 10- 11-2010) (Bozalek J) the deceased died of natural causes, but prior to his death he was unstable and suffered from depression and abused alcohol, which rendered his on-off relationship abusive. The unstable relationship contributed to anxiety and mental instability, which led to the deceased contemplating suicide. He wrote a letter (handwritten, unsigned and undated) to his family and friends about the contemplated suicide. The letter also contained testamentary provisions. In addition, the deceased made a number of statements that involved promises relating to the dissolution of his estate prior to death. Mr Faber said that the question to be considered was whether the deceased intended the document to be his will. The court relied on Van Wetten and Another v Bosch and Others 2003 (4) All SA 442 (SCA) to determine this, adding that it was not disputed that the document was drafted by the deceased. The respondents contended that, because of the various statements made by the deceased in the period before his death, he did not intend the document to be his will. In coming to its decision, the court examined the - * wording of s 2(3); * the requirements for the application of s 2(3); * the purpose of s 2(3); and * similar cases. Mr Faber said that the court found there were 'very clear indications that the deceased intended [the document] to be his will', including that he had listed his main assets, nominated a beneficiary, appointed an executor and stated: 'I herewith declare that this writing replaces all previous in respect of my estate devide (sic) or last wishes expressed.' Mr Faber said that the court, after considering the facts of the matter, held that the terms of the contested will that 'unequivocally point towards the deceased's intention that it would constitute his will' carried weight. Further, the court found that the fact the deceased was contemplating suicide did not render the suicide letter 'something less than his will, if that is indeed what it is'. The court also found that the deceased changing his mind about committing suicide did not exclude the document from being declared his will. Maintenance and grandparents' deceased estates Professor Paleker and one of his postgraduate students, Daniel Mackintosh, pointed out a discrepancy in South African case law with regard to maintenance claims. The pair said that, on the one hand, while parents and grandparents have a duty to maintain their children and grandchildren, and children also have a claim for maintenance against their deceased parents' estates; no claim by a grandchild against a deceased grandparent's estate had been recognised by the courts. They argued that there is no basis DE REBUS - NOVEMBER 2012 - 8 - for this distinction, which 'flies in the face of s 28 of the Constitution', which relates to children's rights. Developments at the Master's Office Mr Cronje spoke about developments at the Master's Office with regard to legislative development and information technology, which he said would soon make it possible to follow the administration process of deceased estates and trusts online. In his presentation, Mr Cronje touched on the Master of the High Court's integrated case management system (ICMS) web portal, which connects close to 400 magistrates' offices (deceased estate service points) and all of the Masters' Offices. The ICMS web portal makes information available that has been collected by the Masters' Offices since the year 2000 and information captured at service points and Masters' Offices is updated on a daily basis on the portal. Mr Cronje said that the Office of the Chief Master would pilot a system of paperless administration of estates at a new Nelspruit office, which would have service points at the Nelspruit and Barberton magistrates' courts. He said that this system would involve better use of technology by enabling - * uniform procedures in all offices; * less dependence on paper documents; * process management; and * instant reports on turnaround times and problem areas. Mr Cronje also referred to a Chief Master's Directive that payment by estate representatives in a form other than cheques is acceptable, and mentioned electronic fund transfers in particular. Nomfundo Manyathi, nomfundo@derebus.org.za Section 197 of the LRA scrutinised London solicitor and DLA Piper Group partner Adam Hartley speaking at a Cliffe Dekker Hofmeyr employment seminar that was recently held at its Sandton offices. The seminar focused on transfers of businesses in terms of s 197 of the Labour Relations Act 66 of 1995 and how such transfers affect collective agreements. Other speakers at the seminar included the firm's national head of employment practice, Aadil Patel, and two of its consultants, Faan Coetzee and Retha Beerman.