New CLS director The Cape Law Society (CLS) has appointed Rampela William Mokoena (51) as the society's director from October. He takes over from Nalini Gangen, who left the law society in April 2012. Mr Mokoena was previously an investigator at the Attorneys Fidelity Fund (AFF) in the forensics department. Before joining the AFF, Mr Mokoena held the position of business development official at the Law Society of the Northern Provinces (LSNP) from 2003 to 2011. Mr Mokoena, once a sole practitioner, was also a partner at Ndaba, Mokoena & Partners Attorneys from 1993 to 2001. He was admitted as an attorney in 1992 and holds a BProc from the University of Zululand. In addition, Mr Mokoena previously participated in the board and the Legal Chamber of the Safety and Security Sector Education and Role of competition law in a democracy The Competition Law Committee of the Law Society of the Northern Provinces held its annual breakfast in Rosebank, Johannesburg on 11 October. The guest speaker was Constitutional Court Justice Chris Jafta, who spoke on the importance of competition law in a constitutional democracy. Justice Jafta spoke about the Competition Act 89 of 1998 (the Act), focusing on its objectives, the means it employs to achieve those objectives and the structures established to administer and enforce the Act, which he said was the primary source of competition law. Justice Jafta said that, in passing the Act, government sought to, among others - * address the inequalities and imbalances of society created by apartheid; * promote and maintain competition in the economy in order to promote efficiency, adaptability and the development of the economy; * afford consumers access to quality goods and services at competitive prices; and * ensure that small and medium-sized enterprises have a fair opportunity to participate in the economy. He said it was clear that the Act was passed to promote the values on which the Constitution is founded, particularly the values of equality, freedom and the advancement of human rights. New Cape Law Society director Rampela William Mokoena. Training Authority (SASSETA) for two years. Mr Mokoena said that one of his aims as director was 'to maintain but, more importantly, enhance the good relationships the law society has already established with its broader stakeholder He added that the Act applied to all economic activity in the country except collective bargaining and collective agreements in terms of the Labour Relations Act 66 of 1995. Justice Jafta said it was unfortunate that 'economic activity' was not defined in the Act, adding that he was not aware of any court decision that defined the term but knew that some courts had commented on the breadth of these words. Justice Jafta said that the Act was not only specific to activities within South Africa's boundaries, as it also applied to activities that have an effect in South Africa. However, he said, the word 'effect' was wide and was not defined in the Act. By way of example, he said that if members of a cartel colluded outside the country, the purpose of which would reduce or eliminate competition between them in their operations in South Africa, the Act would apply. Justice Jafta said that a producer of goods could not fix the price at which the goods must be sold to the public. 'He can recommend a price and the produce must have the words "recommended selling price" next to the price,' he said. Justice Jafta said that the Competition Commission was tasked with evaluating complaints relating to price-fixing and collusion, approving applications for mergers and referring complaints to the Competition Tribunal, adding that an investigation DE REBUS - NOVEMBER 2012 - 9 - NEWS base'. He added: 'The office should strive to re-engage the broader membership community with their law society.' Mr Mokoena said that what appealed to him about the position were the challenges and responsibilities it would present. 'It gives me an opportunity to, in one sense, apply and, in another, to test, my perceptions and theories about leadership and management in general. Recognising the bigger picture (the importance and potential impact of the impending Legal Practice Bill in transforming the profession), the position affords one the opportunity to participate early on in the endeavours leading thereto,' said Mr Mokoena. Having worked at both the AFF and the LSNP, Mr Mokoena said that he had attained a 'broader and closer understanding of the day-to-day issues pertaining to the profession and how to deal with them'. 'These skills will certainly help in the position,' he added. Kevin O'Reilly, kevin@derebus.org.za of a complaint may be triggered in two ways: By the commission itself or by complaint from the public. Justice Jafta said that if the commission was not satisfied that there had been a violation, it may decline to refer the matter to the tribunal. He added that if the investigation was prompted by a complaint from the public, the commission must issue a notice of non-referral, in which case the complainant may submit the same complaint to the tribunal. 'But if the commission is convinced that the Act was breached, it may itself refer the matter to the tribunal for adjudication,' he said. Justice Jafta said that the tribunal is empowered to adjudicate matters, conduct investigations and impose punishment in terms of the Act. He said that the tribunal may also decide reviews and appeals against decisions of the commission. He added that the tribunal is afforded latitude to adopt any procedure for its hearings. Unlike a court of law, he said it was not obliged to adhere to an adversarial process; it may go the inquisitorial route and may decide to have an informal hearing. However, the public must have access to its hearings, which must be held expeditiously and in accordance with the principles of natural justice. 'Decisions and orders of the tribunal may be challenged on appeal to the Competition Appeal Court (CAC). Those who

are aggrieved by the decisions of this court in other matters may challenge them in the Supreme Court of Appeal (SCA) or the Constitutional Court,' he said. Justice Jafta elaborated on the recent debate as to whether all three levels of appeal were necessary. 'One school of thought, supported by Judge President of the Competition Appeal Court Judge Dennis Davis, favours only one level of appeal beyond the CAC,' he said. Those who support this view prefer appeals of the CAC to go directly to the Constitutional Court and those who oppose this view argue that the CAC is, in reality, the first court to hear competition law matters as the tribunal is not a court of law, he said. Justice Jafta said the right to appeal against judgments of the CAC is subject to the provisions of s 63 of the Act and the rules of the court in which the appeal is lodged. Section 63 obliges an appellant to first apply to the CAC for leave to appeal and if that court refuses leave, the request New law journal group of law students who saw a A gap in the market have taken the initiative to start a new law journal. As a result, the Wits Student Law Journal for Southern Africa (WSLJ) was launched by the University of the Witwatersrand's School of Law in September. The journal seeks to be a central platform for legal discourse in the Southern African Development Community (SADC) region and embraces the legal systems, policies and ideas unique to SADC member states. Although run by students, the journal hopes to attract content from students, academics and legal practitioners from across the SADC region. The journal was founded by finalyear LLB students Tariro Muzenda and Nyasha Gonzo. When asked what inspired the pair to establish the journal, Ms Muzenda told De Rebus: 'We participated in the Law Students Council elections when we were in first year and at the time there were a lot of ideas flying around. Someone mentioned that there was not a law journal at Wits and I thought that this was strange. ... So Nyasha and I started researching ... and it took off from there.' The journal is run by nine students, including the two founders, and it will be published bi-annually in February/ March and September each year. Those interested in the journal will be able to purchase copies from the journal's office at the university. There will also be a subscription option for the print and electronic versions of the publication in future. The journal also has a webpage on which it posts - * articles that are not published in the journal; * webcasts; and * interactive discussion forums. may be made to the SCA or the Constitutional Court. 'Insofar as the SCA is concerned, the need to apply first to the CAC is understandable; this is because once the CAC refuses leave, an appellant proceeds to the SCA. A similar process is followed with judgments of the High Court. But, when it comes to the Constitutional Court, a different process is followed, an appellant who has been granted leave by the CAC is still obliged to apply again to the Constitutional Court because only the Constitutional Court can grant leave,' he said. He queried why an appellant should apply twice for such leave. 'It falls on the commission and the tribunal to interpret and apply the Act without any guidance from the courts because, in the scheme of the Act, guidance only becomes available after their decisions have been challenged in court and this guidance comes in a trickle because every case is decided narrowly on the facts and the issues raised. There can be little doubt that both Ms Muzenda told De Rebus that establishing the publication had been an 'exciting and interesting journey'. 'It has all just come together and we work very well together. That has helped us because it is a stressful project and it will probably get more stressful now because it will get bigger. We all chipped in and made the journal what it is today,' she said. In a speech at the launch, head of the university's School of Law, Professor Jonathan Klaaren, congratulated the editorial team. He said that the journal was innovative as a student-led initiative and DE REBUS - NOVEMBER 2012 - 10 - the tribunal and the Act are not a model of clarity and ... these bodies have no precedent to consult in order to determine what is required from them; hence at times they look at other jurisdictions such as Europe and the United States,' he said. Justice Jafta warned that caution must be exercised in seeking guidance from foreign law as one must first consider whether the legal framework of that jurisdiction bears similarities to the South African Act. He said that if it did not, then it may be inappropriate to import it into South African law. He concluded by saying that it was the responsibility of practitioners to lobby the relevant authorities to address these challenges, adding that some practitioners demanded that these be addressed by amending the Act. Nomfundo Manyathi, nomfundo@derebus.org.za that it was a 'great achievement', adding that students were their 'own best teachers'. Professor Klaaren said that when students educate themselves, there is longer lasting learning. The editorial team can be reached by e-mail at StudentJournal.Law@wits.ac.za or tel: (011) 717 8575 or fax: 086 756 3656. The WSLJ website address is www. wslawjournal.org Nomfundo Manyathi, nomfundo@derebus.org.za Nadel workshop to empower women In support of its Gender Committee, the Johannesburg branch of the National Association of Democratic Lawyers' (Nadel), in conjunction with non-governmental organisations Lifeline and NISAA Institute for Women's Development, held a workshop aimed at empowering women and other gender-related vulnerable groups by providing free legal education. The workshop was held at Lifeline's offices in Braamfontein, where a team from NISAA conducted presentations on domestic violence. Former state prosecutor Cornel Pretorius also addressed Lifeline counsellors on the legal aspects of obtaining and enforcing protection orders. Vice-chairperson of Nadel Johannesburg, Zenobia Wadee, told De Rebus that Ms Pretorius provided practical tips to assist victims of domestic violence when applying for protection orders. Nomfundo Manyathi, nomfundo@derebus.org.za

Confidence in LLB drops further A survey conducted by financial services provider PPS has shown that attorneys' confidence in the quality of the LLB degree has further declined. The survey is conducted on a quarterly basis and PPS recently revealed the results of its second quarter analysis, which was compiled at the end of July 2012. When asked whether they believed the current LLB degree sufficiently prepares prospective practitioners to enter and succeed in the attorneys' profession, the survey of almost 500 attorneys revealed a 10% decline to 21% from 31% compared to the first quarter results. When asked how confident they were about the future of the attorneys' profession over the next five years, 72% showed confidence in it, while 40% said that they would encourage their children to enter the profession. This signifies a 5% and 4% drop respectively. In a press release, head of group marketing and stakeholder relations at PPS, Gerhard Joubert, said: 'This is very worrying. Public Protector Thuli Madonsela released the findings of four recent investigations at a media briefing in Pretoria on 28 September. One of her reports, titled 'Costly letters', involved an investigation of the alleged improper involvement of Deputy President Kgalema Motlanthe and his partner, Gugu Mtshali, in a business transaction with Iran. A newspaper report published in March 2012 alleged that Ms Mtshali was implicated in soliciting a R 104 million bribe to obtain a deal with Iran at a time when the United Nations had imposed sanctions against it. Deputy President Motlanthe asked the Public Protector to investigate the matter. Ms Madonsela found that Ms Mtshali was present at a meeting in 17 February 2011 where government support for a business transaction involving aviation company 360 Aviation and Iran was discussed. However, the Public Protector said that when Ms Mtshali was invited to attend the meeting she had not been informed that government support would be discussed. Ms Madonsela found that Ms Mtshali was not invited to participate in the discussions relating to government support for the business transaction, nor did she participate in same. Further, she had neither solicited nor accepted a bribe to help 360 Aviation and Iran in their business venture. As such, she did not violate the Prevention and Combating of Not only is there a shortage of key skills in South Africa but children often take a lead from their parents' perspectives and if they see the legal profession as a difficult or unrewarding vocation, this does not bode well for attracting new entrants.' Mr Joubert said that PPS had focused on graduate professionals for the survey, adding that discussions were taking place between several universities and the relevant legal professional associations to ensure the ongoing relevance of the LLB degree. There was a 1% increase to 45% in the attorneys' perception that high ethical standards are maintained and that the attorneys' profession is regarded as an ethical, professional and noble one. Mr Joubert said that while this result had increased marginally, it was still concerning that the confidence level was so low. 'It is imperative that measures are taken to ensure the reputation of the attorneys' profession is perceived as fair and unbiased, as this is the crux of an effective legal system,' he said. DE REBUS - NOVEMBER 2012 - 11 - NEWS Mr Joubert concluded: 'The second quarter survey of local attorneys has revealed a very worrying decline in confidence levels across very important issues for the profession, most notably the quality of the current LLB degree. It is vital that these concerns are addressed to ensure the future of this vital profession in the country.' Other results from the survey include: * A 5% decrease to 45% in confidence about the standard of education in South Africa over the next five years. * Concern about the lack of mathematics and science graduates increased by 1% to 93%. * Concern about the rising cost of tertiary education decreased by 2% to 88%. * Confidence in the rate of unemployment improving in South Africa decreased by 3% to 40%. * See 2012 (Aug) DR 8. Nomfundo Manyathi, nomfundo@derebus.org.za Public Protector reports back Public Protector Thuli Madonsela and the chief executive officer of the Office of the Public Protector, Themba Mthethwa, at a recent media briefing in Pretoria. Corrupt Activities Act 12 of 2004 (the Act) or any other law. The Public Protector said that during the meeting Ms Mtshali had uttered a few words and these did not justify a finding that she had participated in the meeting or the Iranian deal or that she had solicited a bribe in exchange for influencing government support for the business venture. The Public Protector further found that an agreement was reached between 360 Aviation's chief executive officer and Ms Mtshali's business associate Joe Mboweni; former De Beers executive Raisaka Masebelanga; and former Land Bank executive, Herman Moeketsi, regarding the procurement by Mr Masebelanga of government support for 360 Aviation's Iranian aircraft trading venture. However, she added, not enough evidence could be found to justify a finding that the agreement constituted the solicitation or acceptance or intention to offer a bribe or gratification in violation of s 3 of the Act. The remedial action taken by the Public Protector requires the director-

general of the Department of Trade and Industry (DTI) to ensure that the recommendations of a forensic report on the investigation of a letter of support commissioned by the DTI are implemented expeditiously in developing a policy framework regulating the issuing of letters of support for companies wishing to do business abroad. Further, he is required to submit a report to the Public Protector on the implementation of this remedial action within 90 days of the date of the issuing of the report. The other reports released by the Public Protector were: 'State power - political games' This investigation involved a complaint by Limpopo deputy secretary and member of the provincial legislature, Thandi Moraka, after she was arrested and detained in April 2010 by an off-duty traffic officer on her way home from an African National Congress Youth League conference. Ms Moraka alleged that the arrest had been ordered by then Member of the Executive Council (MEC) for Roads and Transport in Limpopo, Pinky Kekana, and the Premier of Limpopo, Cassel Mathale, to settle a political score. The Public Protector found that Ms Kekana had acted improperly and abused her position as MEC in ordering the arrest. She further found that her action amounted to maladministration as she had made use of state resources to settle a political score while she was attending a private party-political event. The remedial action ordered by the Public Protector is that the Premier and provincial legislature must, within 30 days from the date of the report, take disciplinary action against Ms Kekana. Further, the head of department must issue a written apology to Ms Moraka and the report must be tabled in the Limpopo provincial legislature. Ms Kekana must also submit a written apology to Ms Moraka (at the sitting) for the prejudicial treatment she suffered. 'Two wrongs, no rights' This report dealt with a complaint about the Khara Hais Municipality in Upington in the Northern Cape. The complainant alleged that the municipality wrongfully reallocated his stand to someone else, who later built a house on it. The Public Protector found that the municipality failed to comply with the municipal policies and council resolutions by reallocating the stand. This constituted improper conduct and maladministration. The remedial action taken by the Public Protector is that, as compensation DE REBUS - NOVEMBER 2012 - 12 - may not be possible in the circumstances, the municipality must, in consultation with the complainant, identify an alternative stand for him. 'A costly promise' This report involved a military veteran losing his home allegedly due to excessive delay by the then Department of Defence in the implementation of a revised non-statutory forces pension. The department allegedly made a number of promises that were not met regarding payment dates, which the complainant conveyed to a bank that wanted to repossess his home. The bank eventually sold the house on auction. The Public Protector found that, by not honouring its commitments, the department did not discharge its obligations and duties towards the complainant with due diligence and in good faith. The remedial action taken by the Public Protector is that the department must take urgent steps to attend to any outstanding issues relating to the complainant's pension and must further take immediate action to arrange alternative accommodation for him. Nomfundo Manyathi, nomfundo@derebus.org.za University of Pretoria wins human rights prize The University of Pretoria's Centre for Human Rights has been awarded the Non-governmental Organisation Prize for the Promotion and Protection of Human Rights by the African Union. The award is based on the influence of the centre's master's programme, the LLM in Human Rights and Democratisation in Africa. The programme is a joint initiative with 12 other law faculties, to which 30 people from African countries are admitted annually. The African Commission on Human and Peoples' Rights awarded the prize to the centre on 9 October 2012 during the commission's 25th birthday celebration and the opening of its 52nd ordinary session in Côte d'Ivoire. Former director of the centre, Professor Christof Heyns, who is currently the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, received the award from Côte d'Ivoire President Alasanne Ouattar, on behalf of the centre. In a press release, director of the centre, Professor Frans Viljoen said: 'This prize recognises the centre's distinctive blend of research, teaching and activism and the impact of its alumni and partners working across the continent for the promotion and protection of human rights.' Nomfundo Manyathi, nomfundo@derebus.org.za

Calls for scrapping of Traditional Courts Bill continue During public hearings on the Traditional Courts Bill (B1 of 2012) (the Bill) in September, legal bodies, non-governmentalorganisations, gender groups and unions voiced their opinions on the Bill before the Justice Department's Select Committee on Security and Constitutional Development. Almost all those who appeared before the committee were of the view that the Bill should be withdrawn or rejected in its entirety. The Bill was first tabled in the National Assembly in 2008 but was withdrawn on grounds that proper consultation was necessary and because various concerns were raised about its provisions. It was reintroduced in the National Council of Provinces (NCOP) in December 2011. Details of the hearings are reflected in transcripts published by the Parliamentary Monitoring Group. According to these, the chief director of policy at the Justice Department, Jacob Skosana, gave a presentation on the Bill. Mr Skosana noted that one 'consistent criticism' relating to the Bill was that there had been a lack of adequate consultation. While he agreed that 'perhaps rural women had not been adequately consulted', he did not believe this was sufficient reason to draft the Bill afresh as he believed the existing problems could be addressed. Mr Skosana said the department had isolated specific areas of the Bill that may need to be strengthened or re-formulated. He noted that the Bill had been criticised for - * failing to adequately protect and promote the rights of women and children; * exclusion of legal representation; * over-concentration of powers in respect of traditional leaders; * no right to opt out, which was seen as conflicting with the right of access to courts in the Bill of Rights; and * its current formulation of traditional courts being based on the boundaries of the old tribal authorities under the apartheid structures. A further problem was that the traditional justice system was seen as perpetuating harmful customs and practices that offended against the Bill of Rights and some sanctions were seen as constitutionally objectionable. Mr Skosana said that the Justice Department had suggested that traditional courts be integrated into the traditional councils for purposes of dispute resolu- tion, adding that measures could be taken to determine the quota of women who must participate in the traditional councils and their role during sittings. He explained that the inclusion of the courts under traditional councils would result in better gender representivity since traditional councils comprised one-third women. Mr Skosana said that the Justice Department had recommended renaming the Bill the 'Resolution of Certain Disputes by Traditional Councils Bill'. Submissions on the Bill The transcripts also reflect oral submissions on the Bill by various individuals and bodies. Some of these are elaborated on below. Minister of Women, Children and People with Disabilities The Minister of Women, Children and People with Disabilities, Lulu Xingwana, said that the constitutionality of the Bill must be measured against the equality clause, adding that the Bill did not promote substantive equality as enshrined in the Constitution. Minister Xingwana recommended that the Bill be completely overhauled and rewritten, in consultation with rural women and other marginalised groups, and that sufficient time be afforded for consultation. Minister Xingwana highlighted the designation of the presiding officer as problematic, adding that her department recommended that the presiding officer should not necessarily be a senior traditional leader, but could also be any woman or man of standing in the community who is appointed in full consultation with the community. This would ensure gender equality and meaningful representation, she said. The Minister noted that the Bill recognised disputes arising out of customary law, but said that it should provide for an opt-out option and afford people the right to choose the system they wished to apply. Minister Xingwana said that the concerns that had led to the Bill being withdrawn previously had still not been addressed, resulting in the same Bill, with the same flaws, being presented. In summarising the department's views and recommendations relating to the Bill, Minister Xingwana said - DE REBUS - NOVEMBER 2012 - 13 - NEWS * it was unconstitutional to have predominately male-dominated courts; * legal representation must be allowed, as must the right to appeal; * people should have the choice whether or not to be bound; * chiefs should not be involved in political parties if they are presiding officers; * a code of conduct similar to that guiding judges must be drawn up for presiding officers; * traditional councils and traditional courts must comprise 50% women; * all cases affecting children, guardianship, custody and maintenance should not fall under traditional courts but must be decided in line with legislation that governs children and maintenance matters. Marriage and divorce must be dealt with in the civil courts in line with marriage laws. Minister Xingwana pleaded with the NCOP not to pass the Bill in its current form as the effect would be to replace the apartheid Black Administration Act 38 of 1927 with another piece of legislation that was 'oppressive and discriminatory to the women of South Africa'. LSSA The delegation from the Law Society of South Africa (LSSA) consisted of chairperson of its Gender Committee, Martha Mbhele; member of its Family Law Committee, Zenobia Wadee; and chairperson of the Constitutional Affairs and Human Rights Committee and Black Lawyers Association President, Busani Mabunda. Ms Mbhele said that the LSSA appreciated the efforts made to repeal the remaining sections of the Black Administration Act but felt that the Bill was not the right way to do so. This was because the Bill would confer too much power on traditional leaders and make it difficult to regulate their activities. Ms Mbhele questioned what level of training would be necessary to render traditional leaders experts in customary law and enable them to understand the rules of natural justice. She noted that the Bill conferred 'enormous power' on traditional leaders. Ms Wadee said that the Bill fostered power without accountability and blurred the separation of powers, since unilateral powers were given to chiefs, who would act as administrators, legislators and judicial officers, adding that this made it possible for 'rural dictators to reign supreme'.

Ms Wadee added that the Bill provided for the transfer of cases to small claims courts or magistrates' courts but this was only at the discretion of the presiding officer. It would be unjust if people were compelled to adhere to a traditional system they regarded as illegitimate, she said. Mr Mabunda recommended that the Bill be amended and aligned with the Constitution rather than discarded, adding that the LSSA was of the view that South Africa had to take positive steps to 'repeal the vestiges of the Black Administration Act'. However, he agreed that there were numerous problems with the Bill and that mechanisms must be found to ensure that it aligned with the Constitution and the Bill's stated objectives. Mr Mabunda suggested that judicial powers be conferred on traditional councils, which would address concerns about representivity. He spoke about the need to have jurisprudence on customary law and mentioned that customary law is recognised by the Constitution and has the same status as Roman-Dutch law and common law. He argued that the withdrawal of the Bill would create a vacuum leading to the continuation of the Black Administration Act. SAHRC Senior researcher at the South African Human Rights Commission (SAHRC), Anthea van der Berg, said that customary law was an integral part of South African law but it was required to survive the test of constitutionality and must uphold values of equality, non-racism and non-sexism. Ms van der Berg said that the Bill lacked clarity on jurisdiction and sanctions, which were directly linked to the power of the institution of traditional leaders. She added that the Bill's jurisdiction was reliant on geographic boundaries rather than membership of a customary group and there was concern that people would be subject to a court system they may not recognise and without having an optout option. CASAC The Council for the Advancement of the South African Constitution (CASAC) rejected the Bill in its entirety. Its rep- President Jacob Zuma was one of the guest speakers at the JAA's 2012 AGM. DE REBUS - NOVEMBER 2012 - 14 - resentative, Nomboniso Gasa, said that although the Bill was presented as an attempt to promote, affirm and recognise customary law within constitutional parameters, it was not about customary law, but was about recognition of traditional leadership and its role in a democracy. Ms Gasa stressed that CASAC was not rejecting the systems of traditional leadership and customary law, adding that traditional leaders had a role to play in customary law, traditional justice and African culture broadly, but they were not the custodians of African customary law. She urged the Justice Department to 'go back to the drawing board'. Ms Gasa further stressed that the notion of segregating communities in terms of ethnic and tribal identities made a mockery of the founding principles of the Constitution, especially if people had no choice. * See p 20. Nomfundo Manyathi, nomfundo@derebus.org.za President Zuma addresses Johannesburg Attorneys Association at its 70th AGM President Jacob Zuma was one of the guest speakers at the 70th annual general meeting of the Johannesburg Attorneys Association (JAA), which took place in Johannesburg in September. President Zuma took the opportunity to speak to practitioners about the Legal Practice Bill (B20 of 2012) (LPB), among other topics. In addition to the President, the other guest speakers were former Constitutional Court Justice Johann Kriegler and Law Society of South Africa (LSSA) chief executive officer, Nic Swart. LSSA councillor and Past President of the Commonwealth Lawyers Association Mohamed Hussain also addressed delegates on the Commonwealth Law Conference, which South Africa will be hosting for the first time in 2013. Legal Practice Bill update from the LSSA Mr Swart provided an update on the latest developments in respect of the LPB, which he said the LSSA had welcomed. 'The Legal Practice Bill is a reality. Unfortunately there are still people who see this as a threat against the independence of the profession. The LSSA and its constituents have taken a different view. It is about finding a balance between the Photo by Mike Tarica interests of the public and the interests of the profession. It is aimed at greater access to justice for society and as a tool for unification in the profession. It is also a new tool for the regulation of the profession,' he said. Mr Swart added that the Bill would open the door for greater uniformity between the two branches of the profession. He reported that the Justice Portfolio Committee had not provided a new deadline for submissions on the Bill after extending the original deadline in July; Former Constitutional Court Justice Johann Kriegler spoke about the legal profession and the rule of law at the JAA AGM in September. Photo by Mike Tarica however the two branches of the profession were 'reaching greater consensus' in respect of their positions on the Bill and further discussions were planned. In respect of voluntary professional associations, Mr Swart noted that the Bill does not provide for statutory recognition of these, but it was assumed that they would continue to play an important role. He said that one of the debates currently taking place was whether there should be a legal practice society in the form of a

voluntary association to which members could belong, which would promote and protect the interests of the profession. Mr Swart concluded by discussing the transitional period provided for in the LPB. He said that while the Bill currently provides for a two-year transitional period, there were discussions about whether, instead of a Transitional Council, the Legal Practice Council should be vested with transitional powers, thereby doing away with the need for a Transitional Council. 'This is a very important issue. There must be certainty and it must be properly done,' he said. Justice Kriegler urges profession to speak out against abuses of power Justice Kriegler spoke on the rule of law and practising lawyers, as well as the demise of the SADC Tribunal and the Marikana mine tragedy that resulted in the death of over 40 people. In respect of the latter, Justice Kriegler said: 'No South African patriot can be as deeply concerned about the state of our land. We are in a bad place at the moment. I do not think we ever thought we would see a number of wounded, bloody bodies shot by South African policemen. We never thought we would see this again. It was frightful to see the scenes of Marikana, especially for those of us who fought to ensure that those days would never return.' He added that it was 'most disturbing' to see the international media 'awaiting doom' in South Africa as they had done before. In retort, he said: 'Watch us. Things are very gloomy. The portents are indeed ominous, but we are South Africans; we have come through worse times. ... By dint of common sense and a common commitment to our country, we resolved those issues through consensus building ... . We will do it again.' He said that the Marikana incident had come at a 'terrible cost' in terms of loss of lives, limbs and the economy. 'It has done tremendous damage to the system of collective bargaining we have built up so carefully. I am afraid the message given out is that if you are violent enough and threaten enough, you will get what you are asking for,' he said, adding: 'It is the function of those of us who hold the rule of law dear to show that this is not the way to do it. ... When a court of law issues an order, it is obeyed. ... I live in South Africa - a free country, a democracy. But we are not perfect.' In respect of the SADC Tribunal, Justice Kriegler said that it was 'killed off precisely because it had done its duty' by upholding the rights of the dispossessed. 'It was too courageous, it was too consistent in its application of the rule of law. We are not perfect; we stumble. Our institutions are much stronger than in comparable jurisdictions, but the rule of law is not beyond harm in this country.' Justice Kriegler also had harsh words for the legal profession for not speaking out when necessary: 'I do fault the legal profession for having made it necessary for me to be exposed to vilification in my retirement because you said nothing - you did not condemn when you needed to. I appeal to you; I have confidence in you.' He urged the legal profession to hold those in power accountable and to speak out when there are abuses of power. 'I appeal to the legal profession to ensure that the hands of the President and the legislature and the executive are strengthened and that the little foxes that spoil the vineyard are put firmly in their place. If people are abusing state power, it is the function of the law and the rule of law to see they get their comeuppance,' he concluded. President Zuma on the Legal Practice Bill and transformation of the legal profession In addition to his formal address to the association, President Zuma used the opportunity to comment on the Marikana tragedy, which he described as a 'shock'. 'No one thought we would have such an incident. This is why from government's side we thought it was important to create not just a commission of inquiry, but a judicial commission of inquiry. We must remedy what was wrong so that we do not see such a side again. South Africa is the envy of everyone and Marikana raised eyebrows to many. We are sure it will not happen again,' he said. However, despite this, President Zuma said he believed it was an 'exaggeration' to say that the country was 'almost back to apartheid': 'We are a democratic country. Apartheid was not. This is an incident I believe that we will resolve and we can guarantee that this will not happen again.' He added that if the police were found to be at fault in relation to the incident, then this must be rectified. Further, he said that the legal profession should not take certain things for granted, for example the culture of people who protect themselves by carrying weapons and who break things, and added that not dealing with this 'resolutely' can lead to the deaths of many, such as during the Marikana massacre. 'We need to deal with this from a legal point of view and ensure that the rule of law is adhered to by all citizens. We will have to work together to reach lasting solutions,' he said. In addition to speaking on the Marikana incident and the Legal Practice Bill, DE REBUS - NOVEMBER 2012 - 15 - NEWS President Zuma discussed transformation, access to justice and the role of the legal profession in a constitutional democracy. He said that while many lawyers had played a pivotal role in the struggle against apartheid and many remained committed to achieving the society they fought for, it was now time to continue the transformation process. One critical factor, he said, was access to justice. 'We are all seized with the matter of how to make our courts more accessible to the poor. Simply put, how do we make it easy for people who live far from the cities or who cannot afford to pay for justice, to obtain justice?' Another factor identified by President Zuma was the need to substitute the 'old-order legislation that still governs the legal profession in various parts of the country', including the Admission of Advocates Acts applicable to Bophuthatswana, Transkei and Venda, the Bophuthatswana Attorneys Act 29 of 1984, the Attorneys Act 53 of 1979 and the Admission of Advocates Act 74 of 1964. He said it was improper for the profession to continue to be governed by oldorder legislation in a constitutional democracy, adding that the LPB was aimed at rectifying this. Linked to this is the 'Discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African state', and Bills aimed at transforming the judicial and legal systems, he said. In addition to the LPB, these include the Constitution Seventeenth Amendment Bill (B6 of 2011) and the Superior Courts Bill (B7 of 2011), which he expected to be passed shortly. 'All these Bills ... have been in the making for the past 15 years or much longer. The fact that these Bills have taken longer than was originally anticipated should not come as a surprise. Deliberations on what the contents of the Bills should be when they are finally placed on the statute book have been robust. With hindsight, it is prudent that their passage to date has been lengthy and even controversial. It is proof of a participatory democracy at work,' he said, adding: 'The fact that we debate and debate is what makes South Africans special. The fact that we have discussed these for so long means we are trying to leave no stone unturned so, when finally agreed, the views have been canvassed sufficiently by all of us.' In respect of the LPB in particular, President Zuma said: 'I am aware that the introduction of the Legal Practice Bill has elicited robust and fierce public debates within the legal profession. Government has, over the last 15 or more years, been trying to facilitate consensus within the various formations in the legal profession on how a

transformed and rationalised legal profession should be regulated.' President Zuma said that, while government was 'anxious' not to be seen to be interfering with the independence of the profession and whereas the Bill of Rights affords every citizen the right to choose his trade, occupation or profession freely, 'of great significance, it goes on to say that the practise of a trade, occupation or profession may be regulated by law'. He said that the LPB would achieve this in respect of the legal profession. He urged lawyers who had any problems with the Bill to raise their views now that it had been put forward for comment. 'If there is a problem with the Bill, it is for you to come and say: "We do not agree with this", so that the matter is discussed,' he said. On the topic of transformation, President Zuma emphasised the role of members of the legal profession in promoting diversity in the profession. He quoted the following figures from the General Council of the Bar (GCB) and the LSSA: * Of the total 2 384 members of the GCB, approximately 72,6% are white and 23,5% are female. * Of the total number of attorneys, 64,9% are white and 33,9% are female. 'These statistics are not commensurate with the population demographics of the country in which women are in the majority. These statistics are of particular relevance in that they are a reflection of the shortage of the black and women candidates who make themselves available for judicial office,' President Zuma said. In a bid to address this, he added that government planned to ensure that 70% of its legal briefs were allocated to previously disadvantaged practitioners. President Zuma also called on the legal profession to 'do everything possible to promote interest in the law' in the youth in a bid to increase the number of black and female law students. In conclusion, President Zuma thanked those members of the profession who served on bodies such as the Judicial Service Commission, the Magistrates' Commission and the Rules Board for Courts of Law, as well as in the small claims courts. He also commended attorneys for their pro bono work, including during National Wills Week. In this regard, he said: 'Through the pro bono services and small claims courts, many of our people are able to access justice freely and expeditiously, in a country where true justice still remains largely the preserve of the rich and privileged. We are aware that many legal practitioners perform free services far beyond the minimum 24 hours.' Photo by Mike Tarica Law Society of South Africa CEO Nic Swart provided an update on the Legal Practice Bill at the JAA AGM. Chairperson's report highlights concerns about practitioners In his annual report, chairperson of the JAA, Jacques Tarica, provided an update on previously raised problems with the South Gauteng High Court, as well as those relating to some of the magistrates' courts in its jurisdiction. He also reported on the JAA's priority areas in the upcoming year. Mr Tarica noted that the JAA was of the view that many of the problems practitioners faced in its jurisdiction were shared by attorneys in other areas and the association hoped to establish a network between other attorneys' associations. In respect of the South Gauteng High Court, Mr Tarica reported that some of the outstanding issues that beleaguered the court related to: * cleanliness, disrepair, poor lighting and air conditioning; * the inability to view pre-2009 court files electronically (these files are stored offsite); and * a shortage of administration and filing staff. In terms of progress made at this court, Mr Tarica reported that the court library was 'now working well', adding: 'We are informed by Deputy Judge President Mojapelo that the move is to centralise all the different judgments in the library. The library would have all judgments delivered by the court ... accessible in electronic format.' In respect of the Johannesburg Magistrate's Court, Mr Tarica advised that the court's civil section website contains the civil trial and motion court rolls, as well as practice guidelines and forms, including for debt rescheduling. He also highlighted some problems associated with this court, such as: * Fraudulent granting of judgments and DE REBUS - NOVEMBER 2012 - 16 - Chairperson of the JAA, Jacques Tarica, at the association's 70th AGM, which was held in Johannesburg recently. Photo by Mike Tarica issuing of warrants of execution, which has been reported to the South African Police Service and a forensic investigation is currently under way. * 'Several thousand court files' are waiting for practitioners to respond to queries raised by magistrates, some as far back as three years. 'This is a matter of grave concern to the magistrates and they are considering reporting the matter to the law society,' Mr Tarica reported. * Approximately 80% of enrolled matters are not paginated and indexed. * Practitioners continue to ask sheriffs to serve summonses by way of affixing them to the principal door; however the rules no longer make provision for such service except where the address is the domicilium address. He added that the magistrates intended approaching the Rules Board to reinstate old magistrates' courts rule 10, 'due to the fact that, as the rules currently stand, they cannot destroy old court files'. Mr Tarica said that there was a demand for practitioners to serve as small claims court commissioners in Soweto. He also said that some practitioners were failing to meet their commitments at the small claims court in Johannesburg: 'There is a serious problem with commissioners who, despite having made a commitment, do not appear at court on their designated day or simply make themselves unavailable.' The JAA plans to approach the advisory board of the court to urge the Justice Minister to intervene to address this. Among its aims for the upcoming year, the association plans to increase the involvement of candidate attorneys in the JAA, including by providing mentorship and conducting workshops. Kim Hawkey, kim.hawkey@derebus.org.za

2012 Lex Informatica Cyber Law Conference Pretoria law firm Snail Attorneys at Law held its annual Lex Informatica Cyber Law Conference in Johannesburg in October. Some of the topics discussed at the event were cloud forensics, cyber crime regulation, computer forensics, domain names and online defamation. Speakers included dean of law at Brazil's Paraiba State University, Professor Claudio de Lucena Neto; Unisa Professor of intellectual property and information technology law, Tana Pistorius; Professor Murdoch Watney of the University of Johannesburg's criminal law and procedure department and Professor Sanette Nel from Unisa's department of criminal and procedural law. Domain name disputes Speaking on domain name disputes, attorney Sizwe Snail explained that a domain name is a unique address that can be used on the internet, which is visible after the 'www.' in web browsers. He said that domain names could be used to exploit one's trading name or trade mark and noted that in South Africa businesses usually registered both the .com and .co.za domains in order to operate effectively in both the South African and international business spheres and to avoid others from claiming first rights to that particular name. Mr Snail said that the Commission for Conciliation, Mediation and Arbitration equivalent for domain name disputes in South Africa is Domain Disputes, which can be found at www.domaindisputes. co.za and which deals with disputes via alternative dispute resolution (ADR). Mr Snail explained the legal process, the grounds for filing a complaint, the factors that indicate whether a registered domain name is abusive or offensive and the relevant defences. Mr Snail said that in 2006 regulations in terms of s 69 read with s 94 of the Electronic Communications and Transactions Act 25 of 2002 (ECT Act) were drafted in terms of which the concepts of abusive and offensive registrations were defined in respect of the dispute resolution process. To institute a domain name dispute, Mr Snail said that one should have access to the Domain Disputes website, which provides a 'one-stop shop' where one can lodge a dispute, have it adjudicated and, once adjudicated, have the decision published on the website and enforced by the .za Domain Name Authority. He added that (at the time of going to print) the Pretoria attorney Sizwe Snail; dean of law at Brazil's Paraiba State University, Professor Claudio de Lucena Neto and chairperson of the Law Society of South Africa's E-Law Committee, Gavin McLachlan, at a cyber law conference held in Johannesburg recently. price of instituting such a dispute is a nonrefundable R 10 000 in the case of a single adjudicator and R 24 000 in the case of three adjudicators. Mr Snail also elaborated on the ADR process and the grounds for filing a dispute. He said that domain names usually operated on a 'first-come-first-serve' principle, with regard to the first-time registration of a domain name, unless a person can show that he has prior rights to the domain name or can rely on the common law passing-off remedy or remedies in terms of the Trade Marks Act 194 of 1993. Mr Snail said that the ADR regulations make provision for a domain name complaint to be instituted where the registration of a domain name - * takes unfair advantage of the rights of a trade mark owner; * is contrary to law; * gives offence to any class of persons; or * amounts to hate speech, racism or could be considered contrary to public policy. Mr Snail provided an example of unfair advantage by citing a case involving football association FIFA prior to the 2010 FIFA World Cup soccer tournament in South Africa. In the case Fédération Internationale de Football Association v X Yin (ZA2007-0007, 14-11-2007), FIFA had a website, 'fifa.com', but had not registered 'fifa.co.za'. However, another registrant had registered the latter in his name. Mr Snail said that FIFA won the case because the website that the other registrant had registered was identical to the trade mark FIFA had registered. He said that the burden of proof shifted to the registrant as he had to show that the domain name was not an abusive registration. Mr Snail said that the adjudicator accepted an ex- DE REBUS - NOVEMBER 2012 - 17 - NEWS pert's findings in the similar case of Chivas Brothers Ltd v David William Plenderleith (DRS 00658, 16-12-2002), which involved 'chivasbrothers.co.uk'. Mr Snail said that the court took into account that FIFA was the worldwide governing body of soccer and organised and managed the international soccer tournament officially called FIFA; that it was the registered holder of numerous registered trade marks consisting of, or incorporating, the word FIFA in South Africa and internationally. In respect of abusive registrations, Mr Snail said that these involved the registration of a domain name in a manner that took unfair advantage of, or was unfairly detrimental to, the complainant's rights. Mr Snail added that factors indicating that a registration is not abusive include where the registrant has used or made demonstrable preparation to use the domain name in connection to a good faith offering of goods and/or services and when the registrant has been commonly known by the name or connected with a mark that is identical or similar to that of the domain name. Another defence would be where the registrant has made legitimate noncommercial or fair use of the domain name. Mr Snail said that an arbitrator - * can refuse a dispute if it has no merits; * may transfer the domain name; or * may make a settlement agreement a ruling. He added that offensive registrations relate to the registration of a domain name that is contrary to law. Mr Snail concluded by saying that either of the parties could refer a dispute to the High Court at any time for determination, appeal or review.

Cloud forensics Michael Kohn, manager at professional services firm Deloitte, spoke about cloud forensics, which consists of cloud computing and digital forensics. He said that cloud computing in South Africa was limited and that growth and development were needed. Mr Kohn said that cloud computing entailed the use of computing resources, both hardware and software as well as 'everything in-between', that are delivered over a network, typically the internet. Examples include social networking platforms, such as Twitter and Facebook, as well as e-mail service provider Gmail. Mr Kohn defined 'digital forensics' as 'a specific, predefined and accepted process applied to digitally stored data or digital media using scientifically proven and derived methods based on a solid legal foundation to produce after-the-fact digital evidence. The goal is to determine the set of events or actions indicating a possible root cause, where reconstruction can be used to validate the scientifically derived conclusions, he said. Mr Kohn advised that before using a cloud computing service, its security measure requirements should be ascertained. In this regard, he said that one must ask how and where the data is stored and who else will have access to it. Cyber crime regulation Professor Watney spoke on the evaluation of cyber crime regulation in South Africa. In doing so, she looked at what is understood by cyber crime and the difference between cyberspace and the internet, which she said were often incorrectly used as synonyms. Professor Watney said that the internet was commercialised and developed in the United States, which was the driving force behind the laws regarding the internet. However, she said that there would be a 'huge shift' in how cyber law will be regulated in the future. Professor Watney said that information and communication technology (ICT) in South Africa was growing. With an almost 20% internet penetration of the South African population, she said that a majority of people accessed the internet via their mobile phones, adding that many of them did not have computers, which was something banks and shops with online services needed to keep in mind. Professor Watney said that while the growth of internet penetration was positive, the downside was cyber crime. She said that while the first measure should be prevention, businesses and the government were finding that, in many instances, it was impossible to prevent cyber crime and one should have security measures in place to detect it as soon as possible. Professor Watney added that a country needed laws that allow for the investigation and prosecution of cyber crime. 'Cyber crime has evolved into an economy of its own and runs parallel to the mainstream economy. It is worth billions; it is a shadow industry and it is the sophisticated criminals that are involved in these types of crimes. This makes it very difficult when it comes to investigation,' she said. Professor Watney warned that cyber crime affects the South African economy: 'If our economy is stable, then these socio-economic crimes will also decrease,' she said. Professor Watney added that it was important that South Africa did not fall behind when it came to cyber crime regulation. She also noted that there was no uniform definition for 'cyber crime', which was problematic. 'When the Electronic Communications and Transactions Act was enacted, there was no definition of "cyber crime". I define "cyber crime" as "any unlawful conduct involving a computer, computer system or computer network, irrespective of whether it is the object of a crime (denial of service attack) or whether it is the instrument of a crime (ie, child pornography) or is incidental to the crime committed (such as money laundering in drug trafficking) where you keep record of all the transactions",' said Professor Watney. She also noted that the physical and electronic mediums were starting to overlap and it was not easy to draw a strong distinction between the two. To illutrate this, she referred to the case of convicted rapist and murderer Thabo Bester, who made use of Facebook to lure young women, who he would then rape, murder and/ or rob. She said that his crimes were physical and not cyber crimes. Professor Watney said that the National Cyber Security Policy Framework for South Africa, which was approved by cabinet in March, noted that a clear distinction must be made between cyberspace and the internet. She added that cyberspace was the place where communication took place but to be able to have communication, one needed the internet, and the internet must be present within the borders of a country. Professor Watney said that South Africa had jurisdiction over an incident that happened within the internet and cyberspace borders of the country. 'When an incident happens outside of South African borders, then it becomes a problem and that is when transnational and international laws come into play,' she added. Professor Watney said that crimes committed in an electronic or cyber medium usually related to theft or fraud. She also said it was possible to institute a claim based on defamation where a derogatory comment was made on Facebook, for example. Professor Watney said that the ECT Act was the first piece of legislation implemented in the country that dealt exclusively with the electronic medium. However, she noted that there had been some criticism in respect of the Act: 'One of the biggest criticisms is that the sentencing penalty is too lenient. For example, if a person is convicted for unauthorised access, which is a huge problem, he is either fined or given 12 months' imprisonment.' Professor Watney added that South Africa would soon have to implement legislation providing for identity theft. She also discussed other leg- DE REBUS - NOVEMBER 2012 - 18 - islation related to cyberspace, including: * The Regulation of Interception of Communications and Provision of Communicationrelated Information Act 70 of 2002. * The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. * The Protection from Harassment Act 17 of 2011, which covers instances of stalking on networking sites. Professor Watney concluded by recommending the establishment of a special police unit to deal with cyber crime, adding that there was a need for legislation compelling all victims of cyber crime to disclose that they have been victims, as sometimes big businesses did not disclose this for fear of losing business and customer confidence. Computer forensics Jaco Swanepoel from computer forensics laboratory Cyanre spoke on the topic of computer forensics, which he said involved the analysis and collation of computer data in a manner that could be presented and used in court. He said that the type of cases his company commonly dealt with related to fraud, e-mail misuse and recovery of deleted data. Mr Swanepoel said that often his company was asked to investigate what someone (for example a staff member) had downloaded, how often they had downloaded it, as well as what they were searching for on the internet. That way, he said, companies are sometimes able to monitor how an employee spends his time at work. E-commerce Professor Pistorius spoke about the external and internal alignment of South African e-commerce law. She said that legislative alignment was necessary for legal certainty and the protection of individuals. Professor Pistorius said that she expected South Africa would face a number of challenges in the near future in respect of internal law. She elaborated on the following two 'pivotal principles' in aligning e-commerce laws -