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De_Rebus_July_2011
Magazines | Law 2011-06-22 05:39:00
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    July 2011 Forfeiture of patrimonial benefits - it's not about what's fair Old or new rules for the magistrates' courts? Compensation for expropriation of old order mineral rights SCA clears up credit Act confusion

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    ... mountain kilimanjaro animal elephant city cairo

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    Regular columns Editorial * Small strides towards a technologically savvy legal system 3 Letters 4 News * Top priorities for the justice department 7 * Several law firms ranked top employers of choice 7 * SALRC calls for comments 8 * Legal Aid SA a model for other countries 8 * Chief Justice to serve until August 2016 8 * New law to keep police in check 9 * Justice Department launches children's webpage 9 * Public views on the Judge Motata case 10 LSSA news and views * LSSA comments on modes of service delivery 11 * LSSA teams up with the Pan African Lawyers Union and the International Criminal Court 12 People and practices 14 Practice notes * Previous convictions for sex offenders: The first of two registers 15 * Old or new rules for magistrates' courts? 18 The law reports 39 Case notes * SCA clears up credit Act confusion 45 * Compensation for expropriation of old order mineral rights 47 * Crossing the Rubicon 48 New legislation 49 Tax law 50 Consumer law * Significant changes - fixed term agreements and accounting for consumer property under the CPA 52 * I have a complaint - what now? 53 Employment law 55 THE SA ATTORNEYS' JOURNAL July 2011 * No 510 * ISSN 0250-0329 UJ Soweto Law Clinic launched National Wills Week: Participate and earn your pro bono credits Attorneys' mailing list inquiries: Gail Mason Tel: (012) 441 4629 De Rebus Online: www.derebus.org.za © Copyright 2011: law Society of South Africa 021-21-NPO Tel: (012) 366 8800 DE REBUS, jUly 2011 1 8 11

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    features 20 Bold interpretation in mining law: The Constitutional Court approach in the Bengwenyama case Freddie Khunou discusses the decisions in the North Gauteng High Court, the Supreme Court of Appeal and the Constitutional Court in the Bengwenyama case. He states that the outcome of the case means a lot for the regime of prospecting and mining rights in South Africa. 28 Traditional councils perpetuate apartheid tribal schema Mazibuko Jara provides another view to that presented by Freddie Khunou and Seth Nthai in 2011 (Jan/Feb) DR 32, where they argued that traditional councils established by the Traditional Leadership and Governance Framework Act 41 of 2003 are in harmony with the Constitution. 36 Forfeiture of patrimonial benefits - it's not about what's fair Clement Marumoagae says the law regarding forfeiture of patrimonial benefits on divorce continues to trouble most legal practitioners. In this article he attempts to clear up some of the confusion and provide guidance to practitioners. Q & A with LSSA co-chairpersons Contributory negligence for passengers who fail to buckle up 2 DE REBUS, jUly 2011 24 De Rebus editor Kim Hawkey met with the co-chairpersons of the Law Society of South Africa to discuss the Legal Practice Bill, transformation, and the challenges individual attorneys and the profession as a whole are currently facing. 32 Lindy Langner writes about how contributory negligence may be attributed to passengers involved in motor vehicle accidents who neglect to wear their seat belts. She states that what has to be proven is that their omission in not wearing a seat belt has impacted on the extent and severity of any injuries sustained, in accordance with the Apportionment of Damages Act 34 of 1956.

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    Editor Kim Hawkey BA LLB (UCT) BA Hons (Wits) attorney and conveyancer Editorial sEcrEtary Shireen Mahomed Editorial committEE Krish Govender (Chairperson) Peter Horn * Sithembele Mgxaji * Danie Olivier 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@mweb.co.za contEnts Acceptance of material for publication is not a guarantee that it will in fact be included in a particular issue since this must depend 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. 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 In 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 In yellow pages supplement: Tel: (012) 366 8800. Fax: (012) 362 0969 PO Box 36626, Menlo Park 0102 E-mail: yp@derebus.org.za account EnquiriEs Alana Abrams Tel: (012) 366 8800 E-mail: alana@lssa.org.za circulation De Rebus, the South African Attorneys' Journal, is published monthly, eleven 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 EnquiriEs: Gail Mason Tel: (012) 441 4629 E-mail: gail@lssalead.org.za All enquiries 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: R572 per year Retired attorneys and full-time law students: R440 per year C M Y CM MY CY CMY K Cover price: R60 each Mpasa logo.fh11 6/17/09 3:10 PM Page 1 Composite 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) Subscribers from African Postal Union countries (surface mail): R910 (VAT excl) Overseas subscribers (surface mail): R1 111 (VAT excl) New subscriptions and orders: Alana Abrams Tel: (012) 366 8800 E-mail: alana@lssa.org.za Member of the Magazine Publishers Association of South Africa. Member Of The Audit Bureau of Circulations of Southern Africa editorial Small strides towards a technologically savvy legal system last month the Justice Department announced the launch of a video link between courts and detainees in correctional centres. Rather than the cumbersome process of signing out and loading up awaiting trial prisoners into police vans each morning, with the concomitant risks of escape, smuggling and delaying court proceedings - often simply to have a matter postponed by the court - detainees in certain circumstances will now be able to 'appear' before judicial officers from the protective custody facilities where they are being held. Justice Minister Jeff Radebe announced that the Audio Visual Remand (AVR) system that was launched in Mitchell's Plain, Cape Town would be extended to a further 47 courts and 21 correctional centres nationwide. While this is a welcome move in the right direction towards the modernisation of the country's legal system, it represents the slow, almost stagnant, technological progress in the legal field to date. The pilot took place in Durban in October 2005 and it has taken close on six years to reach the current infancy stage of its roll out. And while South Africa takes these baby steps, it continues to lag far behind other jurisdictions in terms of technological innovation. In an interview with law Society of South Africa co-chairpersons Nano Matlala and Praveen Sham in this edition of De Rebus, Mr Matlala lists the lack of information technology and communication (ICT) advancement as the biggest threat to the attorneys' profession in South Africa. Mr Matlala cited the electronic filing (or e-filing) systems used in courts across the United States, which include mandatory e-filing of documents in the federal courts, as an example of what can be achieved. And it is not only first world European or American countries that have made leaps in this regard. While our courts, and many lawyers, are slowly getting to grips with technology, in countries like Kenya, for example, virtual courts are already in full swing. It is encouraging that Minister Radebe in his budget speech last month said that the department had earmarked R 210 million for renewing ICT infrastructure in the medium term. It is uncertain, however, how much of this funding will be available for technological innovation after the ailing information technology (IT) systems of the various divisions that fall under the department are upgraded. A recent report by the Portfolio Committee on Justice and Constitutional Development on the department's budget vote highlights some of the ICT challenges currently experienced by these divisions, and in particular the courts. Problems mentioned include old and out of warranty servers, slow networks, and ageing infrastructure in general. The committee also, worryingly, noted that it was 'unclear', given the 'key role' that IT plays in strategies to improve service delivery, whether the department had adequately addressed maintenance and upgrading of IT infrastructure in its planning for expenditure. However, in light of Minister Radebe's statement in his budget speech that access to justice is currently the department's main focus, ICT should be a priority. Physical access to courts, delays in meting out justice and unaffordable legal fees are three big hurdles to access to justice. These can be alleviated to some extent by virtual proceedings. Virtual court hearings bring justice a step closer to those living in rural areas without court infrastructure and also speed up proceedings by cutting down on delays caused by transporting prisoners, witnesses, legal practitioners and others to court. An additional bonus is that witnesses, including experts and police officers, who may be reluctant to spend a full day (or sometimes several days) in court (and away from their jobs) waiting to testify would be able to discharge these duties without physically attending court. This is especially so for witnesses who are based abroad. Technology may have its glitches, but these are minor when compared to the potential benefit it can have for the efficient functioning of our courts and the justice system overall. DE REBUS, JUly 2011 3 q

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    L e t t e r s to the editor Legal Practice Bill I was very disturbed to read in your last issue that the new legal Practice Bill provides that interest earned on investments of trust monies will be payable to the Fidelity Fund and not to clients. Most of these investments flow out of conveyancing transactions, where it is very important to get deposits paid by their due date. Out of many of these investments guarantees are issued to cover the balance of the seller's debt to his mortgage lender. If clients will no longer be entitled to the interest earned, it is going to be very difficult to get them to pay their transfer costs and deposits in good time. Putting them in default and threatening to cancel their sales will merely aggravate the problem. Are there so many trust account defaulters in our profession to justify this change? To my knowledge the Fidelity Fund has always had adequate funds to cover claims against it. How are we to explain to property purchasers that they PO Box 36626, Menlo Park 0102 * Docex 82, Pretoria E-mail: derebus@mweb.co.za * Fax: (012) 362 0969 cannot get the interest on their funds because it is needed to cover claims against defaulting attorneys? I trust that this will be corrected before the Bill is finalised. John Gilchrist, attorney, notary and conveyancer, Benoni Rolstoel toegang tot howe 'n Prokureur wat rolstoel gebonde is, moet liewer nie probeer litigeer in die Hoë Hof in Kaapstad nie, want hy sal óf nie toegang kry nie, óf ernstig verneder word in die proses om toegang te kry. Ek het onlangs ervaring hiervan gehad. 'n Senior prokureur van Pretoria het gelitigeer in die Hoë Hof, Kaapstad. As die Kaapstad korrespondent, het ek alle voorsorg probeer tref om te verseker dat hy so vinnig en maklik, as wat sy rolstoel hom sal toelaat, by die hof kan inkom. Ek het uitgevind dat reëlings met die bestuurder van die hof getref 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. moet word. Boodskappe is vir die bestuurder gelaat en geïgnoreer. 'n Skrywe het uiteindelik reaksie ontlok. Kortaf was die antwoord: 'Gebruik die polisie ingang'. Dit beteken dat die senior prokureur voor die geslote deur van die hof se polisie ingang beland. Die knoppie wat gedruk moet word vir aandag is te hoog om by te kom. Miskien sal 'n verbyganger hom ontferm en die knoppie druk. Na 'n lang wag, word die deur oopgemaak en staan die polisielid verslae daar. Hy weet nie wat om te maak nie. Ken net van kriminele. Nou moet die prokureur smeek vir toegang tot die hof. Die polisielid ken nie die siviele howe nie en kan nie die prokureur na die regte hof neem nie. Teen hierdie tyd het die hof reeds begin. Die hysbak is te klein vir die prokureur en vir die polisielid. Dus begaan die prokureur hom alleen in die hysbak en weereens is die knoppies binne die hysbak te hoog om by te kom. Nou is die hysbak se deur agter hom toe en hy kan slegs daar uitkom indien iemand anders, buite die hysbak, toevallig die hysbak wil gebruik. Uiteindelik gaan die hysbak se deur oop - nie agter of voor die rolstoel nie - maar aan die kant. Die hysbak was in die eerste plek te klein vir die rolstoel en daar is geen manier wat die rolstoel kan omdraai nie. Terug na die grondvloer. Die polisielid het nou al probeer vlug, maar hy is alleen aan diens en gelukkig nog medelydend. 'n Ander roete is gevind deur 'n klein kamer, maar eers moet al die tafels en toerusting uit die pad gestoot word om vir die rolstoel plek te maak. Die verhoor afwagtendes het natuurlik niks beter om te doen as om kommentaar te lewer nie en die vernedering vererger. Uiteindelik kom die prokureur en die polisielid by 'n plek aan wat darem nog lyk na die binnekant van die regte hof, maar by elke ingang of uitgang word trappe teëgekom. Dan moet telkens 'n langer roete gevind word. Na 'n baie lang tyd en erge frustrasie, kom die prokureur by die regte hof aan. Nog is het 4 DE REBUS, jUly 2011

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    einde niet: Die deur is te nou vir die rolstoel om deur te kom, en die tweede deur se knip kan nie oopgemaak word nie. Indien 'n nutsman gevind kan word (vorms moet eers ingevul word, dit is immers 'n staatsdepartement waarmee ons te doen het), word die deur oopgemaak en is die prokureur in die hof waar hy 'n uur gelede moes gewees het, so ontsteld dat hy nie nou op die litigasie kan konsentreer nie. Nee, dis nie die einde van die storie nie! Die lae houtdeur wat die publieke sitplek van die advokate se sitplek skei, is te nou vir die rolstoel en die prokureur moet van agter die hof af skree om deur die regter gehoor te word. Die gerug is dat daar nog 'n ingang na die hof deur die motorhuis se ingang is. Die sekuriteitswagte daar het nog nooit van die regter gehoor nie en sal nie opdragte van 'n regter neem om die prokureur daar in freshidentity 4081 te laat nie. Die hofbestuurder weier volstrek. So 'n situasie is onaanvaarbaar. Die gevolg hiervan is dat gestremde prokureurs nie kan litigeer nie. Ek verneem graag of die situasie in ander howe beter is? Gee my tog hoop! Elmarie Neilson, prokureur, Kaapstad Enduring powers of attorney The article about the need, in South Africa, for enduring powers of attorney for older persons with impaired decision making ability by Bobby Bertrand, in 2011 (May) DR 38, makes for interesting reading. As mentioned in the article, this topic was originally visited in 1987/1988 (by a subcommittee of the Association of law Societies of South Africa under the chairmanship of Keith Wilson, a former President of the association). A report was submitted to the then South African law Commission, where it, presumably, continues to gather dust. Without discussing the apparent merits or demerits of an enduring power it must be noted that acceptance of such a far reaching document will simply be blocked by the powers that now hold sway - the banking fraternity. As it is, most banks, through the majority of their branches, refuse to accept a general or special power of attorney for registration or for noting, relative to a client's affairs. This attitude extends to the refusal of most banking officials to accept notarially certified copies of a general or special power of attorney and to the refusal to accept a notarially certified copy of letters of curatorship or letters of executorship. The majority of banking institutions, or at any rate the staff of banking institutions, will only accept a mandate from a customer that has been produced on a 'bank form' that requires the signature of the bank's client in the presence of an employee of that bank. Should the client be laid up in hospital with both arms and both legs in plaster - well that is just too bad! No signature by the client means no joy for the client's designated agent. The question I pose is whether or not an enduring power of attorney will prove to be of any practical worth? ARE YOU A pRActising AttORnEY OR cAnDiDAtE AttORnEY WisHing tO FURtHER YOUR stUDiEs in LAW in 2012 AnD 2013? The Attorneys Fidelity Fund offers bursaries to candidate attorneys and practising attorneys for further study in all fields of law at South African Universities. For more information or application forms for 2012, kindly contact: The Operations Co-ordinator The Attorneys Fidelity Fund P.O. Box 3062, Cape Town 8000 IF So, Apply now To: A t t o r n e y s F i d e l i t y F u n d Enhancing public trust in the profession RFJ Yeowart, attorney, Cape Town Visit the Fund's website at www.fidfund.co.za Tel: Ms Liesel Decker at 021 424 5351 E-mail: FurtherStudybursary@fidfund.co.za Applications close on 15 August 2011. 4081 AFF Postgrad Bursary Ad.indd 1 5/30/11 9:22:23 AM DE REBUS, jUly 2011 5 q

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    Maintenance and Master's Office services will receive top priority in the year ahead, Justice Minister Jeff Radebe said when delivering the department's budget vote speech last month. In addition, the Minister used the opportunity to discuss progress made in the past year, as well as to highlight some of the challenges the department is currently facing. While many expected the Minister to introduce the longawaited legal Practice Bill in parliament, he said he expected the Bill to be introduced in parliament soon, although this had not happened at the time of De Rebus going to print. The Bill is one of a host of laws that the department plans to introduce in the upcoming year, the Minister said. These include the Constitution Seventeenth Amendment Bill and the Superior Courts Bill, which are part of the department's plan to transform the judiciary and legal profession. Minister Radebe said that the current legislative framework that regulates the courts and profession were not suited for the post-1994 nonracial and non-sexist democratic society. 'I am sure that the judiciary, particularly the judges as well Top priorities for the justice department as the legal practitioners in the advocates' and attorneys' profession, respectively, are waiting anxiously for the long overdue reconstruction of their respective professions, which hitherto are steeped in inequality, division and fragmentation that is reminiscent of the apartheid policies of the past,' he said. The National Prosecuting Authority Amendment Bill, the Muslim Marriages Bill and the Traditional Courts Bill (which was previously withdrawn from parliament), as well as legislation to address hate speech and xenophobia, would also be introduced in parliament in the year ahead, the Minister said. One of the challenges the department was facing was an increase in litigation against the state and it had embarked on an overhaul of the state attorney's dispensation. A recent report by the Portfolio Committee on Justice and Constitutional Development on the department's budget vote attributes the 'significant increase' in litigation against the state to citizens being more aware of their rights, opportunism, the fragmented approach to management of state litigation, and the absence of a framework for using alternative dispute resolution mechanisms. Another concern raised by Several law firms ranked top employers of choice Norton Rose South Africa (formerly Deneys Reitz) is the highest ranked law firm among the top employers of choice in the category of humanities/liberal arts/law, according to the recent 2010 South African Student Survey conducted by Magnet Communications. The law firm was ranked eighth in this category, with Werksmans Attorneys in the 15th spot, Webber Wentzel Attorneys at number 17, Bowman Gilfillan at number 22, Adams & Adams at 27, Cliffe Dekker Hofmeyr at 54 and Eversheds at 73. The overall top employer in this category was the Department of Education. Magnet Communications project manager, Malin Sundin, told De Rebus that the company gathered the data over three months and had elicited responses from over 38 700 students at the country's 23 universities. The research identifies employers in four areas of the committee in its report was the inadequacy of security at the country's courts and other service delivery points that fall under the department, in light of a number of incidents of serious crime against staff and members of the public, including intimidation, murder, robbery, theft of state assets and dockets, as well as escapes. The committee said that, as a result of these incidents, the department was exploring the possibility of using the services of the South African National Defence Force and the police to provide additional security at courts. In his speech, Minister Radebe said access to justice was the department's primary focus, adding that 70% of the current budget was allocated to service delivery programmes. He also spoke about the Audio Visual Remand (AVR) system for awaiting trial detainees, which was launched last month. The AVR initiative allows cases to be remanded via video link, which, among other things, aims to speed up the time taken to finalise cases. As part of its priority focus areas, the department has earmarked R 13 million for the appointment of an additional 65 maintenance investigators, who are tasked with locating news errant parents and hidden assets to provide for children, as part of improving the country's maintenance system. In terms of improving services provided by the Masters' Offices, the department planned to implement 'drastic measures' to stamp out corruption, to implement electronic financial transactions, to improve turnaround times, and to provide online databases to address the credibility of the administration of insolvent estates. In addition, plans included the roll out of the Integrated Case Management System to all Masters' Offices. Other topics addressed by the Minister in his speech included the budget allocated to the building of new High Courts in Limpopo and Mpumalanga, as well as several magistrate courts across the country; the hiring of additional staff to enhance the capacity of court administration; reducing criminal case backlogs in regional and district courts; and the need to encourage more women to pursue a career in law to address the shortage of 'eligible female judges' candidates'. Nomfundo Manyathi, nomfundo@derebus.org.za study, namely business/commerce; engineering/technology; health care/health sciences/sciences; and humanities/liberal arts/law. Ms Sundin said the research questionnaires asked students to share their thoughts on a wide range of topics, such as where they would prefer to work, what their career goals are, and what makes an employer attractive. The top employer across all fields was government. In comparison to 2009's survey, Norton Rose South Africa moved up two places on the list, Werksmans Attorneys rose by three positions, Webber Wentzel Attorneys by eight, Bowman Gilfillan by 23, Adams & Adams by one, Cliffe Dekker Hofmeyr by 11, and Eversheds dropped four places from 69 to 73. Nomfundo Manyathi, nomfundo@derebus.org.za DE REBUS, JUly 2011 7

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    SAlRC calls for comments The South African law Reform Commission (SALRC) has published a number of discussion papers and called for comments on these by the end of August. In its four latest discussion papers, the SALRC has reviewed legislation administered by the departments of Basic Education, Communications, Defence and Mineral Resources. * Discussion paper 122 of project 25 concerns 91 statutes administered by the Department of Communications, which the SAlRC recommends should be repealed or amended. * Discussion paper 123 of project 25 involves the review of 41 statutes administered by the Department of Defence. * Discussion paper 124 of project 25 deals with 11 principal Acts and 17 amendment Acts administered by the Department of Mineral Resources. The SAlRC recommends that some of these be amended, while others should be repealed. * Discussion paper 125 of project 25 relates to legislation administered by the Department of Basic Education. The discussion paper aims to elicit comments on the SALRC's preliminary findings and recommendations on the constitutionality, redundancy and obsolescence of this legislation. The discussion papers are part of the SALRC's programme to investigate the revision of the country's statutes to ensure they meet constitutional muster. Comments can be sent to: The Secretary South African law Reform Commission Private Bag X668 Pretoria 0001 Nomfundo Manyathi, nomfundo@derebus.org.za UJ Soweto law Clinic launched The University of Johannesburg (UJ) recently launched its third law clinic at its Soweto Campus. The clinic was officially opened by Deputy Chief Justice Dikgang Moseneke. Clinic principal attorney, Alet Beyl, said the law clinics are run by the university's law faculty and offer pro bono services, as well as help facilitate training of law students at the university. Ms Beyl said one of the aims of the Soweto law Clinic was to further improve access to justice to the community in the Soweto area, as well as to bring final year LLB students into contact with the challenging realities of legal practice. The University of Johannesburg's Vice Chancellor, Professor Ihron Rensburg, with Deputy Chief Justice Dikgang Moseneke at the launch of the Soweto Law Clinic. Nomfundo Manyathi, nomfundo@derebus.org.za legal Aid SA a model for other countries Legal Aid South Africa's (Legal Aid SA's) service delivery model has over the past few years served as an example for several countries which have approached the organisation to provide support for the development of their own legal aid systems. To date the organisation has been approached by delegates from Nigeria, Uganda, Moldova in Eastern Europe, Indonesia, Zimbabwe and recently Iran to provide guidance and share its expertise. In a press release, Legal Aid SA said the Iranian delegation had chosen to approach legal Aid SA for assistance because of the organisation's 'unique service delivery mechanisms'. 'Legal Aid South Africa pro- vides a unique experience in the provision of legal aid by an institution that is independent of the state but which is nevertheless fully funded by the state,' said Caitriona Harte from the International Bar Association, who led the Iranian delegation. Legal Aid SA spokesperson, Mpho Phasha, credits the organisation's mixed delivery model as the reason for the international interest in it. 'At the start of this decade, the organisation had successfully moved to a system of delivery which involved creating a team of in-house legal workers. We grew as an organisation, moving from just administering legal aid to actually delivering that aid ourselves,' he said. Mr Phasha said other highlights from the past year included the Legal Aid Advice Line, which started operating in June 2010 and had received a total of 50 279 calls by 3 June 2011, with an average of just over 4000 calls per month. Mr Phasha said another big achievement last year was an agreement between legal Aid SA and the Master of the High Court, which provides orphaned children with legal aid in the winding up of their deceased parents' estates. Nomfundo Manyathi, nomfundo@derebus.org.za Chief Justice to serve until August 2016 President Jacob Zuma recently extended Chief Justice Sandile Ngcobo's term of office by a further five years. His decision to do so has, however, been met with criticism and a number of commentators and organisations have questioned its constitutionality. Justice Ngcobo, who has served at the Constitutional Court since 1999 and who became Chief Justice in 2009, was set to leave office in August this year. In terms of the Judges' Remuneration and Conditions of Employment Act 47 of 2001 (the Act) Constitutional Court judges are discharged from office when they turn 70 or after serving 12 years as a judge of this court, whichever occurs first, except where an Act of parliament extends the term of office of a Constitutional Court judge. The Act provides for an extension of a judge's term if the judge in question did not serve at least three years as a judge in another court before joining the Constitutional Court. In a press release by President Zuma last month, he said that Justice Ngcobo did not qualify in terms of this exception, but that his tenure could be extended under s 8(a) of the Act. This section states: 'A Chief Justice who becomes eligible for discharge 8 DE REBUS, JUly 2011

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