Don Quijote

Gentle reader, this is the latest edition of a series now 21 years old. Snippets commenced publication in 1997, was modernised and rechristened in 2007 as BusinessBytes and now, owing to a restraint, must needs re-brand. You may note the image of an extract of Posada’s Calavera of Don Quixote; a reminder to an absurdly chivalric that one should not take oneself too seriously. Regards, Dr. Daan Steenkamp

Practice

MDPs

The Legal Practice Act, 2004 will be implemented in earnest on 1 November this year. Section 6(5)(i) thereof provides that its Council, must, at the Minister’s request, advise him on multi-disciplinary (legal) practices (MDPs).

MDPs don’t formally exist in South Africa but do elsewhere. I say formally, as there are many instances in which professionals group with others to provide a one-stop service. Think of banks employing accountants, accountants employing lawyers and so forth. The problem that one has is that the professional body that governs each will not allow a member to be subject to the governance of another body, of which he is not a member.

Purism means nothing to a consumer. The consumer simply wants the best of both worlds without having to do multiple consultations.

Recently the LSSA presented a roadshow on the new Act: I asked the worthy at the podium to give me a yes or no answer on whether he foresaw MDPs being allowed in South Africa. It took him 5 minutes to say nothing.

Speaking for myself, I have little doubt that MDPs will, at some point, form a part of our legal future.

 

Child abuse

The law fails to stop child abuse; right? At least one respected editor says so. BS: law is rooted in and reflects the sentiments of society. It can punish but not prevent. Prevention lies within the willingness of a society to countenance abuse.

 

Cases: Fraud unravels all

The summary of an SCA judgement, a that was handed down this past Thursday, states that an agreement of settlement of litigation, wherein the lawyer for one of the parties forged signatures, cannot be relied on by that party. I was most surprised that such a matter had gone to the SCA: one would have thought this to be self-evident. Looking at the judgement, the argument for upholding the contract, ran that parties could be held to a contract where the lawyer/agent of one, had exceeded his mandate on the basis of estoppel. The court would have none of it, holding that no consensus/agreement had ever been reached.

Banisters Printer v D and A Calenders

http://www.saflii.org.za/za/cases/ZASCA/2018/17.html

PS: At University we were taught that there is a difference between an agreement and contract. The former is unenforceable in law i.e. an agreement to meet for lunch. The latter is enforceable. To this day I am offended by the use of the former for legally binding deals by lawyers: to find this so used in an SCA judgement….

 

Property

Our debate on land reform rages yet: I believe that some good will come of it as we should revisit the feudal practices which yet exist in our country; where those resident in the tribal areas obtain a Permission to Occupy (PtO) from the local chief rather than actual title. Such a PtO entitles one to occupy but does not give one ownership and thus the right to mortgage the property or, technically speaking, to sell it and so on. A well-known example of this misunderstanding comes from a report, some years back, that the Prez had mortgaged his home in KZN to pay for his indulgences. That this was not technically possible, was lost on most of his audience.

One way of enabling rural holders of a PTO in rural areas is to legislate that such permissions are land and can be “mortgaged”. In fact, the now disgraced VBS bank had reportedly granted such “mortgages”.

Very little needs to be done to allow this. If one were to legislate that such consents endure for a fixed period and may be sold or inherited, then the main remaining obstacle for registration is identification of the land which may be occupied. Whatever purists hold, many thousands of such occupation rights are dealt with daily without registered diagrams identifying the land given for occupation. Watered-down title is not new to South Africans and an alternative, less secure system, is preferable to that which applies in our tribal areas, governed, at least in popular perception, by whim.

 

Sale of State land

Our former Finance Minister (famous for the Gigaba Switch) had mooted plans to sell unused State land to fund unsustainable SOEs, stating that this would make some R40bn available for redistribution. Our total SA commercial real estate spend for the previous year was R13bn. One wonders where the money, to fund such an offload, would come from? One can also be forgiven for wondering why the issues of unsustainability is not addressed.

 

More on land

Prof Cousins, of the Dept. Poverty, Land and Agrarian Studies, UWC, again made the point that much of our debate and commentary on the issue of land reform is ill-informed as we do not have reliable data on the issue. A few points made by him are:

it is estimated that some 60% of all South Africans hold land or housing outside the formal registration system;
it is not so that the great majority of land restitution claimants have chosen cash rather than restoration: around 87% of land claims were to urban properties which could not be returned to the claimants;
the endlessly repeated assertion that 90% of land reform projects have failed has no foundation. He states that around 50% of such projects have improved the livelihoods of beneficiaries to a degree – this does not say that they have been highly productive; he merely notes that these have had the effect of reducing poverty and inequality.

 

Water rights

The keynote speaker at the recent International Women’s day, held at Boksburg, said: “We did not check when we spent R50bn and got 4% of the land back, that water rights would have a severe impact on the parties that have acquired the land. They have been left without water access because those water rights are still being held by white landowners.” Really? But then, this was said in Boksburg…and such nonsense is indicative of the ignorance of the speaker and accepted as truth by a receptive audience…

(I hasten to disclose that my spouse of 40 years is from Boksburg..)

 

Comment

Race card

The run on VBS Bank, following on the Treasury enforcing a prohibition on municipalities investing in mutual banks, has led to that bank being placed under curatorship by the Reserve Bank. Note that the run was initiated by the Treasury, an arm of our State, chiding municipalities that legislation prohibited them from investing in a mutual bank.

For the chairperson of that bank, followed closely by Mr Malema, to say that these decisions were anti-black, is blatantly nonsense. One thinks immediately of the dismissal of our previous national rugby coach; said to be owing to his being black. One wag responded that the gentleman misunderstood: he had been hired because he was black, but fired because he was useless.

‘Nuff said.

 

Left and right

The Italian election resulted on the poor south being left-wing and the wealthy north, right-wing. Unsurprising: if you were poor would you not wish to share; if you were wealthy would you want to share?

 

Standing up

There is a plethora of sayings quite probably inspired by Bonhoeffer, a German Lutheran pastor who said: “Silence in the face of evil is itself evil… Not to speak is to speak. Not to act is to act.”

We are daily confronted by allegations of the existence of a mythical Zulu kingdom; the ethos of Ubuntu, the English being colonialists; the Boere speaking straight and so on. One should ask oneself whether these are true?

To not question assumptions will allow our national debate to build on untruths, which will cost us dearly.

 

Lighten up

Churchill: Madam, would you sleep with me for £1 million?

Woman: Why Winston, yes, I would.

Churchill: What about £10?

Woman: What sort of woman do you think I am?

Churchill: We have already established what sort of woman you are, now we are just negotiating the price.

 

Land reform so far

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Daan Steenkamp Attorneys

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