Daan's Snippets Don Quijote

Order without law: ADR - Universities, in the past, taught on the assumption that litigation is the primary method of dispute resolution. This mindset is therefore that which tends to dominate when lawyers are involved in dispute.

Private ordering is the term used when parties contractually agree on a method of dispute resolution. The advantages of such an approach is generally that confidential information is not made public, that the relationship that exists between parties and the reciprocity of trust is maintained as well as a and cost and time savings.

ADR, the so-called gentler art of reconciliation, is therefore recommended in commercial contracts where the parties are engaged in mutually beneficial long-term relationships.

If the theory behind ADR interest you, drop me a note and I shall send you an article on the theory of private ordering and dispute resolution by professors Hutchinson, Rycroft and Porter-Wright.


Character and the law

You might recall that I had, some time ago, reported on the case where Mdyogolo (a gentleman who had had 3 prior convictions) wished to be admitted as attorney and the judge concerned would have none of it. Interestingly the would-be attorney had stated that the robbery, which was by far the most serious of his offences, had been part of redress against apartheid. The Law Society involved simply let this slide.

That case had led to an SALJ article being written by Kruuse on character and legal practitioners. I really liked the following quotation from her: she said that the case was a window “into a world where a calling to the side-bar need not require honesty as a necessary attribute of a legal practitioner, and where regulatory bodies of the legal profession fail in their mandate to protect the public. Further, the case raises the rather dismal spectre of the “judiciary having to act as a bulwark against the very people who are tasked with guiding them through the complexity and diversity of claims that arise in practice.”

Ask me and I shall send you the relevant article.


Benefit for creditors in an insolvency

One of the factors taken into consideration when sequestrating an individual is that there has to be a benefit to the creditors of the insolvent individual. That a misstatement, of such benefit when applying for sequestration may have further consequences, is illustrated by an article by Roestoff. He deals with a case in which the applicant had misled the court as to the benefit to creditors that would be had on her sequestration. On applying for rehabilitation, the court held this against her and refused rehabilitation.

The writer comes to the conclusion that South African insolvency law is in need of overhaul. If this interests you, ask me for the article.


Quasi-mutual assent/law of contract

In principle, our law holds that when an offer is made one cannot accept that offer by making changes to the initial offer: such conduct amounts to a counteroffer which must again be accepted by the other party. What happens when parties go through a series of such counter offers (i.e. changes of the offers made by the other) and one of them ends up making a counteroffer which the other does not accept but on which that other acts? The reliance theory holds that if the offeror had reasonably relied on the conduct of the other (which seemingly signified acceptance) a contract is deemed to have been formed.

Nortje, UP discusses this issue in a TSAR article and offers suggestions on how the law might change. These are, for a practitioner unhelpful. However, the exposition of the current law and its weaknesses is of interest to practitioners and if you wish, I would let you have a copy of the article.


Lawfulness as a defence to a criminal charge

In the greater scheme of things the judgement in the case referred to below deals with a very small scale offence i.e. fishing in a marine sanctuary. Furthermore, when dealing with criminal charges, legality very seldom features, as the mere fact that one is criminally charged presupposes that one’s conduct is illegal. However, the principle dealt with in this case has far-reaching consequences. The central issue was whether one could raise, as defence in criminal proceedings, the exercise of a customary right of access to marine resources. The Supreme Court of Appeal found that the Marine Living Resources Act had not positively dealt with and extinguished a customary right of access to marine resources by a community to the Dwesa-Cwebe conservation area.

Our constitution recognises customary law as an independent and original source of law in terms of section 211 of the Constitution. In this case the legislation had simply been deficient and had not properly dealt with (expunged) the rights held by the local community and, resultantly, the conduct of community members by fishing within this reserve was not unlawful.

This judgement will serve to caution legislators to consider indigenous custom properly prior to drafting legislation and will quite possibly undo much similar legislation which rides roughshod over pre-existing communal riots.

http://www.saflii.org.za/za/cases/ZASCA/2018/87.html


Mineral rights for the living?

Do the rights to an old order mineral right  expire with the death of the applicant for conversion thereof into new order mineral rights? No. The case below is an interesting one and unfortunately an insight into the circus that is run by our Department of Mineral Resources.. For specialists only.

http://www.saflii.org.za/za/cases/ZASCA/2018/91.html


Insolvency practitioners

This week past the Constitutional Court gave judgement in a case where insolvency practitioners took on the Minister of Justice on the method whereby the Minister had arranged to appoint insolvency practitioners.

Reading this judgement, I confess to having had sympathy with the Minister. The Minister had adopted a method of allocating insolvency work which the court found wanting in rationality in many ways – which I do not intend to discuss.

What is apparent though is that, despite having won this skirmish, old order insolvency practitioners may not have won a decisive victory. In fact, I suspect that despite the flush of initial success, the comments by the court might lead to even more severe restrictions on insolvency work in favour of especially white male practitioners.

http://www.saflii.org/za/cases/ZACC/2018/20.html


Water law

A recent case, emanating from the Western Cape Division, illustrates how neighbouring farmers can clash over water rights. A neighbouring farmer had drilled a borehole 16 m from a water storage dam on the farm of his neighbour. That farmer withdrew so much water from the borehole that (so it was alleged) the dam virtually ran dry. Interesting for specialists only.

http://www.saflii.org.za/za/cases/ZAWCHC/2018/83.html


Medical negligence/injection

An injection was given at a pharmacy to assist in slimming the applicant. The injection was given too close to the spine which caused the patient to have an epileptic seizure. The court found that, whilst unusual, you took your victim as you found her and, in this case the injection had been the cause of the seizure; it resultantly judgement against the pharmacist. For specialists only.

http://www.saflii.org/za/cases/ZAFSHC/2018/111.html

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