· In 2014 Court-Annexed Mediation was introduced in South Africa, purportedly to improve access to justice by providing a dispute resolution system which is efficient, amicable and affordable. An academic (UFS) criticises this system and suggests that the mediation scheme, contemplated by Rule 41A of our Uniform Rules of Court, should be extended to apply to the magistrates’ courts also.
· The probity of practitioners has been much in the news of late. An article in GroundUp quotes what was instilled in us as junior practitioners: that any practitioner who deliberately places before a court or relies upon a statement which he knows to be false should not be fit to be a member of our profession. More so, as is shown by the conduct of practitioners in other fora and indeed in our High Courts, there are some who file heads of argument late, of poor quality and engage in insulting, inappropriate and disparaging language towards others or judicial officers. The following article is written by a practising judge which may fruitfully read : https://www.groundup.org.za/article/restoring-dignity-to-our-courts-the-duties-legal-practitioners/ Legalbrief ran a similar write-up on the slippage of ethical standards by practitioners prompted by comments made by Adv Watt-Pringle SC, who is retiring as chair of the GCB.
· The RAF is again in the news for all the wrong reasons. It lost a case in which it sought to prevent the Auditor-General from releasing her report on the fund’s annual financial statements for the past year to Parliament. It has further announced that it will seek to retrench some 400 employees by the end of November.
· If you will benefit (think fees) from a deposit made into your trust account, you will bear the onus of proving that the payer was not insolvent at the time of payment under the Insolvency Act: http://www.saflii.org.za/za/cases/ZASCA/2022/128.html
· If a majority of the number of Trustees that must be appointed in a trust, act, is that act valid, despite the number of trustees set within the trust deed not having been complied with? No: http://www.saflii.org/za/cases/ZAGPJHC/2022/719.html
· Are underhand contracts between spouses that have entered into an ANC, valid, if the effect thereof is contrary to the ANC? No: http://www.saflii.org/za/cases/ZASCA/2022/123.html
Courtesy of STBB.
o The Pietermaritzburg deeds office did not function for 3 ½ days this past week owing to water woes and its diesel generator running out of fuel when the inevitable power failure arrived. A rough calculation indicates that this delay is tantamount not releasing about R1/2bn into our economy daily.
o My experience is that the commercial conveyancing search-engines, which piggyback on the central deeds office recordal system often provides incorrect information and failures to give microfilm references, make property searches difficult.
A recent article on rental deposits is an interesting read: on the one hand a deposit is a barrier to leasing and furthermore is often not paid back whilst, on the other hand, the cash held is often too little to give proper security to a landlord. The difficulty with the write-up is that it is prompted by a bid to sell a new product by LeaseSurance : https://propertywheel.co.za/2022/09/is-it-time-to-rethink-cash-deposits-in-the-multifamily-property-market/
A new law i.e., the Unlawful Entry on Premises Bill is set to replace our current Trespass Act. The difficulty with such legislation is that the SAP simply does not have the capacity to enforce minor infringements. The legislation is worth a read in that it deals with signage that should be erected at entry points to a property which prohibit access or regulate usage.
The Expropriation Bill is set to be challenged in the Constitutional Court by Agri SA, if passed in its current form.
o Loos (FNB) commented recently that the Western Cape is on a very different trajectory to other provinces, property-wise. Semigration, owing to an increasingly troubled Gauteng economy, is starting to bite.
o At the same time In East London and Gqeberha have recorded their highest level of residential sales in 10 years.
The Landbank is still in the doldrums, reportedly operating at suboptimal levels. Yawn.
Newsworthy is a report by News24 that owners of non-residential buildings are compelled to have obtained an Energy Performing Certificate by 7 December this year. This legislation applies to privately-owned buildings of more than 2000 m².
Whilst on the tangent of state performance; a wonderful headline attracted my attention: State-proofing SA’s commercial real estate industry. The article deals with what is fashionably called challenges such as failing services, increasing property taxes to fund dysfunctional local authorities and the possibility of recurring riots. In essence, the writer calls for collaboration within communities.
How not to amend management rules by a body corporate: http://www.saflii.org.za/za/cases/ZAKZDHC/2022/42.html
And finally: statistics on the efficacy of estate agents, albeit in America, which will not gladden the heart of any agent: https://www.atlantafed.org/-/media/documents/research/publications/wp/2022/09/29/11–estimating-value-added-by-real-estate-agents.pdf
There is much conflicting noise on our economy: Goldman Sachs sees a rosy outlook for our financial situation; our Reserve Bank says that we are doing fiscally well. At the same time the OECD has downgraded our GDP growth for this year to 1.7% and that for next year to 1.1%.
Even worse, we are being left behind by our neighbours: the World Bank expects the SADC economy to grow by 3.3% this year.
The Rand exchange rate has been performing dismally, summarised by the following:
Eskom is, as has become the norm, largely bad news: the following graph illustrates where we are now:
There is little earth-shaking business news. Some interesting snippets are:
· The WAYS (I am aware that these are not the same institutions) are in trouble: Metrorail Gauteng experienced power outages owing to outstanding Eskom payments. When it was announced that Transnet was striking, and that management had declared force majeure, my first impression was so what, judging by road traffic, Transnet is hardly transporting anything of late except minerals. The fact, however, is that if our ports close or experience delays (consider the lack of jet fuel in Cape Town lately) the effect on our economy can be quite severe. Transnet woes have reportedly cost our country R50bn in lost mining revenue only.
· Fronting to escape BEE is well known – the difficulty is that our BBBEE commission’s handling of such cases is hardly encouraging: https://www.golegal.co.za/fronting-bbbee-commission/
· On a more encouraging note, Capitec is going from strength to strength with expectations being disappointed by an only 17% increase in headline earnings to date.
· SAA was punished by the revocation of several of its permits, owing to its failure to service the routes involved. It is now reported that it now needs another 20 aircraft… Eish– the fact is that this state entity is deadbeat. Whilst on this topic: concerns have been raised on the availability of aircraft seats in the coming festive season. Book now.
· UCT, said to be our top university, lost much of its senior management team over the past four years. Its internal relations are described as toxic with accusations of racism and claims of cover-ups et cetera. Whatever.
You must have noticed that more scholars seem to achieve distinctions of late then when you were at school – in my day (said with a distinct quaver) a C was the average grade: this week past I asked a retired school principal whether this was true – he said yes. The following gives some indication of why this trend occurs: https://www.thecrimson.com/article/2022/10/3/barton-grade-inflation/
A week ago, perchance, I drove past the Union buildings in Pretoria: the main road going up sports numerous old fence-breaks, collapses of the underlying brick foundations and so on. That the centre of governance of our country is so neglected and that those who work there does not notice, is scandalous. But then, South Africa is not great on maintenance generally. Public Works has seemingly disappeared, and government buildings have become increasingly run down.
Son no 2 is about to get married. He needs documents from our Department of the Interior and, on application, is told that this may take 6 to 12 months. So, postponing a marriage that long just for a piece of paper is a problem – what to do? I am reliably informed that if one pays R6k to an “agent” the wait is only 2 months… Go figure. Oh yes – in Switzerland this document takes a day to produce.
Judges, from time to time, are confronted with cases in which the supernatural plays a central part and, if the judge were to accept that belief, I, for one, would have serious reservations about his/her ability to serve as such. I chanced upon a case named Stambovsky v. Ackley in which an American court had to decide on fraudulent misrepresentation in respect of a haunted house: https://en.wikipedia.org/wiki/Stambovsky_v._Ackley
“Never attribute to malevolence what is merely due to incompetence”
“The machinery of government is a vast series of interlocking hierarchies riddled through and through with incompetence.”
Peter (the author of the Peter principle)
I never said you were incompetent. Your work speaks for itself.
On our governance, Stidy is certainly most famous: