Daan Steenkamp's Snippets

News:

  • The NPA, this week, announced that it would be setting up a specialist unit to deal with apartheid-era atrocities. Sure – this is what was implied when the Truth and Reconciliation hearings were held – confess and come clean or be held accountable. The difficulty with this decision is, of course, that the NPA will only now be investigating matters which are virtually 30 years old, if not older. As things stand, that entity is unable to fulfil its daily mandate as a result of lack of capacity, resources and the like – take for instance the pending charges against Nummawan. Taking on more sounds good but will probably deliver little other than feel-good.
  • A leading South African practice has been taken on by a client, who was accepted as client by it and which practice, she alleges, must have known that it acted also for the other party. The firm denies that it was on the panel of the opposite party and says that it withdrew for reasons unrelated to this issue. You can follow the saga on IOL.
  • Judge Raymond Zondo has been appointed acting Chief Justice, Concourt.
  • “Courts are not above criticism. Legal commentators, the media, academics, and members of the public criticize judgments and court rulings on an almost daily basis. In that sense, courts can rightly claim that they are constantly held up to public account.    No judge, indeed, no person, whatever his or her station is above scrutiny. Our concern in this case, however, is to draw a judicial line in the sand. We have set out in some detail the criticisms levelled against us. Our primary concern however, is the baseless criticism levelled, in the last communication of Mr de Beer and the LFN, against the President of this Court, the deplorable denigration of the Court, and the generalised contempt displayed towards all our colleagues, unconnected though they are to this case. We are concerned too about the scurrilous insults, set out in the communications referred to above, directed at those who serve in the Registrar’s office
  • Mediate or litigate? https://www.golegal.co.za/mediate-litigate-dispute/

The Constitutional Court has most recently warned that unjustifiable defamatory and scurrilous utterances against judicial officers will not be tolerated.”

Our appellate division:  http://www.saflii.org.za/za/cases/ZASCA/2021/95.html

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Hard news:

Economics

C Ryan: ”… the JSE Top 40, in red, looks decidedly pedestrian against the S&P 500, which returned 278% over 10 years against the Top 40’s 28.3%.”

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Our Reserve Bank governor held, a week-and-a-half ago, that there is a case for lowering the banks inflation target range. This has elicited a response from business that the Reserve Bank policy is not transparent and predictable. I gather that Reserve Bank policy is not always supported by the information that it makes public. Fun.

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The Prez has said that we should not worry and that our SOEs will still be used for uplifting the populace. I question this for two reasons:

  • the employment, within SOEs, of those not best suited, has contributed to their well-publicised financial demise; and
  • if forced to draw in the private sector to revitalise an SOE, I am not sure that the continued non-efficient conduct of such an enterprise will be tolerated by those with skin in the game.

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Our (uniquely South African??) difficulty is that we tolerate non-compliance in the name of giving a hand-up: take for instance a suggestion by Gobodo, our first black female chartered accountant who, this week, called on the Reserve Bank to relax its requirements for new banking licences in order to make it easier to start a black bank: evidence of remarkable lack of comprehension of why compliance rules for banks exist. Seriously: if bank rules exist for public protection, would black customers (making the assumption that black persons would prefer to bank at a black bank) be less deserving of protection than whites?

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A graph that says it all: the CSIR has published statistics on the generation and use of electricity in South Africa, which is really worth looking at: https://researchspace.csir.co.za/dspace/bitstream/handle/10204/11865/CalitzWrightMarch2021a.pdf

Do take a look at the graph on page 16:

 Oh yes, Eskom will be upping its average charge-out rate by 17.8%, this year.

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On a less parochial take:

  • AfCFTA (African Continental Free Trade Agreement) is said hold the potential to lift many millions of Africans out of poverty by introducing significant policy reforms and trade facilitation measures, that will make African companies more competitive.
  • Windows 10 is set to be replaced by Windows 11 later this year. What tickled my fancy was its promise : “to provide a calm and creative space where I can pursue my passions through a fresh experience.” I can’t wait!

Business

A young equal partner some years past would, whenever we encountered headwinds, announce that he was “considering his options” – great backing from someone promoted beyond his ability. On an associated, but not similar tack, The Great Resignation so designated by an overseas professor, has been popularised in the press. Reports hold that some 41% of workers are considering their options by changing professions this year – driven by toxic management/workplace culture. Take a look:

https://www.bbc.com/worklife/article/20210629-the-great-resignation-how-employers-drove-workers-to-quit

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A very interesting judgement, prompted by a gentleman named Alves, who bought a car in Lesotho, for use in South Africa and which car was seized by SARS, arguing that the vehicle was an import for which an import permit was required, came out this week. The essence of which is that if you own a vehicle, no matter where it was manufactured and if imported into the SACU area, you are free to drive it without hindrance anywhere in the common customs area. 

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Many employees are called upon to sign a non-compete/restraint clause as part of the employment conditions. The following article sets out the limits to which such agreement should be subject: https://bookbinderlaw.co.bw/should-you-sign-a-non-compete-clause-in-an-employment-contract/

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Another interesting case, that bears watching, is one brought by a former executive director of Dimension Data against that company: he served as executive chairman before discovering that other senior executive directors were earning more than he was. He is now suing them for some R261m on the basis that he was discriminated against (he is black). One of the side issues as that, on his attorneys calling for minutes of the remuneration committee meetings, it turned out that, after takeover by a Japanese company, no minutes were kept. Board committees may function without keeping minutes, but not doing so is not clever.

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Our perennially broke SABC is set to be funded by a household levy which would include, TVs, smartphones and computers and will force the private sector to collect these on behalf of the state.

Yep, so much for effective central state control.

Whilst on this rant; a similar situation has developed around vaccination – private sector vaccination sites are gearing up and could vaccinate another 28,000 people a day.

Property

As a would-be attorney, my principal, a Jew, impressed upon me the time-honoured fundamentals of investment: property (for stability), shares (for growth) and transportable movables (think diamonds, Kruger Rands and so on, for flight/encashment). Alas shares in listed property, have been shown to be vulnerable in stressful times. An example of societal change on property may be seen in the Pietermaritzburg suburb known as Scotsville: the large-scale advent of students in the area has devalued properties there by probably half.

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Are you declaring your rental income? SARS has issued a warning to property owners in this regard, although I confess that I am unsure how its inspectors would be aware of one’s letting of a cottage?

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If residential rentals interest you, take a look at the following: https://propertyprofessional.co.za/2021/07/02/has-residential-rental-building-markets-recovered/

Quotables

“It cannot and must not be that if we, the ANC leadership, are trapped in an organisational death wish, SA at large acts in a manner which allows that the macabre within the ANC visits immense disaster on our already suffering population and millions of others elsewhere in our region and continent.” Top

Mbeki

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The North Star of our constitutional order: “Our patron [Zuma] has never believed that he is above the law or the Constitution, the supreme law of the land. On the contrary, he has always insisted that he must be treated like every other citizen, and his rights to equal protection of the laws must be respected and protected.”

Jimmy Manyi, J Zuma Foundation

“The ANC is more important than the Constitution” and “the Constitution is only there to regulate matters.”

Jacob Zuma

Comment

Very generally, one of the principles of trust law is that one should not give ownership but withhold control, unless there is a very good reason therefor. An issue, brought about by the clash of cultures (Roman-Dutch descendants regard ownership as absolute – an overstatement – but still; the black settlers had no equivalent of this), is the unhappiness of dwellers on communal land within the Ingonyama Trust area. Rural residents, probably rightly so, are of opinion that they have been and are the holders of rights over the area that they occupy. The trust, technically, owns the land and certainly needs to both impose living standards and “taxes” on the occupants. In addition, the maintenance of a kingdom, within a democracy, is problematical. This has led to a call for democracy to solve land tenure rights in KZN – a conflation of the issues at hand. Irrespective of the political convenience, the withholding of ownership rights of rural residents, within traditional areas, will have to be addressed.

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Is the primary purpose of a commercial venture to maximise the profits of its shareholders? Perhaps not – greed is not necessarily good, and founds sociopathy. Perhaps tending one’s social garden, inclusion and the promotion of the welfare of all, produces better results? Judge for yourself: https://www.ted.com/talks/nick_hanauer_the_dirty_secret_of_capitalism_and_a_new_way_forward?

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The circus that is Jacob Zuma, is not over. The constitutionalists hold that he had flouted rules applicable to all and must pay the price of his disdain; the loyalists point to his sacrifice, and threaten war/death/civil unrest. Zuma’s once challenging statement, that he would rather go to jail than concede, is (as many other points of departure) no more and he says in his founding affidavit to the same court that sentenced him, that the court should exercise calmness and restraint and that he never intended to attract judicial ire. He now pleads ill-health (shades of Shabir), dignity, equality, ubuntu et cetera. Yet, he does not seek sympathy and remains unrepentant, and still regards his summons by Zondo as unconstitutional. He says that his imprisonment will not serve any constitutional value but would serve as a political statement of exemplary punishment. The insults that he slung might appear insulting, but were really just an expression of strong views against an oppressive system.

Drivel. The fact is that Mr Zuma has not come to terms with the fact that judges uphold our constitution, to which he, like all of us in this country, is subject. 

A cheering thought: imagine what fun Zuma’s lawyers must be having. If he succeeds in having the Concort extend sympathy, they will be vindicated. If not, I have little doubt they will be forever blamed for having given bad advice.

Lighten up (on political and other idiocy)

Ten to the dozen is an expression of being hurried. It could also apply to an American physician, named Tenpenny, who holds the view that vaccination (against CV19) will pop you. A watchdog group has classified her as one of the the disinformation dozen. Perhaps her opinion was formed in a hurry?

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“Our education is going to be free and compulsory. Compulsory means that you’re going to go to school by force. Whether you like it or not, you will go to school. If we find you in the streets of Soshanguve during school hours, ‘tsotsi, what do you want in the streets during school hours?’ We will put you in a van because education is free.”

Ntate Piet Mohlala

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“Aid should shift to investment. This will help countries stand on their own.”

Jacob Zuma

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“There’s no system that has worked successfully for Africans, except the Zimbabwean system.”

Julius Malema

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Contributed by:
Daan Steenkamp Attorneys
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