Daan Steenkamp's Snippets

This time of the year only politicians litigate…and little of importance happens. At the recent full-bench Pretoria hearing of the RAF woes, the CEO of the RAF said: “We are in a parlous state. The implosion of the RAF is imminent.” Yawn.

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A view articles did interest me:

  • ARD
    • a note by Rantsane, on the origin of arbitration law in South Africa, may be found at https://journals.assaf.org.za/index.php/per/article/view/8963/10607
    • the latest De Rebus ran an article by Mokoana on the survival of a dispute resolution clause where the underlying contract is cancelled, owing to fraud. Essentially fraud cuts through all contractual arrangements: ex turpi causa non oritur actio.
  • On estates: 
    • Parity of inheritance: if you die, is it fair to leave your estate to your children in equal shares? No; consider this (I exaggerate to illustrate): if you have a child who is 20 and another who is 1 year of age, the 20-year-old has had the benefit of an education which the other has not.
    • Jamneck ponders the ownership of an estate at the moment of death: pragmatically we have other examples of “floating ownership”. Take discretionary trusts: technically the trustees are managers and not owners. The heirs are not owners but have but a spes. This lacuna has not hindered the development of trust law at all. https://www.litnet.co.za/die-dominium-of-eiendomsreg-van-n-bestorwe-boedel-op-die-oomblik-van-die-erflater-se-dood/
  • Divorces are the staple of many general litigants: in S v K the Western Cape High Court found that a Regional Court may order unwilling parents to subject themselves for assessment, for the purpose of varying an existing order pertaining to the primary care and residence of minor children. Van der Merwe argues that this decision cannot be supported: http://www.derebus.org.za/do-regional-courts-have-jurisdiction-to-order-an-assessment-of-parties-by-an-expert-in-post-divorce-proceedings/

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Few practitioners are natural business developers – one wants to believe that your reputation will sell itself. Not so much, I know of at least one conveyancer who has made a fortune by being nice (buttressed by a daily visit and koek) to estate agents yet lacks basic conveyancing wherewithal. Do take a look at this article by Levycky on the topic: https://www.golegal.co.za/lawyers-business-development/  Of interest to me was her note on a hard sell: I had a partner who taught me this truth – if you convince a client to give you work, he will remain ever critical; a situation that will inevitably lead to the loss of that work and hard feelings to boot. One needs to service clients who want to send you work.

Economy 

The latest predictions for South Africa’s spend/income ratio are that a deficit of 15.7% to GDP will result in this financial year. This is a given, and not much can be done about this.

So, what do we look forward to?

FDI is down by 45% on the previous year (to be fair when must concede that direct investment globally is down by 42%) and we have shifted to third in line in Africa for the receipt of FDI, behind Egypt and Nigeria – an indication that the smart money is not necessarily betting on South Africa when it comes to African investments.

In terms of local investment, Nedbank brought out a write-up on capex which has very useful graphs (see below) and which show a downward trend in such expenditure in South Africa. This decline is especially noticeable from 2008 onwards and the determinants are well-known to us; Eskom, infrastructure, labour costs, policy uncertainty and poor service delivery et cetera.

This somewhat dire outlook is ameliorated somewhat by the prospect of an imminent modest financial recovery, but consensus holds that we need policy changes. For a government which does not have the gumption to go after its former leader gone rogue, let alone abandon sacred-cow policy, these appear a pipe dream.

https://www.nedbank.co.za/content/dam/nedbank/site-assets/AboutUs/Economics_Unit/Research/EconomicResearch/Nedbank_Capital_Expenditure_Project_Listing_Jan_2021.pdf

Business 

The fun news of the week is the Gamestop shorting debacle, in which Robyn-Hood reddits, gave the suits a snotklap: it appears okay when the suits do this to the little guys but not okay when the little guys dish it out to the suits. Whether this take is justified or not, one cannot escape the feeling that the legislation, which now wishes to protect us all (as I had insinuated, possibly the big guys and therefore by extension us) against the suits being taken to the cleaners, originates more from concern about the big guys than the little guys. A lucid explanation of the underlying requirements for such a situation to develop is provided by The Grumpy Economist, which is worth a read: https://johnhcochrane.blogspot.com/2021/01/gamestop-1999-deja-vu-all-over-again.html

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The IRR has said that Eskom is in a death spiral, and its ludicrous suggestion, that it wishes to punish its customers, who complied with its pleas to use less electricity, by getting them to pay for the solar panels that they bought out of their own pockets, is an indication of its desperation. 

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The latest De Rebus has quite a useful summary of restraint of trade provisions: http://www.derebus.org.za/the-restraint-of-trade-clause-and-entrepreneurs-in-contemporary-south-africa/

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News, which is not apparent, is that whilst all of us are obsessed with vaccinations, the Treasury is attempting to obtain guarantees against adverse fallout from the CV19 rollout from the supplier pharmaceuticals. I suspect that these attempts will not prevent us from going for a jab, but it does present an insight into what our government does to protect us.

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Openserve (Telkom as it was) has announced significant upgrades to its standard wholesale connectivity offerings at no additional charge. Great, but promises do not cut the mustard: in our area we have had two installations of fibre, one by Vox and the other by Openserve – neither works.

Property

Neither estate agents nor conveyancers involve themselves (with good reason) with property owners’ rates woes, post sale and transfer. In dysfunctional municipalities, such as ours, this is becoming a huge problem as cut-overs are late, wrong, and so on, resulting in untold frustrations as both purchaser and seller must physically queue to get this done. This, truly, is your worst dream come true – wear flat shoes and do not drink too much water before you go…

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I have always been fascinated by the public’s willingness to pay an eye-watering 7% of the value of sold property to the estate agent, who sells, yet begrudge a conveyancing fee of less than 1% of the value for the conveyancer, who transfers the property. In fact, I am occasionally offended by an estate agent who asks me for a fee concession but does not do the same in his commission. Morbid fascination aside, there are some 46,000 estate agents in South Africa and some 27,000 attorneys of whom probably 10% (??) are conveyancers. One conveyancer will therefore service several agencies and one can understand, but probably not condone, the high fees paid to estate agents, given that an estate agent’s gained client does not equal a sale, whilst conveyancers’ instructions virtually always translate into a transaction. Seller clients have the right to nominate the transferring conveyancer, but invariably the estate agent’s recommendation prevails. The result is therefore that some conveyancers service several estate agencies which translates into a steady flow of work for the conveyancer but a much slower sale-rate per agent, necessitating a higher fee. One alternative of saving on estate agents’ fees, which punts itself as a genius method (sic) to save on agency fees, may be found at https://insurance.expertsinmoney.com/online-real-estate-za. I tried the site but have had no response from the agents – the genius method appears, on the face of it, to be little more than a lead generator.

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The news of the week is that the EAAB is, again, behind in issuing Fidelity Fund Certificates to estate agents, without which, they are not allowed to trade. Rebosa has dragged the EAAB to court to force it to issue outstanding certificates: its CEO says that it has established a task team to look into the matter so that they will not be a repeat of this issue: the fact is this promise was first made in 2017 and Rebosa’s unhappiness is understandable.

Quotable

Human diversity makes tolerance more than a virtue, it makes it a requirement for survival.

René Dubos

Comment

A martyr, my ass! Political analysts have long predicted a, from my point of view at least, long awaited rift in the broad church of the ANC. Its decision, on the erstwhile Nummawan flouting a court order, in true ponderous ANC consultative (it only consults with those it wants to) style, is awaited with bated breath and some cynicism. The fact is that the ANC decision will be a bellwether of its take on our constitutional order. Pragmatically speaking, I would be surprised if it takes a firm stand either way; damned if it does and damned if it does not. I would guess that Mr Magashule’s approach, that Mr Zuma is his own man, is eminently preferable. The fact that elsewhere in the world, the failure of a high-profile leader, ignoring court orders, would lead to immediate suspension, will probably be conveniently ignored. 

Another telling blow to our (and that of many other countries i.e., the USA) style of (mis-) governance, understood by some and not by most, is the criticism levelled at party politics and the role of a chief whip: once MPs vote according to party allegiance, and not by conscience (okay, politicians right?), oversight is neutered, and the table is set for control by elites.

Lighten up: on nightmares

Who’s that man who stands on his tractor shouting the end is nigh?

Oh yeah, Farmer Geddon.

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I had a nightmare last night.

I dreamed I was Dolly Parton’s baby, and she was bottle feeding me.

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Daan Steenkamp Attorneys
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