CONSTITUTIONAL by xiangpeng

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									                                                                                                           23/02/2010


                                     THE LAW SOCIETY           DIE PROKUREURSORDE
                                              OF THE           VAN DIE
                                 NORTHERN PROVINCES            NOORDELIKE PROVINSIES




                                          N    EWSFLASH         N    UUSFLITS




CONSTITUTIONAL
  COURT EXAMINES HARSHER SENTENCES FOR FORMER TRANSKEI
   The Constitutional Court has pondered whether the operation of legislation that applied only to the former Transkei – and
   which resulted in criminals there receiving different and harsher sentences to criminals sentenced elsewhere in the
   country for the same crimes – should continue. A Business Day report says two men – who were convicted under the
   Dangerous Weapons Act (Transkei) – were sentenced to six and five years in prison under this Act. The attack on the
   constitutionality hinged on the fact that section 4 of the Transkei Act only applied in the former Transkei and not the rest
   of SA, thus compromising the constitutional principle of equality. In her judgment, delivered in August last year, Judge
   Irma Schoeman had declared that the applicability of section 4 of the Dangerous Weapons Act (Transkei) was
   inconsistent with the Constitution and invalid.
   Full Business Day report



   COMPANY, COURTS SLAMMED FOR DRAGGING OUT EMPLOYEE’S CASE
   The Constitutional Court directed scathing remarks at mining company Billiton Aluminium and the Labour Courts
   yesterday for their roles in dragging out a labour dispute for almost nine years, says a report on the IoL site. It notes the
   CCMA and lawyers did not escape the judges' wrath either, with recently installed Judge Johan Froneman rejecting
   ‘systemic delays’ as the reason why sacked employee Ntokozo Khanyile has had to wait so long to hear whether he will
   be reinstated. ‘Systemic delay is not an impersonal, inevitable and independent force, it is simply a delay caused by the
   inaction of people within the labour dispute resolution process.’ The case centred on Khanyile being fired in 2001 after
   being a witness at the CCMA hearing of a colleague. The company fired him – it later admitted unfairly – because he
   disclosed information in the hearing that the company's rules considered confidential. In the course of his travails, he
   went through the CCMA twice, and heard Labour and Labour Appeals Court judgments that vacillated between
   reinstatement, which Khanyile wanted, and compensation, which the company sought. The company also unsuccessfully
   tried to get the SCA to overturn the reinstatement order before approaching the Constitutional Court. Froneman blamed
   the company for the delays in the case, saying it had refused to accept the reinstatement order. Wrapping up his
   judgment, Froneman said: ‘Systemic delay is often also caused by rich and powerful litigants who use their superior
   financial capabilities to take the review and appeal opportunities available to them to the very end in the hope of
   wearying out an opposing litigant who may be in a less advantageous financial position.’ Because Billiton conceded that
   its dismissal of Khanyile was unfair, it should have recognised that the reinstatement order was the proper remedy. The
   company's application to appeal the reinstatement order was dismissed.
   Full report on the IoL site



   GOVERNMENT TO REVIEW LAND RIGHTS ACT
   The government has conceded that its vision for rural development – as set out in the 2004 Communal Land Rights Act –
   is under review and may be repealed or substantially changed, says a Weekend Argus report. If the Act is scrapped, it
   may mean a radically reduced role for traditional leaders in administering rural land use, just as their status has been
   reconfirmed with a special government department. Rural Development Minister Gugile Nkwinti admitted in a
   Constitutional Court affidavit that he would abide by a ground-breaking High Court decision in November that declared
   15 key provisions of the Act invalid or unconstitutional, which was subsequently referred to the Constitutional Court for
   confirmation. Nkwinti said that the High Court decision made clear that ‘the Act in its present form needs to be reviewed’.
   He told the court that ‘the Act will either be repealed... or drastically amended’. Nkwinti admitted that because some
   sections of the Act were open to interpretation, it meant that the legislation could be seen as unconstitutional.
   Full Weekend Argus report (subscription needed)




                                                                                                                              1
CORPORATE
  TAX INCENTIVES NEEDED TO PROMOTE BEE – CONSULTANT
   Tax incentive schemes are needed to reward BEE compliant companies, according to Caird Consulting in a report in The
   Times. ‘Treasury, the DTI and the BEE Advisory Council should introduce a scheme that will incentivise companies to
   not only comply, but to better the targets contained in the numerous BEE scorecards,’ Caird's BEE compliance partner
   Paul Janisch is quoted as saying. The issues facing broad-based BEE was that the rewards for achieving targets were
   not realistic. ‘At present a company is only rewarded with a BEE score for complying – and there is no guarantee that
   public or private sector business will follow as a result,’ he said. The ‘big stick approach' tended to make companies
   focus more on compliance than transformation, which was needed to benefit those most marginalised.
   Full report in The Times



   COMPANIES MUST BE ENVIRONMENTALLY ACCOUNTABLE – STUDY
   A report in today’s issue of our companion product Legalbrief Environmental notes that a major unpublished study for the
   UN has found that the cost of pollution and other damage to the natural environment caused by the world’s biggest
   companies would wipe out more than one-third of their profits if they were held financially accountable. The report comes
   amid growing concern that no one is made to pay for most of the use, loss and damage of the environment, which is
   reaching crisis proportions in the form of pollution and the rapid loss of freshwater, fisheries and fertile soils. The study
   was commissioned by the UN-backed Principles for Responsible Investment initiative and the UN Environment
   Programme which jointly ordered a report into the activities of the 3 000 biggest public companies in the world. It comes
   ahead of another huge UN study, due out later this year, which will attempt to put a price on such global environmental
   damage, and suggest ways to prevent it. Legalbrief Environmental is delivered to subscribers every Tuesday morning
   and focuses on environmental law and justice, development law and general news relating to the environment. It is a
   must-read publication for specialists in environmental, conservation and developmental work


LAND CLAIMS
  FAILURE OF WILLING BUYER, WILLING SELLER LEADS TO NEW POLICY
   The government plans to introduce a new draft land reform policy this year that will focus on acquiring land more cheaply
   from whites and securing tenure rights for millions of landless blacks living on farms or peri-urban informal settlements.
   Business Day reports that the announcement – made by Rural Development and Land Reform Minister Gugile Nkwinti –
   contained details for the first time of how the government plans to implement a review of land policy launched in 2005. As
   previously reported in Legalbrief Today, a new green paper would be submitted to Cabinet for approval by next month
   before going to Parliament. This would be used as a framework for a new tenure reform law the department wants
   passed by March 2012. The review will include changes to the willing buyer, willing seller model, which the department
   has blamed for escalating land prices and an inability to speed up the reforms. The report says a new expropriation Bill
   that makes it easier for the government to force farmers to sell their properties for land reforms will be tabled later this
   year.
   Full Business Day report



   FARMERS GROUPS WANT MARKET-VALUE COMPENSATION
   Civil society groups AfriForum and AgriSA want farmers to be able to sustain their livelihood through adequate
   compensation after their farms have been expropriated, says a Cape Argus report. The two groups said that protective
   and fair measures should be in the revised draft of the Land Expropriation Bill. They added they were not opposed to the
   Bill being brought back to Parliament, but wanted certain sections of it removed. They had opposed the original draft
   because it empowered the state to expropriate farms in the public interest and to pay less than market value. However,
   the two organisations have now expressed optimism after Minister of Rural Development and Land Reform Gugile
   Nkwinti said the government would re-submit the Bill to Parliament soon. According to the report, AfriForum CEO Kallie
   Kriel said they would back the revised Bill if it addressed their concerns, and AgriSA president Johannes Möller said they
   wanted farmers to be compensated at market value for their expropriated land.
   Full Cape Argus report (subscription needed)



LABOUR
  FOREIGNERS GET THE CHOP IN AMENDED EQUITY ACT
   The Department of Labour has completed draft legislation altering the definition of ‘designated groups’ identified in the
   Employment Equity Act. According to Rapport, the Bill is expected to be passed by the end of the year. In terms of the
   amendment, no foreigner will be allowed to benefit from BEE. Labour Department director-general Jimmy Manyi told
   Parliament that Labour Minister Membathisi Mdladlana will present the Bill to the Cabinet soon. The proposed
   amendment describes ‘foreign citizens’ as ‘people who are not SA citizens, or became citizens after 27 April 1994, and
   their descendents.’ DA MP Ian Ollis said it was ‘the first step to healthier affirmative action’, but added one would have to
   wait for the final wording of the Bill.
   Full report in Rapport



                                                                                                                              2
LEGISLATION
  LAWYER HITS BACK AT MINES’ ‘FISHING EXPEDITION’
   A request by several mines, including Anglo Platinum, to get more details on allegations of unlawful conduct was
   ‘incompetent’, human rights lawyer Richard Spoor told the North Gauteng High Court yesterday. Acting in his own
   defence, Spoor argued the mining companies already had all the information before them to prepare for trial in a
   defamation case against him. ‘I have furnished them with all the particulars they reasonably need... the minute detail is
   not reasonably required.’ In an interlocutory application, lawyers for several mines have asked the court to grant an order
   forcing Spoor to reveal the identities and the events which he claims prove the mines acted unlawfully. Spoor faces
   defamation charges for comments he made to the media that the companies were ‘thugs and bullies’ who employed
   ‘shyster lawyers’ to facilitate agreements with the communities to access land to their detriment, and for the mines'
   commercial gain. Spoor argued the persistent request for all the details was merely a tactic to break him down. Spoor
   also argued the requests constituted evidence that would be brought before the court and therefore the plaintiff's should
   not be privy to them beforehand. ‘Their motive is (not) to prepare for the case but restrict me, to confine me in order to
   limit their own embarrassment when the case comes to court.’
   Full report on the Fin24.com site



   COMPANIES ACT LIKELY TO BE DELAYED – ENGELBRECHT
   Lindie Engelbrecht, outgoing CEO of the Institute of Directors (IoD), is ‘cautiously optimistic’ that the new Companies Act
   will not come into force this year, says a Fin24.com report. She says the alterations to the Act published in December
   deal with spelling and grammar errors, but neglects to say what these are or how they will be corrected. More than 200
   pages of regulations have also been published in an effort to correct errors of principle in the legislation. She is also
   extremely sceptical about the current Act. For the past five years government has been asked to do a cost analysis on
   the effect of new legislation, but this has not been done, she says. She adds that there are enormous problems with the
   practical application of the Act. One important ‘error’ is that it is in conflict with other legislation, such as the Competition
   Act and the Consumer Protection Act. It was written in total isolation from any other legislation, she is reported to have
   said.
   Full Fin24.com report



   MEC WANTS PROPERTY RATES SYSTEM CHANGED
   Western Cape Local Government MEC Anton Bredell has called for changes to the system used to determine property
   rates. A Cape Times report says this was after a Cape Town official was quoted as saying owners should ‘move out’ of
   richer areas if they could not afford rates and taxes. Bredell said the market value system was ‘problematic and unfair’
   and needed to be rectified. Property owners are taxed based on the market value of their property. ‘What is a market-
   related price, what is a willing buyer and seller and what if you are forced to sell your house because you cannot afford to
   pay the rates and taxes,’ asked Bredell. He said many owners were paying high rates for improvements to their homes.
   ‘The system punishes people and discourages them from making home improvements as they would have to pay higher
   rates and taxes for the rest of their lives,’ he said.
   Full Cape Times report (subscription needed)



   CLARITY BROUGHT TO MAGISTRATES’ DEBT REVIEW ROLES
   A landmark North Gauteng High Court judgment on provisions of the National Credit Act (NCA) has ruled that
   magistrates have a judicial role and not an administrative one when dealing with ‘over-indebtedness’ applications. In an
   analysis on the Moneyweb site, Gareth Courtois, of Shepstone & Wylie Attorneys, looks at the case of the National
   Credit Regulator v Nedbank Limited & Others 19638/2008, which sought clarity on the interpretation of Part D of Chapter
   4 of the NCA that relates to the debt review process which, he says, is causing ‘mayhem’ in Magistrate’s Courts. Judge
   du Plessis ruled that magistrates are obliged to hear each case and draw their own conclusions. Courtois says this
   overturns the popular view held by debt counsellors that magistrates are administrators who should simply rubber stamp
   their applications and that they have no discretion to refuse an application. Du Plessis also ruled that that the debt review
   application process must follow the Magistrate Court Rules where the NCA is not clear on procedure. On the issue of
   where the application should be heard, the court concluded that jurisdiction lay where the consumer resides, carries on
   business or is employed – and not where the debt counsellor carries on business. Courtois says this ruling will result in
   the jurisdiction of many applications falling away and could be used as grounds to set aside the debt reviews.
   Full Moneyweb report / Judgment (PDF file)



   MBOWENI’S REMARKS ‘REASONABLE’ – LAWYER
   People not discriminated against found it difficult to understand the sensitivity of victims of discrimination, former Reserve
   Bank Governor Tito Mboweni’s lawyer has told the Pretoria Equality Court. A report in The Citizen says Mario Pretorius
   has taken Mboweni to court over comments he made during an AGM, contending that they amounted to hate speech
   and were unfair and discriminatory. Mboweni’s lawyer Geoff Budlender asked Pretorius: ‘Can you understand you
   offended him by telling him how to dismiss a point of order?’ Pretorius replied: ‘No, sir’, adding that he did not believe the
   manner in which he spoke to Mboweni was in any way patronising. Mboweni’s lawyer contends that Pretorius ‘heckled
   and lectured’ him on how to chair a meeting and told the court that this was the way in which whites used to address
   black people under apartheid. ‘The response was reasonable,’ Budlender submitted, contending that Pretorius was ‘rude
   and offensive’.
   Full report in The Citizen

                                                                                                                                  3
   WORLD CUP LIQUOR LICENCE PLAN UNDER FIRE
   The government may be taken on in court if it adopts what The Mercury describes as draconian draft legislation aimed at
   controlling the sale and distribution of liquor during the World Cup. The report says establishments showing matches
   would have to fork out R50 000 for a special liquor licence and hand over 2% of their turnover to the national and
   provincial liquor boards ‘to run programmes on the effect of alcohol abuse’. Details of the proposed World Cup liquor
   policy were set out in the Government Gazette of January 18. The deadline for comments lapsed yesterday, but it is
   unclear how many people were aware of the scope of the legislation. Lawyer Marius Blom, an expert on liquor legislation,
   told the paper the Bill was contrary to the Constitution and exceeded the department's powers. In a letter to the Gauteng
   Liquor Board this week, Blom said he believed that what was envisaged in the policy was simply not possible. Under the
   proposed provisions, any place used to screen a match, other than in a private home, would be regarded as a public
   viewing area and would require the special licence.
   Full report in The Mercury (subscription needed)



   SCA CLARIFIES DEDUCTIONS FOR TAX LOSSES ON SHARES
   SARS may be faced by claims for income tax deductions by taxpayers who purchased shares as long-term investments
   but subsequently sold the shares at a loss. This is due to a recent SCA judgment, according to Barry Garven and
   Monique Jefferson of Bowman Gilfillan in an analysis on the Legalbrief Today site. At issue was the refusal by SARS to
   allow the loss as a deduction, partly on a technical interpretation of the trading stock provisions in the Income Tax Act. In
   1994, Anglovaal Mining, the taxpayer, acquired shares in National Brands. Five years later, during the taxpayer's 1999
   year of assessment, these shares were sold at a loss of R159.7m. The taxpayer claimed an income tax deduction in its
   1999 tax return equal to the loss, which SARS subsequently disallowed. The SCA found that the Tax Court had erred in
   concluding that Anglovaal had the intention of holding the shares as a capital investment. It judged that the shares were
   held as trading stock, which has provided clarity on the interpretation of the Act's section 22. Garven and Jefferson say
   the critical SCA-derived lesson for taxpayers lies in the Tax Court's initial finding that expenditure incurred to acquire
   trading stock in one year of assessment cannot be claimed for the first time as a deduction in another year of
   assessment. They note that this finding was overruled by the SCA on appeal.
   Full analysis on the Legalbrief Today site


   SCA REMOVES INTRAMED LIQUIDATORS
   The SCA has upheld an appeal by Standard Bank and ordered the removal of Basil Nel and Michael de Villiers as joint
   final liquidators of Intramed, a subsidiary of Macmed Healthcare Limited which collapsed 10 years ago. A report in
   Business Report says the liquidations of Macmed and Intramed have significant financial importance for Standard Bank.
   Court papers indicate that a liquidation account of Intramed showed assets exceeding R170m, but that a later liquidation
   account showed liabilities exceeding R230m. Standard Bank is a judgment creditor of Intramed in the amount of more
   than R107m. The bank is also a major creditor of Macmed and a number of its subsidiaries. The report says the views of
   Standard Bank, Nel and De Villiers differed on a claim of R325m by Macmed against Intramed. Standard Bank argued –
   among other things – that Nel and De Villiers failed to use established mechanisms to ensure the proper administration
   of estates in liquidation. The SCA held that Standard Bank's complaints were justified.
   Full report in Business Report /See also a Sake24 report



   BANKS UNCOVER HOME LOAN FRAUD SCHEME
   A major home loan fraud scheme has been unveiled in an ABSA application in the North Gauteng High Court to take
   back more than 100 homes from ‘non-existent or unwitting’ owners. According to Rapport at least two of the major banks
   have been defrauded, despite the existence of legislation such as the National Credit Act and FICA. Absa registered 129
   bonds worth more than R193m before the fraud was detected. Although ‘most, if not all of the supporting documents’
   were false, bond originators processed the applications, Absa approved the loans, two law firms did the conveyancing
   and the Deeds Office registered the properties in the names of people who either do not exist or did not know they had
   bonds and properties. Standard Bank has brought at least five similar applications and may bring more. Asked how Absa
   could award a home loan of more than R2m to a gardener living in an informal settlement without his knowledge while
   complying with FICA and the NCA, spokesperson Patrick Wadula said the underpinning modus operandi of the
   fraudulent scheme was to circumvent safety measures and present the loan applicants as something they were not.
   Full report in Rapport



PRACTICE
  ATTORNEY SETS UP FREE LEGAL SERVICE
   Attorney Odette Geldenhuys has established a free legal service, notes a report in The Times. Her organisation,
   ProBono.Org, will be launched this week in the old women's jail on Constitution Hill, Braamfontein. Geldenhuys (50)
   deals with poor people who come to her for help with cases that range from domestic violence and child maintenance to
   evictions and child custody. She then matches the clients with the specialist lawyers who have donated time to her
   organisation. Geldenhuys previously worked for the Legal Resources Centre and the Legal Aid Board.
   Full report in The Times




                                                                                                                              4
   BOWMAN GILFILLAN APPOINTMENT
   Lionel Shawe has been appointed a director at Bowman Gilfillan, heading the banking and finance team, notes a
   Business Times report. Shawe has expertise in aircraft finance, acquisition and leveraged finance, preference share
   funding, securitisation, capital markets and debt-restructuring transactions.
   Full Business Times report



   SOME LAW GRADUATES CAN BARELY READ – EXPERTS
   Some law graduates have been so badly educated that they can barely count, operate a computer, or read and write in
   English. That, according to a report in The Times, is what some experts said in support of an investigation by the Council
   on Higher Education (CHE) on the effectiveness of the Bachelor of Law degree, which, they say, does not prepare
   students for the profession's demands. The four-year LLB degree previously took five years to complete, but 12 years
   ago the Department of Justice reduced it to four years to accommodate previously disadvantaged matrics, allowing them
   to complete the course and save a year's tuition fees. Nic Swart, director of Legal Education and Development at the
   Law Society of SA (LSSA), is quoted as saying the situation was ‘a great concern’. ‘There are certainly graduates who
   come out prepared for practice, but the greatest concern is that many have extreme difficulty in writing properly. One of
   our tasks is to teach students to draft legal documents, but we find that they struggle to do that in English,’ he said. ‘We
   were also commissioned by the University of Cape Town to do research with their students, and we found that 70% of
   them couldn't calculate even simple tasks. They emerged without the ability to research legal documents or use a
   computer and the Internet.’
   Full report in The Times

   The Law Society has welcomed the CHE investigation. ‘The LSSA’s                                     discussions with
   government and with the university law deans for the past four years regarding a review of the LLB degree have been
   premised on concerns about the declining quality of law graduates entering the attorneys’ profession,’ say LSSA co-
   chairpersons Thoba Poyo-Dlwati and Henri van Rooyen. They add: ‘We owe it to the public to ensure that they receive
   the best professional advice and efficient and professional service from adequately trained and well-equipped legal
   practitioners.’
   LSSA press release



GENERAL
  PAWNBROKERS MUST COMPLY WITH CREDIT ACT, SAYS REGULATOR
   All pawnbrokers must comply with the requirements of the National Credit Act (NCA) in general – and with those that
   specifically relate to pawn transactions – says a report on the Legalbrief Today site. ‘Pawnbrokers fall within the NCA
   definition of a credit provider as they are in the business of providing credit and lending,’ says Peter Setou, senior
   manager of Education and Strategy at the National Credit Regulator (NCR). Pawn transactions are classified as ‘small’
   credit agreements under the NCA, and interest rates charged are regulated, as are pre-agreement statements and
   quotations. ‘Pawnbrokers that have at least 100 agreements on their books – or a total outstanding principal debt owed
   to them under pawn agreements exceeding R500 000 – must register with the NCR,’ Setou added.
   Full report on the Legalbrief Today site


   THE CRIMINAL JUSTICE SECTOR HAS BEEN GIVEN A LIFT
   The three departments that make up the sector – Justice, Police and Correctional Services – received increased
   allocations of almost 19%. Business Day reports that Justice gets an increase of about R600m, Police will get almost
   R5bn more and correctional services R1.3bn. The budget review notes that ‘recent trends indicate house and business
   robberies have increased and the additional funds are provided to bring down crime levels, clear court backlogs, reduce
   parole violations and integrate processes in the criminal justice system’. Over the next three years R680m will be spent
   on expanding the detective services, crime intelligence and visible policing. The so-called Hawks get a further R150m to
   ‘intensify the fight against organised crime’. The Presidency document titled ‘Measurable Performance and Accountable
   Delivery’ says a decrease in court backlogs from 337 459 to 22 100 and a fall in parole violations from 37 608 to 22 200
   is desirable. The report notes an amount of R230m will also be made available to the Department of Justice and Legal
   Aid SA over the next three years for ‘the appointment of more public defenders, family advocates, family counsellors,
   sexual offences court officers and court clerks’.
   Full Business Day report



   THE MINING ROYALTIES LEVY, POSTPONED DUE TO THE RECESSION LAST
   YEAR, WILL KICK IN NEXT MONTH.
   ‘The introduction of mining royalties was postponed for a year due to the recession and will be levied on minerals
   disposed of or exported from 1 March 2010,’ the Treasury said, according to a Mail & Guardian Online report. However,
   the recession has also meant there were no changes to corporate tax, a category that will continue to be under pressure
   in 2010/11 due to the effects of the recession.
   Full Mail & Guardian Online report




                                                                                                                             5
GCB COMPLAINS TO NGCOBO OVER OUTSTANDING JUDGMENTS
The judiciary is again under scrutiny – this time for failing to deliver a long list of outstanding judgments, some of which
have been pending for 10 years. A Cape Argus report says this has prompted the General Council of the Bar (GCB) to
lodge a complaint with Chief Justice Sandile Ngcobo, requesting that the issue be addressed and that incompetent
judges ‘be persuaded to do the right thing before we have another public spectacle involving the judiciary’. GCB
chairperson Patrick Mtshaulana SC asked that the matter receive urgent attention for the sake of the judiciary and the
legal profession. ‘The judiciary is vulnerable and criticism of this nature may lower its image in the eyes of the public,’ he
said. Ngcobo responded that he was aware of cases where there were outstanding judgments and that these were
reported to the JSC. According to the report, he asked the GCB to furnish him with details of all cases in which there
were outstanding judgments and to include the names of the responsible judges as well as whether the issue had been
reported to the head of the court.
Full Cape Argus report

Two cases in particular have been affected by the delays, notes                            the GCB. In the first case –
heard in 2007 – four Eastern Cape men approached the North Gauteng High Court to challenge legislation which
stipulated that old-age pensions were only payable to men from the age of 65. The men argued that it was
unconstitutional and outdated and that they should receive the same treatment as their female counterparts, says a Cape
Argus report. The second case was one which the Johannesburg Legal Resources Centre took to the same court on
behalf of Florence Mahlangu, who asked the court to declare certain regulations of the Child Care Grant Act
unconstitutional because it disqualified children of a certain age from receiving grants.
Full Cape Argus report (subscription needed)



GCB RECONSIDERS LEGAL CHALLENGE TO MPSHE APPOINTMENT
The General Council of the Bar (GCB) is reconsidering mounting a legal challenge to the appointment of former acting
Director of Public Prosecutions Mokotedi Mpshe as an acting judge in the North West High Court. A Mail & Guardian
Online report says this comes after the announcement by Justice Minister Jeff Radebe that Mpshe had resigned from the
NPA. Chairperson of the GCB Patrick Mtshaulana said discussions on the matter had been circulated to its exco
members. ‘I think we need legal advice. We've heard Mpshe is no longer a state employee as he is believed to have
resigned, so a legal challenge might be academic.’ According to the report, he said it was ‘pretty unusual’ for an acting
judge to preside for as long as six months, the period for which he had heard Mpshe was appointed. ‘Acting judges are
normally appointed for one term, which is two or two-and-a-half months, as they are usually working lawyers,’ he is
reported to have said.
Full Mail & Guardian Online report / GCB statement

Mpshe's resignation ‘seems to be an admission… that there is a problem with an employee of the
NPA acting as a judge’, suggests constitutional law expert Pierre de Vos. According to a Cape Argus report, he said ‘it
clearly affects the independence of the judiciary because you are required to serve two masters at the same time’.
Full Cape Argus report (subscription needed)



PRISONERS RAKE IN MONEY FOR CORRECTIONAL SERVICES
A report in The Citizen says that prisoners are expected to earn the Department of Correctional Services R136.7m in
2009/10. ‘Revenue grew from R100m in 2006/07, to R136.7m in 2009/10,’ according to the 2010 Estimates of National
Expenditure, tabled by Finance Minister Pravin Gordhan yesterday. The document says revenue from prisoners –
expected to reach R161m in 2012/13 – is mostly generated from selling products made in correctional centres
workshops, hiring out offender labour, and letting accommodation to personnel. A portion of the revenue is paid to
inmates as a gratuity.
Full report in The Citizen



SHEBEEN OWNERS SEEK LIQUOR ACT LEEWAY
Shebeen owners in the Western Cape have requested some leeway on the implementation of the provincial Liquor Act
scheduled for April. The Western Cape Shebeen Association met Premier Helen Zille and members of her Cabinet to
discuss the issue, Die Burger reports. Mauritz Rossouw, of the association, said his association had recommended
transitional arrangements for qualifying shebeen owners. A panel consisting of the police, community policing forums,
local councillors and the Department of Human Settlements will consider candidates.
Full report in Die Burger




                                                                                                                            6
RADEBE DEFENDS MPSHE, SLAMS LAWYERS
Justice Minister Jeff Radebe has vigorously defended his appointment of Mokotedi Mpshe as an acting judge in the
North West High Court, rejecting suggestions that the former NPA head was being given a place on the Bench as a
reward for getting President Jacob Zuma off the corruption hook, writes Legalbrief. Emphasising his decision stood,
Radebe accused the Law Society of SA (LSSA) and the General Council of the Bar (GCB) of waging a ‘politically
motivated’ campaign against the appointment. Acting appointments to the Bench were not as a matter of law preceded
by any nomination process, he pointed out, adding it was his prerogative to appoint acting judges. The need for the
Minister to consult with the Judge President when making an acting appointment sought to ensure the Judge President's
views were considered in making such an appointment. There was no reason to believe Mpshe would have the
propensity to take the side of the state because he had worked for the NPA. Mpshe was also no longer in the employ of
the NPA. ‘There is nothing exceptional and therefore unbecoming about his appointment. This is yet another politically
motivated complaint disguised as pursuit of the principle of judicial independence, the rule of law, and related principles,’
Radebe said. He added Mpshe was an honourable person who based his decisions on the law. Asked on what he based
his statement that it was a politically motivated complaint, Radebe said instead of dealing directly with him on the matter,
the LSSA and GCB were using the media. Their going on a ‘media campaign’ indicated it was politically motivated, he
said.
Full report on the News24 site

Apparently Mpshe asked Radebe to find him a job as an acting judge. Radebe                                   admitted
yesterday this prompted him to investigate if any acting appointments were available, notes Business Day. Radebe said
Mpshe had approached him for an acting post, and he then initiated the process to find an acting vacancy in one of the
court divisions that Mpshe preferred. GCB chairman Patrick Mtshaulana said he would comment on Radebe’s
statements after discussion with his executive, ‘because of the seriousness of the allegations’.
Full Business Day report
See also a Beeld report

The legal profession has a special responsibility to take this matter further, according to
a commentary by Nichola de Havilland, director of the Centre for Constitutional Rights, a unit of the FW de Klerk
Foundation, in Business Day. She says its professional bodies should launch an urgent application to the Constitutional
Court for a declaratory order on this question as it ‘is essential that absolute clarity be obtained’ and any decision of
whether to suspend the appointment is not left to the whim of the executive. De Havilland adds that it is not only the legal
profession and a small sector of civil society which should be outraged by this appointment. ‘As judicial independence
determines the power and capacity to defend and protect our Constitution and goes to the heart of an individual’s right to
a fair trial, every member of civil society has a vested interest in the protection of that independence. As the late chief
justice Ismail Mohammed powerfully cautioned, a subversion of judicial independence effectively amounts to a negation
of the very foundations of a constitutional democracy. Civil society cannot therefore allow the judiciary’s independence to
be so blatantly undermined.’
Full Business Day report



QUESTION RAISED OVER FILLING OF POSTS FOR JUDGES
More than 30 vacancies for judges need to be filled by April – the largest number of appointments that the JSC will have
to make at a single sitting – says a Financial Mail report. However, it points out that well qualified people from the
profession have not made themselves available for the Bench, given the JSC's handling of the interview and
appointment process over the past few years. It notes there has been growing concern that by focusing more on race
and gender than on experience, legal competence and qualifications, the JSC may have compromised the quality of the
Bench. Paul Hoffman, director of the Institute for Accountability and a senior advocate at the Cape Bar, said the
interviews for some vacancies over the past year or so have come across more as a ‘cadre deployment’ by the ruling
party. ‘The legitimacy of the Bench is being undermined by populating it with people whose experience, objectivity and
lack of bias is questionable,’ he is reported to have said. Anthea Jeffery, of the SA Institute of Race Relations, said that
that ‘political affiliation ought to be irrelevant. Judges must simply show that they can be fair and have the ability to
interpret the Constitution and to ensure that the values of the Constitution permeate all law.’
Full Financial Mail report (subscription needed)



13 ADVOCATES CHARGED OVER ‘DOUBLE BRIEFING’ RAF CASES
A total of 13 advocates – including two senior counsel – have been charged by the Pretoria Bar Council for ‘double
briefing’ on RAF legal cases, says a Mail & Guardian report. ‘There is a rule that says that an advocate must avoid a
conflict of interest between his financial interest and the interest of his client,’ said Nic Maritz SC, who – on behalf of the
Bar – is prosecuting the 13. ‘If you take two matters for the same day, you've got a conflict. Some advocates have been
taking up to 15 matters a day.’ Maritz told the M&G that there were about 90 RAF court matters a day last year and that
advocates had been settling cases, even when doing so meant paying claimants higher amounts than those that might
have been awarded following a full court hearing. The majority of the 13 are expected to plead guilty, facing a maximum
fine of R2 000 per offence, Maritz told the paper.
Full Mail & Guardian report




                                                                                                                             7
AFRICA AND WORLD NEWS ITEMS
LITIGATION
   LAWYERS ATTACK UK GOVERNMENT OVER BEREAVEMENT DAMAGES
   The Association of Personal Injury Lawyers (Apil) has criticised the UK Government for disregarding Law Commission
   recommendations to increase general damages in personal injury cases, says a Law Gazette report. It quotes Apil,
   which, responding to a Ministry of Justice (MoJ) consultation on the draft Civil Law Reform Bill, wrote that ‘injured people
   will bear the brunt of the government’s failure to keep the law of damages up to date’. Apil said the government has not
   gone far enough in extending the list of people eligible to claim for bereavement damages under the Fatal Accidents Act,
   the report notes. Under the MoJ proposals, parents will not be entitled to bereavement damages if a child is over 18. Apil
   said that ‘the Westminster government should learn from its Scottish counterpart, where the system for awarding
   bereavement damages is much fairer to relatives’.
   Full Law Gazette report
   Act



   LANDMARK TAX RULING FOR BRITONS LIVING OVERSEAS
   A report in The Times says a UK businessman based in the Seychelles has lost a long-running court battle over his
   residency, which has set a precedent for thousands of entrepreneurs and celebrities living away from the UK. The Court
   of Appeal ruled that Robert Gaines-Cooper was liable to pay UK tax despite spending less than 91 days a year in the
   country because England had remained ‘the centre of gravity of his life and interests’. The ruling is a serious blow for
   wealthy men and women who are based overseas but visit Britain frequently. After the court’s decision, Revenue &
   Customs said that it would increase its efforts to catch people who owed tax, the report notes.
   Full report in The Times



   US JURY RULES DRUGS COMPANY RESPONSIBLE FOR LOSS OF COLON
   A report in The Washington Post says that a New Jersey jury has ruled that Hoffmann-La Roche, the pharmaceutical
   company that makes Accutane, must pay an Alabama man $25.16m for having sold him a drug that caused his
   inflammatory bowel disorder. Andrew McCarrell (38), of Moody, Alabama, took the acne drug in his 20s. He says the
   company failed to adequately warn of its side effects. McCarrell eventually had his colon removed. The compensatory
   damages award came in a retrial. An Appeals Court overturned a $2.6m judgment he won in May 2007. The report notes
   that the company stopped selling the drug in June 2009, citing generic competition and the cost of defending against
   lawsuits, which have sought to blame the drug for suicidal behaviour and birth defects.
   Full report in The Washington Post



   UNIQUE LAW SUIT AGAINST FORMER DIRECTORS GETS GO-AHEAD
   Safeway has been given permission to continue a groundbreaking lawsuit against former employees and directors, which
   seeks to recover competition law fines from the ex-employees and directors involved in the breaches, notes a report on
   the Out-Law.com site. The High Court has rejected an attempt by the ex-employees and directors involved to have the
   case thrown out of court. Competition law expert Adrian Wood said that the case is unique. ‘This is the first known
   reported case in the English courts in which a company infringing competition law has sought to recover damages
   against former personnel who are alleged to be the perpetrators of the relevant anti-competitive behaviour,’ he said.
   Full report on the OUT-LAW.com site



PRACTICE
  HIGH-EARNING UK BARRISTER ACCUSED OF INFLATING LEGAL AID FEES
   One of the UK’s highest-paid civil barristers has been accused of trying to inflate his publicly funded legal aid fees by
   wrongly claiming for work, says a report in The Times. Jeremy Rosenblatt attempted to claim payment for meetings he
   had not attended and legal research that was not relevant, a disciplinary hearing was told. The barrister was listed as the
   country’s highest-earning civil legal aid lawyer in 2008 with a total gross income of more than £500 000. He made his
   fortune through civil law, a number of self-help books including How To Do Your Own Divorce, and numerous public
   appearances. He faces five charges of professional misconduct from his governing body, the Bar Standards Board.
   Rosenblatt denies the charges. The panel will reconvene on 15 March for a decision, says the report.
   Full report in The Times




                                                                                                                             8
GENERAL
  UK JUDGES UNDER PRESSURE TO RECONSIDER M15 CRITICISM DECISION
   In a test of the UK judiciary’s independence, the country’s senior judges are to take another look at their contentious
   decision to take out damning criticism of M15 from a ruling published last week. A report in The Times notes that lawyers
   for all the leading British and American media organisations have written to the Court of Appeal asking the judges to
   reinstate a paragraph – which disclosed how much M15 had been told about the torture of the Guantanamo Bay
   detainee, Binyam Mohamed – that they removed from their draft judgment after representations from the Foreign
   Secretary. The media groups have been joined by human rights organisations, Justice and Liberty, in their bid to
   persuade the judges to reconsider.
   Full report in The Times



   JURORS DON’T ALWAYS UNDERSTAND JUDGES’ INSTRUCTIONS – STUDY
   A report in The Times notes a new study claims two thirds of British jurors do not understand what judges tell them about
   the law when they retire to consider their verdicts. These findings will trigger an overhaul of the courts. The investigation
   found that jurors frequently used the Internet to read about trials on which they were sitting, risking miscarriages of
   justice. In 2008, juries in three Crown Court trials had to be discharged because they used the Internet inappropriately.
   The study, published this week by the Ministry of Justice, found that: all-white juries do not discriminate against black
   defendants; juries convict more often than they acquit in r ape cases; men sitting on juries are less likely than women to
   listen to arguments and change their minds; and conviction rates in Crown Courts varied from 53% to 69%. The study
   was carried out by Professor Cheryl Thomas, of University College London, and is based on 69 000 verdicts across 18
   months. It concludes that juries are fair and efficient but that more could be done to help them to perform their task.
   Full report in The Times
   Study: Are Juries Fair?



   ICC JUDGES SEEK CLARITY ON SCOPE OF KENYA INVESTIGATION
   Judges from the International Criminal Court (ICC) Pre-Trial Chamber II have urged chief prosecutor Luis Moreno-
   Ocampo to provide additional information regarding his request to open a formal investigation into allegations of crimes
   against humanity committed during the 2007-2008 post election violence in Kenya. The Jurist reports that the judges
   stated that clarification and additional information was necessary to exercise properly their review function authorised
   under Article 15 of the Rome Statute. Moreno-Ocompo's submission to investigate the Kenyan situation is historic, in that
   it is the first time he has used his proprio motu power, which allows him to initiate formal investigations upon
   authorisation by the Pre-Trial Chamber. According to the report, all other investigations conducted by the prosecutor
   have been at the behest of state parties or the UN Security Council.
   Full Jurist report



   JURY SYSTEM IS ‘DEMOCRACY IN ACTION’ – LAWYER
   Lawyer Paul Mendelle offers a strong case for the retention of the UK jury system in an article in The Guardian. He
   argues that despite the failings of individual jurors, juries get it right most of the time. ‘Don't just take my word for it,’ he
   says. ‘The report from the Ministry of Justice ¬published last week, the culmination of 18 months of meticulous research
   into over half a million cases heard in England and Wales, shows juries are fair, efficient and effective. They convict
   almost two-thirds of those they try, they convict more than they acquit in r ape, they do not exhibit any racial bias and
   they only fail to reach verdicts in less than 1% of cases. So juries do a good job and now we have the facts and figures to
   prove it.’ He says the fact that juries work well is not the only reason to support trial by jury. ‘Equally important is the fact
   that juries are one of the most democratic aspects of the constitution; they are democracy in action every day of the
   week, not just once every four or five years. There is no other part of the constitution that is so open to the public, where
   ordinary people participate in decisions of such immediate importance and wield real power.’
   Full article in The Guardian



   SAUDI ARABIA ALLOWS WOMEN LAWYERS TO ARGUE CASES
   Saudi Arabia is planning to bring in a new law to allow women lawyers to argue cases in court for the first time, says a
   BBC News report. Justice Minister Mohammed al-Eissa said the law was part of King Abdullah's plan to develop the
   legal system. The law – to be issued ‘in the coming days’ – would allow women to appear in court on family-related
   cases, including divorce and child custody. At the moment, they can only work behind the scenes in government and
   court offices.
   Full BBC News report




                                                                                                                                  9
 JUDGMENTS / LATEST JUDGMENTS AVAILABLE

 CONSTITUTIONAL COURT OF SOUTH AFRICA
 BILLITON ALUMINIUM SA LTD T/A HILLSIDE ALUMINIUM V NTOKOZO ARCHIBALD KHANYILE: Case
 CCT 72/09 - The Constitutional Court delivered judgment on Thursday, 18 February, in an application for leave to appeal
 an order of the Labour Appeal Court. The order appealed against was one which restored an arbitration award granting
 reinstatement of the employee (the respondent in this matter) retrospective to the date of his dismissal in 2001. The
 case arises out of the dismissal of the employee more than 9 years ago by the employer, the applicant in this matter,
 Billiton Aluminium. The employee successfully challenged the fairness of the dismissal in arbitration proceedings before
 the Commission for Conciliation, Mediation and Arbitration in 2001. On review the Labour Court remitted the matter for
 fresh arbitration proceedings. The finding of the commissioner in the second arbitration proceedings was that the
 dismissal was substantively unfair and that the employee should be reinstated retrospectively. This finding was taken on
 review to the Labour Court. The Labour Court confirmed the unfairness of the dismissal, but ordered compensation
 rather than reinstatement. This order was then taken on appeal to the Labour Appeal Court by the employee. In that
 court the employer ultimately accepted that the employee's dismissal was substantively unfair. In upholding the appeal,
 the Labour Appeal Court restored the commissioner's award, based on the finding that the Labour Court had wrongly
 treated the matter as an appeal rather than a review, and accordingly ordered that the commissioner's arbitration award
 be restored. The Court recognised that delays plague the dispute resolution procedures under the Labour Relations Act.
 It noted that such delays should be addressed by the users of the system within the different institutions that make up the
 dispute resolution procedures. It held that the delay in this particular case was primarily caused by the employer itself in
 its failure to implement the order of reinstatement, despite its eventual recognition that the dismissal was unfair. In the
 result, leave to appeal was dismissed.
JUDGMENT


 SUPREME COURT OF APPEAL
 ANGLOVAAL V SARS (411/08) [2009] ZASCA 109:                  - Income Tax Act 58 of 1962 – acquisition of shares –
 whether acquired as capital investment or trading stock – whether computation of appellant’s income tax liability done in
 accordance with s 22.
JUDGMENT


 NORTH GAUTENG HIGH COURT
 HEYSTEK V SA RESERVE BANK AND OTHERS: Foreign exchange amnesty – bank accounts frozen by SARB
 after amnesty withdrawn - money in account declared forfeit to the state - SARB executive GM of Markets, Daniel
 Mminele, criticised by Judge Sulette Potterill - Mminele had relied on recommendations by the SARB's foreign exchange
 division - he had questioned neither this division nor Heystek about the matter - no reasons were given to Heystek for the
 SARB's decision.
JUDGMENT
 THE NATIONAL CREDIT REGULATOR V SA BANKS AND OTHERS: The applicant, the National Credit
 Regulator established under section 12 of the National Credit Act, 34 of 2005 ("the Act"), seeks a number of declaratory
 orders aimed at clarifying interpretational difficulties that those who work with the Act experience in practice. The
 applicant has joined as respondents the major South African banks, two organisations hose members are credit
 providers in terms of the Act and the members of the national executive who have an interest. The eleventh respondent
 is a credit provider who was joined at its request. The twelfth respondent is a debt counsellor in terms of the Act and he
 was also joined at his request. The first to sixth and also the eleventh respondents have launched counter applications in
 which they respectively seek different declaratory orders.
JUDGMENT


 EASTERN CAPE HIGH COURT
 MZWANDILE LARRINGTON THUTHA V NOCAWE PHYLLIS THUTHA AND KSD LOCAL
 MUNICIPALITY: Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998 – applicant seeks
 eviction of first respondent. Issues to be decided: Whether applicant is the owner of the premises; what the effect of the
 settlement agreement concluded has on the rights of the parties, if any; whether children born of the marriage between
 the applicant and the first respondent ought to have been joined in these proceedings; whether the first respondent is an
 unlawful occupier as defined by the PIE Act; whether, it is just and equitable to evict the first respondent even if she is
 indeed an unlawful occupier as defined by the Act; and what order ought to be made with regard to costs.
JUDGMENT



                                                                                                                         10
         LITHOLI V RAF: R1.65m award against the Road Accident Fund – The plaintiff sued the Defendant in his
         representative capacity as the father and natural guardian of his son, Lisolethu, (“the claimant”) who was born on 21 May
         1995 and was 4 years old on the 11th December 1999 when he was injured in a motor vehicle accident. The Defendant
         eventually conceded the merits of the matter as well as the value of the general damages suffered by the claimant and
         that the Defendant be ordered to compensate the claimant for future medical expenses. The only issue remaining for
         determination related to the value of the claimant’s claim for his loss of earning capacity. The only witnesses who
         testified at the trial were the claimant’s school teacher, as well as Mr Gideon de Kock, an Industrial Psychologist. The
         Defendant called no witnesses and admitted the content of the expert reports of Dr Deon le Roux, a neurosurgeon, Dr
         Claudio Favara, an Ear Nose and Throat surgeon, Andiswa Gowa, an occupational therapist, Zanele Khumalo, a clinical
         Psychologist, as well as of Mr JL Olivier, an actuary.
    JUDGMENT
         HURTER V THE ROAD ACCIDENT FUND AND ANOTHER: 367/07. 2 FEBRUARY 2010: The
         plaintiff, a 20-year-old woman at the time, was seriously injured in a motor vehicle injury. Apart from a range of bodily
         injuries, she also suffered a brain injury which had the effect of altering her personality. The merits having been decided
         in favour of the plaintiff and certain of the heads damages having been settled, the only issues that required resolution
         were the quantum of her general damages and of her claim for loss of earning capacity. The court found that as a result
         of the brain injury, the plaintiff was entirely unemployable. It determined her general damages to be R500 000.00 and her
         damages for loss of earning capacity to be R4 250 000.00. A total award of R4 687 313.00 was made which included the
         agreed amount of R180 875.38 for past hospital and medical expenses and also took into account an amount of R243
         561.38 which had, during the trial, been ordered as an interim payment.
    JUDGMENT
         NONTOBEKO GEORGE V MEC FOR HEALTH, EASTERN CAPE:                                     Case No: 179/2008 - Applicant is
         seeking an order against the respondent in the following terms:- “That the deduction of one thousand three hundred and
         ten rand (R1310.00) from applicant’s salary be and is hereby declared unlawful and accordingly set aside. That the
         status quo ante in respect of applicant’s salary be and is hereby restored. That the Respondent be and is hereby
         ordered to repay applicant all monies sp unlawfully deducted including interest at the legal rate of 15.5 % per annum
         from the date of the first deduction to the date of the final payment.
    JUDGMENT



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