- YOUNG PEOPLE MUST MOBILISE THEMSELVES TO PARTICIPATE IN LEGISLATIVE PROCESSES OF THE COUNTRYWritten by Ivan Ka-Mbonane: LLB, LLM Corp Law, Dipl Public Adm, Post graduate Diploma Contract Drafting and Interpretation.
In each and every democratic society, legislation plays an important role not only in regulating human behaviour but in also confering benefits on people and in the imposition burdens. South Africa has three legislative authorities namely: the National; Provincial; and Municipal legislative authority. Each legislative authority is responsible for legislating in its jurisdictional area.
Legislations enacted by different legislative authorities have the propensity of affecting young people as they are in the majority. It is therefore important for young people to take advantage of our constitutional frame work and fully participate in legislative processes of the country. Young people must appreciate that the legislative process commences by a discussion document called a Green Paper. This is drafted by the Department initiating the legislation in order to show its thinking on a particular policy. The Green Paper is followed by a more refined discussion document called a white paper, which is a broad statement of government policy.
Both documents are published for anyone who is interested to make comments. It is important for young people to follow these developments in order to make comments that protect their rights and interests.
The Constitution allows for substantial consultation process when legislation is made. The consultation process may take place in a variety of ways including but not limited to: discussion papers; workshops; working documents; publication of Bill; and requesting of comments. It is important for young people to mobilise themselves in order to make inputs during the legislative process. By doing so, young people will be ensuring that future legislations reflect their views.
After submission of the Bill to Parliament, the Bill is referred to the Committee of Parliament known as the Portfolio Committee. This Committee is obliged to invite comments from the Public. Again, young people have an opportunity to mobilise themselves in order to make structured inputs into the legislative process in order to influence legislations to be in their favour.
It is concerning to note that the majority of young people do not participate in public hearings conducted by Portfolio Committees. I say this because I had an opportunity of attending a number of public hearings arranged by different Portfolio Committees. In all these hearings, there was a dearth of young people. This occurrence is disturbing becouse young people are the majority in this country and legislations passed by Parliament affect them directly.
It may be important to illustrate the lack of participation by young people in legislative processes by way of an example. The Expropriation Act of 1975 is inconsistent with the Constitution in a number of ways. Parliament instructed the Department of Public Works to review the Expropriation Act in order to align it with the Constitution.
We all know that the Expropriation Act may be used to expropriate property for public purposes or in the public interest in order to address the inequalities of the past. The historical dispossession of land affects the majority of young people. In 2008, the Portfolio Committee on Public Works conducted public hearings on the Expropriation Bill in all 9 provinces, inviting comments from the public.
I had an opportunity to attend all the hearings, as I was part of the process. It was disturbing to notice a paucity of young people in those hearings. I expected to see young people in great numbers making inputs, as they are the most affected by land inequalities in the country.
It is in this regard that I urge young people to mobilise themselves and make substantial inputs in all legislative processes of the country as they are the ` most affected by legislations passed by different legislative authorities.Ivan Ka-Mbonane is the Head of Legal Services in the Department of Public Works and a Director Ka-Mbonane Attorneys. LLB, LLM Corp Law, Dipl Public Adm, Post graduate Diploma Contract Drafting and Interpretation.
(He writes in his personal capacity)
- THE EXTENT OF THE INCONSISTENCY BETWEEN THE EXPROPRIATION ACT 63 OF 1975 AND THE CONSTITUTIONWritten by Ivan Ka-Mbonane: LLB, LLM Corp Law, Dipl Public Adm, Post graduate Diploma Contract Drafting and Interpretation.
The Republic of South Africa is one sovereign state, founded on a variety of constitutional values including but not limited to the supremacy of the Constitution and the rule of law. This is amplified by section 2 of the Constitution which states: “This Constitution is the supreme law of the Republic, law or conduct inconsistent with it is invalid, and obligations imposed by it must be fulfilled”.
It is clear from the above-mentioned constitutional provision that any law or conduct inconsistent with the Constitution is invalid. One such law that is inconsistent with the Constitution and therefore invalid is the Expropriation Act of 1975, the (‘Act’). The fact that this Act was enacted in 1975 tells us that it is so old to such an extent that it predates the Constitution and regarded as “Old-Order Legislation”.
Section 25(2) of the Constitution provides for expropriation to occur where the expropriation will serve a public purpose or is in the public interest and subject to compensation. To see the extent of inconsistency between the Act and the Constitution, it is important to appreciate the varience between the concept of public purpose and public interest. For the sake of brevity, Public purpose relates to any purposes connected with the administration of the provision of any law by an organ of state. Section 25(4) (a) of the Constitution defines public interest to include the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources. This confirms the fact that the Expropriation Act is inconsistent with the Constitution by allowing expropriation to take place for narrow purposes whilst the Constitution envisages a situation where expropriation should take place for broader purposes.
Section 25 (3) of the Constitution states: “The amount of compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interest of those affected, having regard to all relevant circumstances, including:
- The current use of the property;
- The history of the acquisition and the use of the property;
- The market value of the property;
- The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
- The purpose of the expropriation.
In terms of the Expropriation Act, the amount of compensation that must be paid is the one which the property would have realized if sold on the date of the notice in the open market by a willing buyer to a willing seller (Market value). Whilst the market value of expropriated property is a predominant factor in the Expropriation Act, the Constitution does not give undue weight to any single factor over others, but requires a careful consideration and proper balancing of all other relevant factors. This is but another confirmation of the consistency of the Expropriation Act in its inconsistency with the Constitution.
The manner in which compensation is computed in the Expropriation Act has made it difficult, if not impossible for government to expropriate property in the public interest, in order to bring about access to all South Africa’s natural resources as well as to achieve redress, equity social justice and sustainable development. It is therefore important to align all legislation pertaining to expropriation with the Constitution. This will assist government to redress the imbalances of the past, which were caused by a systematic method of oppression by a white minority to the black majority.
It may be prudent to mention that the restitution for those dispossessed after 1913 has not progressed to satisfactory levels. Chief amongst others is the inability of government to meet the demands of property owners for market related value of the expropriated property.
In terms of the Expropriation Act, only the holders of registered rights and certain unregistered rights are eligible for compensation upon expropriation. The Constitution, however, does not make a distinction between registered and unregistered rights. It is therefore inconsistent with the Constitution to terminate unregistered rights without compensation. The Constitution seeks to expand the scope of protected rights to provide for compensation for both registered and unregistered rights.
The above inconsistencies between the Expropriation Act and the Constitution reasonably justify the urgent redrafting of the Act to ensure consistency with the Constitution. The alignment of the Act with the Constitution may be necessary to enable government to move with reasonable speed in addressing the inequalities of the past occasioned by apartheid.Ivan Ka-Mbonane is the Head of Legal Services in the Department of Public Works and a Director at Ka-Mbonane Attorneys. LLB, LLM Corp Law, Dipl Public Adm, Post graduate Diploma Contract Drafting and Interpretation.
(He writes in his personal capacity)
- THE ROLE OF ETHICS IN THE LEGAL PROFESSIONWritten by Ivan Ka-Mbonane: LLB, LLM Corp Law, Dipl Public Adm, Post graduate Diploma Contract Drafting and Interpretation
The word ethics has been used from the ancient times. To date there is no definitive meaning of the word ethics. Different philosophers define the word ethics differently. For the purpose of this article I shall confine myself to the definition that is agreeable to all philosophers and that is: “the moral principles that govern a person’s or group of person’s behavior”. A lot of philosophers are not at variance about the understanding that the word ethics could also mean: “the moral correctness of specified conduct”.
It is for this reason that Aristotle holds the view that: “ethics is a branch of philosophy that examines the question of what actions are morally right or wrong and why?”. It may be of great import to note that ethics came into existence only when humans started to reflect on the best way to live. This reflective stage emerged long after human societies had developed some kind of morality, usually in the form of customary standards of what is right or wrong.
For the purposes of this article, the legal profession shall mean both the attorneys and advocates profession. I say this because attorneys and advocates work very closely together, by reason of the fact that advocates are not allowed to deal with clients directly but are briefed by attorneys. It is therefore important for both attorneys and advocates to display high ethical standards at all times, when working together.
I say the above, being concerned by the article written by Dianne Hawker, which appeared in the Sunday Independent, dated 2 October 2011, titled” Penalties for advocates and lawyers”. In this article, the writer states “the Pretoria High Court disbarred six advocates for their involvement in one of the biggest scandals to hit the legal profession in South Africa. In total, thirteen advocates had been referred to the High Court after an investigation by the Pretoria Society of Advocates revealed that from February to November 2009, the advocates were guilty of taking on more than one brief a day in RAF (Road Accident Fund) matters”.
The case was heard by three well respected retired judges namely: Combrinck J; Kees van Dijkhorst J; and de Villiers J. The Court was unequivocal that the advocates had acted with varying degrees of dishonesty but not in a vacuum and ordered a copy of the judgment to be delivered to the Law Society of the Northern Provinces to determine whether attorneys should face disciplinary actions or not.
The Court ordered that the advocates must repay the full R15 661 900 (fifteen million six hundred and sixty one thousand and nine hundred rand) to the Road Accident Fund over a year. These advocates include both senior and junior counsel. It is indeed embarrassing that members of such an honorable profession had to be involved is such unethical conduct.
In his book, titled Legal Ethics, Lewis says: “There is a duty upon practitioners to be truthful, honest, candid and fair in all his dealings”. One would have expected these advocates to be honest and fair to both the Court and the Road Accident fund by not taking more matters they could not do in one day, considering that the Road Accident Fund is established to help the victims of road accidents.
I therefore call upon young advocates and attorneys to desist from behaving in an unethical manner, as this is not a conduct expected from an officer of the Court. This call also applies to candidate attorneys and pupils.
It is therefore important for lawyers to remember that paragraph 2 of the International Code of Ethics, adopted at Oslo on 25 July 1956 and amended by the General meeting of the International Bar Association at Mexico City, 29 July 1964 and at Stockholm, 18 August 1976, states: “Lawyers shall at all material times maintain the honor and dignity of their profession.
It is in light of the above judgment that I call upon young people who aspire to be advocates and attorneys to endeavor at all material times to maintain the honour and dignity of the profession and to remember that the legal profession is an honorable profession that needs to be treated with the necessary decorum it deserves.Ivan Ka-Mbonane is the Head of Legal Services in the Department of Public Works and a Director at Ka-Mbonane Attorneys. LLB, LLM Corp Law, Dipl Public Adm, Post graduate Diploma Contract Drafting and Interpretation
(He writes in his personal capacity)
- SUPPORT OF YOUNG BLACK LAWYERS IS NECESSARY FOR THE TRANSFORMATION OF THE JUDICIARYWritten by Ivan Ka-Mbonane: LLB, LLM Corp Law, Dipl Public Adm, Post graduate Diploma Contract Drafting and Interpretation
The advent of democracy brought about a need to transform the South African judiciary in order to be representative of the demographics of South Africa. As a society, we emerge from a history of deep divisions, where black people were excluded from participating in the judiciary.
A commitment was made after 1994, to transform the judiciary to make it representative of the South African society. In order to do this, collective effort is required from a variety of stake holders, including but not limited to: Government, Universities, Private Sector and the Law Society.
Government should play a multifarious role in transforming the judiciary. We all know that in the past, black schools lacked resources to prepare black students for tertiary. This made black schools to produce candidates that lacked necessary skills required by the legal profession, which later made it difficult for blacks to enter and stay in the legal profession. These skills include but not limited to: accountancy, numeracy, problem solving, critical thinking and computer.
Universities should contribute to the transformation of the judiciary by working closer with the Law Society in establishing skills required by the profession. Nick Swart, the Director of (L.E.AD) in the Law Society of South Africa, says in his article titled: Graduate attorney skills gap, published in Mail & Guardian on 23 December 2010 “As regards legal topics, most faculties include in their curriculum the theoretical learning areas that are regarded as necessary for attorneys by LSSA. However, there appears to be lack of consensus on the skills that are needed”.
It is important for universities to work closely with the Law Society to establish the requirements of the profession. I say this because the Law Society trains more that 1000 law graduates a year, more that 80% of the students at the Law Society’s School are black and almost half are women, according to the above mentioned article. It is in this regard that I urge universities to work closely with the Law Society, so that black young law students can acquire the necessary skills to enable them to stay in the profession and later qualify for selection in the judiciary.
The judiciary cannot be transformed unless the State and Private Sector assist young black lawyers to stay in the profession by giving them legal work.
The office of the state attorney is giving most of its work to advocates, this is so because they are attorneys themselves and cannot be seen to be giving work to attorneys. This practice needs to be reviewed to allow the state attorney’s office to give work to young black attorneys.
Young black lawyers end up leaving the profession to join Government and Private Sector in order to make a leaving. Some of them leave the profession while serving articles because they earn meager salaries. It is important for the Law Society to review this practice. As a result of this, there will be a dearth of black lawyers to be deployed in the judiciary. This will in turn make transformation of the judiciary impossible. I therefore call upon Government, Universities, Private Sector and the Law Society to support young black lawyers in order to transform the judiciary. The young black lawyers of today must be supported to become the judges of tomorrow.Ivan Ka-Mbonane is the Head of Legal Services in the Department of Public Works and a Director at Ka-Mbonane Attorneys. LLB, LLM Corp Law, Dipl Public Adm, Post graduate Diploma Contract Drafting and Interpretation
(He writes in his personal capacity)
- HOW TO CLOSE THE SKILLS GAP THAT EXISTS IN THE LEGAL PROFESSION?Written by Ivan Ka-Mbonane: LLB, LLM Corp Law, Dipl Public Adm, Post graduate Diploma Contract Drafting and Interpretation.
The legal profession is experiencing skills gap. This suggestion was made by Nic Swart, the director of Legal Education and Development (L.E.A.D), in his article published in the Mail & Guardian on 23 December 2010, titled “Graduate attorneys skills gap”. L.E.A.D is the education arm of the Law Society, responsible for offering practical legal training to law graduates, in order to prepare them to enter the legal profession. The majority of the students happen to emerge from previously disadvantaged communities.
I am fortunate to be part of this prestigious school that prepares law graduates to become attorneys. In my few years of being an instructor at the school, I noticed with great sadness that the majority of the students, at the school, who are about to enter the legal profession, lack the necessary skills required by the legal profession.
The majority of the students at the school have matriculated with general stream subjects. Due to lack of educational guidance, most students were advised to take history as a subject in order to study law for the purposes of becoming practitioners. Some students were encouraged to take maths and science in order to become doctors, whilst others were advised to consider commercial subjects in order to become chartered accountants. The career guidance was limited to the above professions and subject combination and or selection.
Most of the students who emerge from previously disadvantaged communities were advised that taking history, as a subject, would increase their chances of becoming better legal practitioners. This advice not only failed to appreciate the actual competencies required by the legal profession, but also failed to recognize the inherent complexities of the legal profession. The lack of proper educational guidance to most black students has created a skills gap in the legal profession.
There is definitely a causal link between this skills gap and the apartheid education system in so far as it related to black people. The configuration of the education system was such that black schools lacked the necessary resources to adequateley prepare them for tertiary education. This system, coupled with lack of proper guidance, impaired the ability of black students to select subjects required by the legal profession. This, in turn, made the majority of black students to select subjects that are incongruent with the requirements of the legal profession.
My view is that to be an effective legal practitioner, it is appropriate to consider subjects such as: accountancy; economics; business economics; maths; science and numeracy skills. It may be advantageous as well to consider two or more languages, as the ability to communicate effectively is essential in the legal profession. In order to close this skills gap, it is important for young people who aspire to become legal practitioners to seriously consider taking the subjects referred to above. I say so because these subjects increase critical thinking, problem solving skills, cogent reasoning, constructive debate and encourage other mental stimulation exercises required by the legal profession.
It is therefore misleading to suggest that in order for one to become an efficient legal practitioner one needs to study history. Most of the complex legal disputes require a substantial comprehension of the subjects mentioned above. It is therefore important for young black students to review their decision of taking history as a subject in order to become legal practitioners and to consider the subjects mentioned above as they contain the academic contents required for providing solutions to complex modern legal issues. Young black legal practitioners can close this skills gap that exists in the legal profession by selecting subjects that are required by the legal profession, as this will increase their competitiveness in the legal fraternity.Ivan Ka-Mbonane is the Head of Legal Services in the Department of Public Works and a Director at Ka-Mbonane Attorneys. LLB, LLM Corp Law, Dipl Public Adm, Post graduate Diploma Contract Drafting and Interpretation
(He writes in his personal capacity)
- WHY DO COURTS ADOPT AN UNFRIENDLY ATTITUDE TOWARDS “FRIENDLY SEQUESTRATIONS?Written by IVAN KA-MBONANE:ND PAdmin(TUT), LLB(UNISA)
So-called “friendly” sequestrations are brought about by means of a co-operation between a debtor and a creditor. Despite the existence of such co-operation, the requirements of Section 10(a), (b) and (c) of the Insolvency Act, 24 of 1936 (“the Act”) still find application. Such that the petition must show the court prima facie that:-
- There is a valid claim against the debtor;
- An act of insolvency has been committed by the debtor; and
- There is advantage to creditors if the debtor’s estate is sequestrated.
Where proceedings for compulsory sequestrations are by way of a friendly application, it is not a statutory requirement that the provisions of Section 4 should be complied with as these relate to the voluntary surrender by a debtor of his estate, rather than a compulsory sequestration. Debtors accordingly prefer the friendly method of sequestration because it bears the lighter burden of the petitioner simply showing prima facie that there is a reason to believe that the sequestration will be to the advantage of creditors. In consequence there is a real possibility that the interests of creditors may be seriously prejudiced. For this reason alone, the courts should scrutinise such applications with particular care and circumspection.
There is nothing necessarily sinister in a friendly sequestration and a proper application brought before court with the requisite information and supporting documents should not be refused merely because there appears to be a measure of co-operation and goodwill between the parties (i.e. between debtor and the sequestrating creditor). What is of great concern in friendly sequestrations is the prospect of “collusion” between the parties in the form alluded to by Curlewis J in Bevan v Bevan and Ward 1908 TH 193 at 197; “In our law, ordinarily speaking, collusion is akin to connivance, and means an agreement or mutual understanding between the parties that the one shall commit or pretend to commit an act in order that the other may obtain a remedy at law as for a real injury”.
In most applications the act of insolvency committed by a debtor and used as the basis for friendly sequestrations, is a written acknowledgement of inability to pay debts as contemplated in Section 8(g) of the Act. The courts should not however simply grant the application in terms of such section, unless it is clear that the general body of creditors will benefit. In Kuhn v Karp 1948 (4) SA 825 (T) at 827; Roper J remarked “In my view collusion consist in our law in an agreement between the parties to a suit to suppress facts, or to put false evidence before court, or to manufacture evidence, in order to make it appear to the court that one of the parties has a cause of action, or ground of defence, which in fact he has not.”
In Craggs v Dedekind, Baartman v Baartman and Another, Van Wardt v Borett 1996 (1) SA 935 (C) Conradie J asks “What is the court to make of the evidence like the following?……… “Die Respondent is waarlik en wettig aan my verskuldig, in ‘n bedrag van R4,000.00 ten opsigte van geld wat ek aan die Respondent geleen en voorgeskiet het welke bedrag is (sic) betaalbaar en opeisbaar. Ek hou geen sekuriteit vir die betaling nie.”
The above “acknowledgement” was severely criticised by the court for a number of reasons, including but not limited to the following:-
- No date is given as to when the loan was made;
- No terms of the loan agreement are specified;
- No reasons for the loan appears from the papers.
The sketchy explanation failed to overcome the court’s scepticism and the court was left with no option but to postpone the matter sine die with leave granted to the petitioner to file supplementary affidavits in order to clarify the unexplained issues. Many friendly sequestrations are brought before the court without convincing evidence and it seems more and more as if the courts are inclined to dismiss such applications rather than to simply postpone so as to afford petitioners another chance to properly explain the relevant facts and circumstances.
COLLUSION BETWEEN PARTIES AMOUNTS TO ABUSE OF COURT PROCESSES
In Esterhuizen v Swanepoel and 16 Others 2004 (4) SA 89 (W) Satchwell J dealt, in the judgment with a number of concerns that exhibit some or more or all of the hallmarks of “collusive” friendly sequestration applications”. Among others, they include but are not limited to:-
- The alleged debt upon which the sequestrating applicant creditor seeks to rely is usually a loan in quite a small amount, often described in rounded financial terms;
- Often no explanation is given of the background to, the reason for and the purpose of the loan. The basis upon which the borrower made the approach for the funds or the purpose for which he intended to use them are not described;
- The applicant explains his or her willingness to make such a loan on the basis of friendship or family relations. The ability of the lender to make such a loan, in cash, is never stated. The result is that the source of funds (the location of savings or the income from which the loan emanated) as well as some basis for believing that the lender did not himself or herself have need of the money (i.e. That it was surplus and available) is not disclosed;
- Not only is the financial position of the lender seldom mentioned, but the ability of the borrower to ever repay the loan, the anticipated source of the repayment and the basis for any confidence that this is a safe risk are never revealed;
- Friendship and consanguinity are claimed to have encouraged the loan where the financial circumstances of either party could never logically do so, alternatively there is so little detail as to such financial circumstances that the court is in no position to assess these. It subsequently transpires (so the court is asked to accept) that the inability of the borrower to repay these quite small sums of money impacts very heavily on both lender and borrower. The lender cannot do without repayment of the funds lent and feels obliged to initiate sequestration proceedings while the small debt (in the scale of things) is sufficient to tilt the borrower in the direction of insolvency (one is left wondering why summons was not simply issued to recover the debt in question);
- No security, of any sort, is required by the lender or provided by the borrower. There is no indication that there has been an inquiry as to the ability of the borrower to repay the loan or satisfy the indebtedness or a request for some security. There is blithe and unconcerned due regard for the usual travails of life – money passes hands without a backward glance or concern as to its return. In fact, the lender appears to have made no inquiries as to the existence of any other indebtedness of the borrower;
- The terms and conditions of the transactions go unrecorded in writing and undisclosed to the court. There is usually no record of any loan having taken place and the applicant is silent as to the reason for the loan, the date of the debt incurred, the period of the loan, the agreed date of repayment, the rate of interest charged and method of calculation, the terms of repayment, whether in one payment or by way of instalments;
- The actual transfer from the lender to the borrower cannot be traced and the court is not invited to track a cash or cheque withdrawal from the lender’s bank or building society account which is then converted into a deposit into the bank or savings account or other place of safekeeping under the control of the borrower. Not only is there no withdrawal slip or cancelled cheque. No receipt marks the actual payment of monies to the borrower. So trusting is the lender that he or she lends money without asking for a piece of paper with a signature or a fingerprint to record that a sum of money has exchanged hands.
CO-OPERATION BETWEEN PARTIES LEADS TO COLLUSION
In light of the above, it is important for the courts to be scrupulous at all times when dealing with friendly sequestrations. Courts should guard against simply rubber-stamping clear collusion between debtor and creditor and this should be so to protect the interests of society and the State; and more so, to be consistent with the underlying principles of the Act and the role assigned to the courts by the statute. It is equally important for parties bringing a friendly sequestration to display the highest ethical standards and to approach the court on the basis of absolute honesty, integrity and reliability. The various divisions of our High Court often require that it be shown that there are assets in the estate which, when revealed as part of the sequestration process, will result in creditors receiving at least, for example, 10 cents in the Rand when they proved their respective the claims. This at least results in the debtor having “something to lose” in meekly allowing his estate to be sequestrated by a friendly debtor rather than electing to repay the debt.
In modern society, it is very often so that a friendly creditor and a friendly debtor agree to “assist” each other, to the detriment of other creditors. This is often done without regard for the prejudice caused and without even seeking to explain how it has come about that the debtor is insolvent and how it came about that he was indebted to the creditor in the first place.
Can we really blame the courts for adopting an unfriendly attitude towards “friendly sequestrations”?