ATTORNEYS’ PRACTICE AND LEGAL ETHICS

3.1 Professional Legal Ethics

o The attorneys’ practice includes professional ethics, which entails the

LPC Code of Conduct, and all the rules of professional conduct
appertaining to a legal practitioner in their professional life – as an
officer of the court, in their relationship with their client, colleagues,
society, and staff – also extra-professionally while they remain in the
profession.

What are professional legal ethics?

Professional ethics concern themselves with the rules of conduct regulating the attorneys’
profession. They provide the norms in terms whereof legal practitioners are judged to be fit
and proper persons to practice.

It is:

“The code of conduct among lawyers which governs their moral and professional duties
toward one another, toward their clients, and toward the Courts.”

“They are the standards of right and honourable conduct which should be observed by
members of learned professions in their dealings with each other and in protecting the
interests and handling the affairs of their clients. They are designed to provide lawyers with
an understanding of the ethical context in which the law operates. They teach them to be
aware of the limitations of the rules determining ethical behaviour.”

What is a fit and proper person?

The concept of a “fit and proper person” is the basis for entry into the profession, the conduct
of a legal practitioner’s entire practice and the test to be applied when the Court considers
whether to disbar him or her. The concept is nowhere described with any precision, and
understandably so, since there is no numerous clausus of circumstances which would
render a person not “fit and proper”.

Uphold the law

Because a legal practitioner is associated with the administration of law, they are under a
positive duty to maintain the law at all times. This obviously means that they must not break
the law. Being convicted of a criminal offence (other than merely trivial offences such as a
minor traffic infringement) usually amounts to unprofessional conduct even if no dishonesty
is involved because it may indicate that the legal practitioner has disrespect for the law.

Dishonesty not required

There may be unprofessional conduct without positive dishonesty. If an attorney, by

what he or she has done, evidences that he or she does not understand the nature and
extent of the obligations to clients which the profession imposes, of if he or she does
not observe them, then, given the sufficient gravity of the impropriety, he or she may be
held guilty of unprofessional conduct.

Do not assist your client to break the law

A legal practitioner’s duty to uphold the law also requires that he or she must not assist a
client to break the law. If a client proposes to break the law, the legal practitioner must alert
the client to the consequences of such action and seek to dissuade him or her. However, it is
not improper for a legal practitioner to advise a client on how to take advantage of a loophole
in the law.

A legal practitioner’s responsibility towards his or her client can never override his or her
duty to uphold the law. Accordingly, the legal practitioner must not do anything that is
dishonourable, even if it is in the interests of the client and he or she is pressed to do it.

Personal life

The standards of behaviour expected of a legal practitioner are very demanding and extend
not only to their professional life but also to their personal life. The rationale is that if you do
something which brings you into disrepute, then the profession will be brought into disrepute
and further, the administration justice – of which you are an integral part – will be brought
into disrepute.

Even though personal misconduct may have less weight than professional misconduct, it
may still be a ground for striking a legal practitioner off the Roll of attorneys because it may
show that he or she is not a fit and proper person to practise law.

Lewis’ golden rule:

“A practitioner must avoid all conduct which, if known, could damage their reputation
as an honourable lawyer and honourable citizen.”

See page 137 for risk management in legal practice

 Conflicts of interest

A legal practitioner’s primary duty is to use their utmost skill and experience and all
relevant information known to them to further the interests of their client. Accordingly,
a legal practitioner should avoid doing anything which may potentially conflict with this duty.
A failure to avoid a conflict of interest may expose him or her to liability for
negligence and may constitute unprofessional conduct. A conflicting interest is one
which would be likely to affect adversely the judgment of the lawyer on behalf of or
the loyalty to a client or prospective client.

Virtually all difficult ethical problems arise from a conflict between a legal practitioner’s duty
towards his or her client and the legal system and his or her own interests in remaining an
upright person while trying to earn a satisfactory living. In other words, but putting his or her
personal interests ahead of his or her professional responsibilities.

Section 59 of the Code of Conduct for Legal Practitioners of the Legal Practice Act 27 of
2014 reads as follows:

A legal practitioner shall, when acting for two or more clients, be aware of the risk of
conflict of interests existing or arising in the course of the proceedings, whether
criminal or civil, and once the legal practitioner is alerted to the existence of a conflict
he or she shall withdraw from acting for one or all clients in those proceedings as
soon as possible, and in particular:

If the legal practitioner has become aware of privileged or confidential information of

any one client relevant to the proceedings that could be used to the prejudice of any
other client, the legal practitioner may not act in any proceedings in which the
prejudiced client is a party;

1. If the legal practitioner learns of a conflict of interest among clients at a time and
under circumstances where the legal practitioner is not made aware of any privileged
information, the legal practitioner may continue to act for one or the other client as
nominated by the instructing attorney (where one is appointed).
2. A legal practitioner may act for two or more adversaries in drawing a settlement
agreement to capture their agreement but must advise the parties of their rights to
independent legal advice. Moreover, in any matter involving a settlement of a
matrimonial dispute or a matter involving the regulation of care and residence of
children, the legal practitioner shall take active steps to ensure that all aspects of any
contemplated settlement are equitable to all parties and in the best interests of the
children.

Examples of conflict-of-interest situations are:

 Where a legal practitioner is requested to act for both Plaintiff and Defendant. You
cannot act for two opposing parties in actual or contemplated litigation, but in most
jurisdictions, there is no absolute rule precluding you from acting for both parties in
non-litigious matters.
 Do not be under the misapprehension that it is proper for you to act for both parties to
a transaction because they consent or even insist that you act for both of them. A
client can never be the arbiter of what professional propriety requires.
 Where the instructions or versions of clients differ. For example, where the son
pleads guilty and the father pleads not guilty.
 Where you may be sued by a client.
 You should not act contrary to the interests of a prior client because apart from the
fact that you have a duty not to disclose confidential information you obtained while
acting for X you also have a duty to do the best for your new client which includes
reliance on any relevant information in your possession, irrespective of its source.
 Becoming sexually intimate with a current client because it may involve unfair
exploitation of the lawyer’s fiduciary position and represents a significant danger that
the lawyer’s ability to represent the client adequately may be impaired.
 It is undesirable for an attorney appointed as curator ad litem for the purpose of
conducting legal proceedings to handle those legal proceedings himself or herself or
through his or her firm. A curator ad litem has to act solely for the benefit of the
patient. Any conflict of interest has to be avoided.
 It will be unethical for an attorney to represent both employer and employee
simultaneously in one or more of the following instances where:
o a right or possible right of action by an employer against an employee exists;
o a common cause does not exist between employer and employee;
o the employee contends he or she was acting in the course and scope of their
employment or carrying out their official duties while the employer contends
otherwise; or
o the employee does not consent to the joint representation of the attorney.
 The attorney’s representation of both insurer and insured can also give rise to a
conflict of interest where:
o the act giving rise to the claim falls outside the policy limit;
o one party wishes to settle whilst the other does not; or
o a conflict of interest exists if an attorney makes a secret profit from a
transaction involving his or her client without disclosing to his or her client fully
the receipt of any such profit, and he or she may only retain such commission
provided the client agrees expressly or impliedly that he or she may do so.
See page 86 for costs

 Confidentiality and legal professional privilege

Confidentiality

Your clients will often discuss with you the intimate details about their private and business
affairs, some of which may be known only by a few other people. It is part of your duty to
your client to maintain the confidentiality of matters which are discussed during the
course of your retainer.

What is confidentiality?

Any attorney has a duty to keep the communication with his or her clients
confidential. This is because a fiduciary relationship exists between an attorney and his or
her client. They attorney may not disclose the information a client has given to him or her.
Confidentiality is a wide term and includes all information, no matter what it is, whether
written, oral or visual.

It is important that all clients everywhere in the country can know that the information parted
to the attorney will be kept confidential. If there was not this clear-cut, strict rule in place,
it would be hard to trust an attorney with your private information. The duty on the
attorney to keep clients’ information confidential is very high and if an attorney breaches this
confidentiality by exposing a client’s information to somebody else, the attorney can be
held liable for damages.

The confidentiality of discussions between a legal practitioner and his or her client is
premised on the need to ensure that clients make full and frank disclosure of all
relevant circumstances to their legal practitioner.

The information covered by the ethical duty of confidentiality must be regarded as

confidential by the client and lawyers are advised, if in doubt, to regard even matters
that are generally known, such as the client’s name, address, job and marital status –
even the fact that he or she has retained the lawyer’s services – as confidential unless
the client advises the legal practitioner to the contrary.

Legal professional privilege

What is privileged information?

No attorney may disclose any privileged information of a client to anybody, unless

ordered so by a Court of law. Privileged information means that certain
communications between an attorney and his or her client may not be used in
evidence.

Whereas FICA does not protect confidential communications between attorney and client, it
does expressly protect attorney and client privilege in terms of section 37(2). It is accordingly
of utmost importance that legal practitioners are fully conversant with the precise nature and
scope of professional privilege, and of confidentiality, and, most importantly, with the
distinction between the two and the differing protection afforded to each in law.

Privilege is the protection from evidential use of certain confidential matter. It has its
true basis in a fundamental right to give and take legal advice with complete
confidence that communications between legal practitioner and client are protected.
Without such right our adversarial system of litigation cannot operate properly.

When does privilege apply to information?

In the Court case of Thint (Pty) Ltd v National Director of Public Prosecutions and others;
Zuma v National Director of Public Prosecutions and others the Honourable Court said that
there are four legal requirements for privilege to apply:
1. The attorney must have acted in a professional capacity, for example the attorney
must have been paid a fee.
2. The client must have consulted with the attorney in confidence. There must obviously
be confidence before there can be privilege.
3. The client must have sent the communication (oral or written) for the purposes of
obtaining legal advice from the attorney.
4. The advice must have been legal advice and not advice to help somebody to commit
a crime of any kind, even if the attorney is completely unaware of the crime.

The client owns the privilege. The attorney can only be forced to give the information (except
under point 4 above) if a Court orders him or her to do so or if the client gives the attorney
permission to give the information to whoever asks for it.

Legal professional privilege attaches to information obtained by or for a professional

legal adviser for the purpose of advising their client as to the prosecution or defence
of an action or advising them as to whether a claim should be made or defended. For
privilege to operate within this rule two things must occur:
1. The information must be obtained for the purpose of obtaining professional
legal advice; and
2. It must be obtained for the purpose of obtaining that advice with reference to
actually pending or contemplated litigation.

Privilege applies not only to disclosure in judicial and quasi-judicial proceedings, but also to
all forms of compulsory disclosure – such as search warrants and statutory notices to
produce documents – except where clear language in a statute overrides such privilege.

Privilege does not arise automatically but must be claimed. An attorney can claim it, but on
the client’s behalf.

Professional privilege does not apply to:

 Documents which are not otherwise privileged. They do not become privileged
merely because your client hands them to you.
 Communications made for the purpose of facilitating a crime or fraud.
 The name of your client – you can be compelled to disclose it.
 Facts learned by you with your own senses and where a statute expressly or by
implication provides that the privilege is inapplicable.
 Where confidentiality of oral evidence is destroyed by such evidence, the
confidentiality of contemporaneous records is likewise destroyed.

 The ethical duties of an attorney related to the profession and the Code of
Conduct

The treatment of clients

The Law Society of South Africa has summarised “the rights of a client of an attorney”, which
include:
 to professional, honest and unbiased advise at all times;
  to be treated with professional courtesy, respect and fairness, regardless of your
race, nationality, age, gender, sexual orientation or disability;
 to privacy and attorney-client confidentiality;
 to agree the type of service you can expect and receive;
 to clear explanations in terms you can understand;
 to find out from the start of the consultation what you are hoping to achieve, and aim
to make sure that your expectations are realistic;
 to know who will be handling your matter;
 to be advised on the likely success of your matter and not to do unnecessary work
that will lead to unnecessary expenses;
 to an explanation of the cost implications and how the costs are likely to be
calculated;
 to be kept informed of costs, so that you can work out if a particular course of action
is worth following financially;
 to be kept updated on developments and on progress as work on your matter
proceeds;
 to responses to your letters and telephone calls within a reasonable time;
 to a clear bill which shows the work done and the amounts charged;
 to complain about your attorney if you believe the attorney is acting unethically or in
an unprofessional manner;
 to have the attorneys’ account assessed and taxed if you are of the view that it is too
high; and
 subject to certain conditions, you have the right to cancel your mandate to the
attorney at any stage and consult another attorney.

Come back to page 38 for FICA and practice management when considering whether to
accept a client’s mandate.

Execution of a mandate – rights and duties of an attorney

The relationship between an attorney and his or her client is one of mandate. A contract of
mandate is a consensual contract between one party, the mandator, and another, the
mandatary, in terms of which the mandatary undertakes to perform a mandate for the
mandator. As in any other consensual contract, there must be an offer and an acceptance of
the offer in order for a valid and binding contract of mandate to come into being. In the case
of a contract of mandate, the mandator makes a request that the mandatory performs some
act or duty which obligation the mandatory then accepts and executes.

The relationship between a legal practitioner and their client originates from the mandate
given by the client to the attorney. The relationship exists for as long as the mandate is in
place. If the client terminates the mandate, the legal practitioner has a duty to withdraw as
attorney of record and cannot take any further action purportedly in the pursuit of the
terminated mandate.

It is important that legal practitioners detail the scope and extent of the mandate as an
unclear or open-ended mandate could attract many potential risks for the legal practitioner.
Even where the legal practitioner acts for the particular client in a number of different
matters, it is important that the extent of the mandate in respect of each matter be detailed
separately.

The legal practitioner’s relationship with third parties

It is submitted that whilst legal practitioners owe no general duty of care towards third
parties, general principles of delictual liability would apply.
Such duty arises in circumstances where the legal convictions of society require there to be
such a duty. We submit that such an ethical duty, as distinct from a legal duty, should exist
where an attorney or advocate deals with third parties to ensure that his or her actions or the
information given out are correct and reliable. This means that a legal representative should
not take advantage of the fact that the third party is unrepresented, or ignorant of an
important fact which may jeopardise his or her client’s case or negotiate a transaction whilst
being aware of the fact that the third party may be unaware of his or her rights.

The legal practitioner’s relationship with other legal practitioners

In an adversarial system we can lose sight of the fact that those representing the other side
are, nonetheless, our colleagues and our client is best served when we maintain a good
working relationship with them.

You have a duty to conduct yourself in an honest, reasonable and reliable manner towards
your colleagues because it is of the essence of the legal profession that its members must
be able to rely on each other’s words, whether that word is given by way of an oral promise,
a letter or by way of a formal undertaking.

There is a distinction between a personal undertaking and an undertaking given on behalf of

a client.

Personal undertakings are enforceable against you. Because you cannot be compelled by
anyone to give a personal undertaking, you should normally not give one. You should
certainly not give a personal undertaking unless you have complete control over the subject
matter of the undertaking. Never give a personal undertaking to do something that is
dependent on your client’s co-operation because not all clients are honest and reasonable.

It is a generally accepted principle that it is improper for one legal practitioner, whether
directly or through an employee or agent, to contact the client of another legal practitioner in
a particular matter, without the latter’s consent.

Witnesses

Neither a client nor a legal practitioner has any property in a witness. An attorney is entitled
to interview any person who he or she has reason to believe is in possession of information
which may assist his client in his or her case, and he or she cannot be deprived of this right
by the fact that the other side has subpoenaed or taken a statement from such person. The
other side should, however, be notified of the interview and his or her notification should
precede the interview.

The only restrictions to this right are:

 If litigation has already commenced but the person in question has not yet given
evidence, he or she may not be interviewed until the legal representative of the other
party has received timeous and adequate notice of the proposed interview. Even if
the legal representative objects, this does not prevent the interview from taking place
and the legal representative of the other party is not entitled to be present at the
interview.
 Where the legal action has already commenced and a person has already given
evidence for the opposition in the matter, such person may only be interviewed if the
legal representative of the other side received timeous and adequate notification. In
such event the legal representative of the other side is entitled to be present at the
interview unless he or she has waived such right.

With regard to state witnesses the Constitutional Court has ruled that:
  The rule of practice prohibiting the interviewing of a state witness by an accused or
his legal representative without the permission of the prosecuting authority is
unconstitutional.
 An accused person has a right to consult a state witness without prior permission of
the prosecuting authority in circumstances where his or her right to a fair trial could
be impaired if on the special facts of a particular case the accused cannot properly
obtain a fair trial.
 The accused or his or her representative should in such circumstances approach the
National Prosecuting Authority for consent to hold such consultation. If such consent
is granted, the Attorney-General or such official shall be entitled to be present at such
consultation and to record what transpired. If the consent of the Attorney-General is
refused, the accused is entitled to approach the Court for permission to consult the
relevant witness.
 The right to consult does not entitle an accused person to compel such consultation if
the state witness either declines to be consulted or if it is established on behalf of the
state that there are reasonable grounds to believe that the consultation might lead to
his or her intimidation or to the disclosure of state secrets or the identity of
informants.

The legal practitioner’s relationship with counsel

Bear the following in mind:

 It is an attorney’s duty to provide counsel with full and comprehensive instructions.
The brief must be given in good time.
 The brief must be arranged in a proper manner.
 The attorney controls the case in instances where his or her client elects to brief
counsel to appear in the High Court rather than the attorney him or herself.
 The attorney must attend all consultations as well as the Court proceedings.
 During the hearing the attorney must interfere as little as possible.
 The attorney must ensure that counsel does not communicate with the client directly.
 Only in the most exceptional circumstances should there be deviation from the
general principle that consultations should be held in counsel’s chambers. Attorneys
or competent candidate attorneys should, without exception, always be present when
advocates consult with clients.

The legal practitioner’s relationship with the Court

An attorney can only be admitted to practice by the High Court and only the High Court can
remove or suspend him or her from the Roll. The attorney is accordingly an officer of the
Court and as such he or she has certain duties towards the Court.

Legal practitioners have a duty not to abuse the process of the Court or, by dishonest
means, to hamper opponents in the conduct of their case.

The legal practitioner’s first duty is towards the Court and public and not his or her client.

The duty of absolute honesty and integrity to the Court precludes not only deliberate lies but
also misleading statements.

Relationship with Court officials

Always be courteous to Court officials, irrespective of their seniority.

The legal practitioner’s relationship with the public

The comments by the late Justice Chaskalson further reminded the delegates present that
the profession has an obligation to conduct its affairs in a manner consistent with the public
interest. The duties owed to clients to act without fear or favour, to the Court to act
honourably, and generally to observe high professional standards, are important parts of the
profession’s responsibility to the public.

The general public has a right of access to the law and accordingly every individual attorney
and the attorney’s profession as a whole has a duty to provide accessible legal services.

The legal practitioner’s relationship with the state

What constitutes unprofessional conduct insofar as civil disobedience is concerned has

resulted in some diverse judgments in the past.

Where the legal practitioner was convicted of treason, it was held that the inherent character
of an offence, particularly a common law one, is not altered by virtue of the fact that the
motive for its commission was political; the motive which prompted the commission of the
offence was not entirely unrelated to the practitioner’s fitness to practise as an attorney – he
had not renounced the acts of sabotage and still regarded them as the only effective method
of protest. Accordingly, the acts perpetrated were dishonourable and morally reprehensible
which disqualified the practitioner from continuing to practise as an attorney.

 Legal Practice Act 28 of 2014 sections 33 to 35

33. Authority to render legal services

(1) Subject to any other law, no person other than a practising legal practitioner who has
been admitted and enrolled as such in terms of this Act may, in expectation of any
fee, commission, gain or reward –
(a) appear in any court of law or before any board, tribunal or similar institution in
which only legal practitioners are entitled to appear; or
(b) draw up or execute any instruments or documents relating to or required or
intended for use in any action, suit or other proceedings in a court of civil or
criminal jurisdiction within the Republic.
(2) No person other than a legal practitioner may hold himself or herself out as a legal
practitioner or make any representation or use any type or description indicating or
implying that he or she is a legal practitioner.
(3) No person may, in expectation of any fee, commission, gain or reward, directly or
indirectly, perform any act or render any service which in terms of any other law may
only be done by an advocate, attorney, conveyancer or notary, unless that person is
a practising advocate, attorney, conveyancer or notary, as the case may be.
(4) A legal practitioner who is struck off the Roll or suspended from practice may not –
(a) render services as a legal practitioner directly or indirectly for his or her own
account, or in partnership, or association with any other person, or as a
member of a legal practice; or
(b) be employed by, or otherwise be engaged, in a legal practice without the prior
written consent of the Council, which consent may not be unreasonably
withheld, and such consent may be granted on such terms and conditions as
the Council may determine.

34. Forms of legal practice

(1) An attorney may render legal services in expectation of any fee, commission, gain, or
reward as contemplated in this Act or any other applicable law, upon receipt of a
request directly from the public for that service.
(2) .
 (a) An advocate may render legal services in expectation of a fee, commission,
gain or reward as contemplated in this Act or any other applicable law –
(i) upon receipt of a brief from an attorney; or
(ii) upon receipt of a request directly from a member of the public or from a
justice centre for that service, subject to paragraph (b).
(b) An advocate contemplated in paragraph (a)(ii) may only render those legal
services rendered by advocates before the commencement of this Act as
determined by the Council in the rules, if he or she –
(i) is in possession of a Fidelity Fund certificate and conducts his or her
practice in accordance with the relevant provisions of Chapter 7, with
particular reference to sections 84, 85, 86 and 87;
(ii) has notified the Council thereof in terms of section 30(1)(b)(ii).
(c) An advocate may render legal services in criminal or civil matters in
expectation of a fee, commission, gain or reward as contemplated in this Act
or any other applicable law upon receipt of a request directly from a justice
centre for that service, in which event the provisions of paragraph (b) do not
apply.
(3) The Council must make rules relating to the briefing of advocates –
(a) by attorneys; and
(b) directly by members of the public.
(4) The Council must make rules relating to the instruction of attorneys.
(5) Attorneys may only practise –
(a) for their own account;
(b) as part of a commercial juristic entity referred to in subsection (7) and as
such, may only make over to, share or divide any portion of their professional
fee whether by way of partnership, commission, allowance, or otherwise with
an attorney;
(c) as part of a law clinic established in terms of subsection (8);
(d) as part of Legal Aid South Africa; or
(e) as an attorney in the full-time employment of the State as a state attorney or
the South African Human Rights Commission.
(6) Advocates may only practise –
(a) for their own account and as such may not make over to, share or divide any
portion of their professional fee whether by way of partnership, commission,
allowance or otherwise;
(b) as part of a law clinic established in terms of subsection (8);
(c) as part of Legal Aid South Africa; or
(d) as an advocate in the full-time employment of the State as a state advocate or
the South African Human Rights Commission.
(7) A commercial juristic entity may be established to conduct a legal practice provided
that, in terms of its founding documents –
(a) its shareholding, partnership or membership as the case may be, is
comprised exclusively of attorneys;
(b) provision is made for legal services to be rendered only by or under the
supervision of admitted and enrolled attorneys; and
(c) all present and past shareholders, partners or members, as the case may be,
are liable jointly and severally together with the commercial juristic entity for –
(i) the debts and liabilities of the commercial juristic entity as are or were
contracted during their period of office; and
(ii) in respect of any theft committed during their period of office.
(8) .
(a) Subject to the approval of the Council in terms of the rules, a law clinic may
be established by –
 (i) a non-profit juristic entity registered in terms of the Non-profit
Organisations Act, 1997 (Act No. 71 of 1997), to conduct a legal
practice if, in terms of its founding documents –
(aa) the majority of its members of its governing body is
comprised of legal practitioners; and
(bb) upon its winding-up, dissolution or voluntary deregistration,
any asset remaining after all liabilities have been met, are
transferred to another non-profit organisation having similar
objectives to it; or
(ii) any university in the Republic if it is constituted and governed as part of
the faculty of law at that university,
and is subject to the provisions of paragraphs (b) and (c).
(b) A law clinic referred to in paragraph (a) –
(i) may only render legal services if those services are rendered by or
under the supervision of attorneys;
(ii) may not make over to, share or divide any portion of its professional fee
whether by way of partnership, commission, allowance or otherwise;
(iii) may not distribute any of its income or property to its members,
governors or employees, except as reasonable compensation for
services rendered;
(iv) may only engage candidate legal practitioners if it complies with the
requirements determined by the Council in the rules; and
(v) may not render those legal services determined by the Council in the
rules.
(c) Legal services rendered by a law clinic referred to in paragraph (a) –
(i) must be accessible to the public; and
(ii) must, subject to section 92, be rendered to the recipient of those
services free of charge, except that the law clinic may recover any
amounts actually disbursed on behalf of the recipient of the services.
(9) The Council must, within two years after the commencement of Chapter 2 of this Act,
investigate and make recommendations to the Minister on –
(a) the creation of other forms of legal practice, including –
(i) limited liability legal practices;
(ii) multi-disciplinary practices; and
(b) the statutory recognition of paralegals,
taking into account best international practices, the public interest and the interests of
the legal profession, with the view to legislative and other interventions in order to
improve access to the legal profession and access to justice generally.

35. Fees in respect legal services

(1) Until the investigation contemplated in subsection (4) has been completed and the
recommendations contained therein have been implemented by the Minister, fees in
respect of litigious and non-litigious legal services rendered by legal practitioners,
juristic entities, law clinics or Legal Aid South Africa referred to in section 34 must be
in accordance with the tariffs made by the Rules Board for Courts of Law established
by section 2 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985).
(2) The Rules Board for Courts of Law must, when determining the tariffs as
contemplated in subsection (1), take into account –
(a) the importance, significance, complexity and expertise of the legal services
required;
(b) the seniority and experience of the legal practitioner concerned, as
determined in this Act;
(c) the volume of work required and time spent in respect of the legal services
rendered; and
(d) the financial implications of the matter at hand.
(3) Despite any other law to the contrary, nothing in this section precludes any user of
litigious or non-litigious legal services, on his or her own initiative, from agreeing with
a legal practitioner in writing, to pay fees for the services in question in excess of or
below any tariffs determined as contemplated in this section.
(4) The South African Law Reform Commission must, within two years after the
commencement of Chapter 2 of this Act, investigate and report back to the Minister
with recommendations on the following:
(a) The manner in which to address the circumstances giving rise to legal fees
that are unattainable for most people;
(b) legislative and other interventions in order to improve access to justice by the
members of the public;
(c) the desirability of establishing a mechanism which will be responsible for
determining fees and tariffs payable to legal practitioners;
(d) the composition of the mechanism contemplated in paragraph (c) and the
processes it should follow in determining fees or tariffs;
(e) the desirability of giving users of legal services the option of voluntarily
agreeing to pay fees for legal services less or in excess of any amount that
may be set by the mechanism contemplated in paragraph (c); and
(f) the obligation by a legal practitioner to conclude a mandatory fee
arrangement with a client when that client secures that legal practitioner’s
services.
(5) In conducting the investigation referred to in subsection (4), the South African Law
Reform Commission must take the following into consideration:
(a) Best international practices;
(b) the public interest;
(c) the interests of the legal profession; and
(d) the use of contingency fee agreements as provided for in the Contingency
Fees Act, 1997 (Act No. 66 of 1997).
(6) The Minister may by notice in the Gazette determine maximum tariffs payable to
legal practitioners who are instructed by any State Department or Provincial or Local
Government in any matter.
(7) When any attorney or an advocate referred to in section 34(2)(b) first receives
instructions from a client for the rendering of litigious or non-litigious legal services,
or as soon as practically possible thereafter, that attorney or advocate must provide
the client with a cost estimate notice, in writing, specifying all particulars relating to
the envisaged costs of the legal services, including the following:
(a) The likely financial implications including fees, charges, disbursements and
other costs;
(b) the attorney’s or advocate’s hourly fee rate and an explanation to the client of
his or her right to negotiate the fees payable to the attorney or advocate;
(c) an outline of the work to be done in respect of each stage of the litigation
process, where applicable;
(d) the likelihood of engaging an advocate, as well as an explanation of the
different fees that can be charged by different advocates, depending on
aspects such as seniority or expertise; and
(e) if the matter involves litigation, the legal and financial consequences of the
client’s withdrawal from the litigation as well as the costs recovery regime.
(8) Any attorney or an advocate referred to in section 34(2)(b) must, in addition to
providing the client with a written cost estimate notice as contemplated in subsection
(7), also verbally explain to the client every aspect contained in that notice, as well
as any other relevant aspect relating to the costs of the legal services to be
rendered.
(9) A client must, in writing, agree to the envisaged legal services by that attorney or
advocate referred to in section 34(2)(b) and the incurring of the estimated costs as
set out in the notice contemplated in subsection (7).
 (10)Non-compliance by any attorney or an advocate referred to in section 34(2)(b) with
the provisions of this section constitutes misconduct.
(11)If any attorney or an advocate referred to in section 34(2)(b) does not comply with
the provisions of this section, the client is not required to pay any legal costs to that
attorney or advocate until the Council has reviewed the matter and made a
determination regarding amounts to be paid.
(12)The provisions of this section do not preclude the use of contingency fee agreements
as provided for in the Contingency Fees Act, 1997 (Act No. 66 of 1997).

 Ethical consequences of prescription

What does prescription mean?

Prescription is a rule of law that is designed to bring finality to disputes. It is regulated

by the Prescription Act 68 of 1969.

A debt, which is described as the payment of money or delivery of goods or services, will
prescribe after the lapse of a certain time period.
This means that the claimant will not be able to issue a claim once the time period has
lapsed.

What are the consequences of prescription?

The debtor will not be liable to the creditor for a debt, or the creditor may not institute
legal action against the debtor for a debt.

When does prescription commence?

According to sections 12(1) and (2) of the Act, prescription will run as soon as the
debt is due (i.e. a debt is due once the creditor can identify the debtor and the facts
from which the debt arises)

What are the extinctive periods provided by the Act?

30 years in respect of:

 any debt secured by a mortgage bond
 any judgment debt
 any debt in respect of tax
 debts owed to the state in respect of any share of profits, royalties or any similar
consideration payable in respect of rights to mine minerals

15 years in respect of:

 any debt owed to the State and arising out of a loan of money or sale or lease of land
by the State to a debtor

6 years in respect of:

 any debt arising from a negotiable instrument such as a cheque or a notarial contract

3 years in respect of:

 any other debt, such as contractual or delictual debts

When will prescription be delayed?

According to section 13(1) of the Act, prescription will be delayed when:

 the creditor is a minor, insane or a person under curatorship;
 the debtor is at that time outside the Republic;
  the creditor and debtor are married to each other;
 the creditor and the debtor are partners and the debt arose out of the partnership
relationship;
 the creditor is a juristic person and the debtor is a member of the governing body of
such juristic person;
 the debt is the object of a dispute in arbitration;
 the executor of either the debtor’s or the creditor’s estate (either in the case of a
debtor or a creditor) has not yet been appointed;
 the debt is the object of a claim filed against the estate of a debtor who is deceased
or against the insolvent estate of the debtor.

Prescription can be interrupted in two ways:

(1) By the debtor’s express or tacit acknowledgment of his or her liability.
(2) By means of judicial interruption. This means that the prescription will be interrupted
by the service on the debtor of any process whereby the creditor claims payment of
the debt.

Question 1: A client instructs you to issue Summons on a claim that has clearly prescribed.
What do you advise the client and what is your own position?

Answer: It is proper to issue Summons provided that the client has been fully informed of
the risks of an adverse order for costs if the Defendant raises prescription as a special plea.
Any payment may be received and judgment by default may be taken.

Question 2: A has various claims on which it seems inevitable that he will have to issue
Summons. He is uncertain whether he should: (a) issue Summons before he leaves and
prosecute the claims only after he returns; or (b) sue only after he returns, thereby running
the risk of prescription.

Draft a letter to A explaining:

3.1 The effect of extinctive prescription on a claim/debt.

3.2 The periods that apply to the most common claims.
3.3 What the risks are if Summons is issued on a claim which has prescribed.
3.4 What the effect on current civil litigation would be in the Magistrates’ Court if he does
not take any steps for a year after issuing Summons; for a year after service of
Summons; for a year after obtaining judgment and if any adverse effects can be
counteracted.
3.5 How are periods (days or months) calculated in terms of Rules of Court and the
Interpretation Act respectively.

Answer:

3.1 If a claim/debt has prescribed it still exists as a natural obligation but it becomes
unenforceable.
3.2 The normal prescription period is 3 years but 6 years in respect of claims arising from
a negotiable instrument or a notarial bond.
3.3 If Summons is issued only after prescription the consequences are –
(1) it is not unprofessional to sue, provided that
(2) the client has been informed of the implications, viz that
(3) while any payment by the debtor may lawfully be received; and
(4) the presiding officer may not mero motu raise the issue of prescription;
(5) the debtor may raise a special plea of prescription which is likely to succeed;
 (6) probably resulting in an order for costs against the Plaintiff, but which costs will
be relatively low if the Plaintiff withdraws their claim on receipt of the special
plea.
3.4 If A should issue Summons and be unable to prosecute the matter, the consequences
are that –
(1) the Summons will lapse if it is not served within a year of issue;
(2) the Summons also lapses if the Plaintiff takes no steps within a year of service;
(3) judgment remains valid for 30 years.

Under Rule 10 the Plaintiff may apply before the year expires for extension on affidavit if the
Defendant has requested extension. If the Summons has lapsed the Plaintiff may apply
under Rule 60 for the revival of the Summons subject to an order for costs.

3.5 The Rules of Court (Magistrates’ Court Rule 2.2; High Court Rule 1) provide that
Saturdays, Sundays and public holidays shall not be reckoned unless the contrary
appears. Through interpretation this has been taken to apply only to a period of days.
The Interpretation Act (section 2) provides that the first day is excluded but the last
day is included in calculating a period of days unless the last day is a Sunday or
public holiday in which case one excludes the first day and every Sunday and public
holiday. A month is defined as a calendar month (section 4).

Question 2: A client requires you to collect a debt which on the face of the documents has
prescribed. What questions will you ask the client to be sure that the claim has prescribed?
How do you explain to the client: the effects of prescription; whether you may proceed; the
risk involved; and the best practical approach?

Answer: I will enquire whether the debtor has acknowledged liability, has been overseas or
whether the creditor has been in a position which interrupts or stays prescription. I will
explain that while payments may be received, legal action can be resisted by a special plea.
It is often well worth proceeding with a letter of demand and Summons. If the plea is raised
the creditor can withdraw while costs are still limited.

The next questions deal with the situation where your client’s claim has become prescribed
due to your negligence. They deal with the practical and ethical responsibilities of an
attorney in such an event.

Question 1: An attorney allows a claim to prescribe. What steps must be taken to:
6.1 Protect his client.
6.2 Protect himself.

6.1 The attorney must advise his client in writing that the claim has become prescribed.
He must, however, not admit to negligence as this may vitiate his rights under his
professional indemnity policy and the master policy issued by the Attorneys Indemnity
Insurance Fund. The attorney must also advise his client to consult another attorney
regarding the original claim and the prescription.

6.2 In order to protect himself the attorney must, immediately after he realises that the
claim has prescribed, advise his professional indemnity insurer and the Attorneys
Indemnity Insurance Fund of the potential claim. If a normal demand or Summons is
received, this must also be handed to the insurer(s).

Question 2: You act for a client in a motor vehicle accident claim and you inadvertently allow
the matter to prescribe. Describe briefly what advice you would give your client after this has
come to your attention.
Answer: You must be absolutely honest with your client about the facts and in particular that
the claim had prescribed. You must inform your client immediately after you had become
aware thereof. You will advise your client to seek independent advice in respect of a possible
claim against you and if necessary will assist him in obtaining such advice. It is, however, not
expected of you to admit liability as this may prejudice your professional indemnity
insurance. You should also report the matter to your insurer at once.

Question 3: You negligently allow a claim for damages to prescribe. What is the effect of
prescription? What should you advise your client, and what can you do in regard to your own
position? Alternative question: Colleague D enquires from you how he should act having
just discovered that he has negligently allowed a good claim for damages of his client to
prescribe. Advise him fully.

Answer: The claim has “extinguished” and becomes unenforceable. Payments may validly
be received, but a Summons is open to a special plea. I will advise my client to seek
independent advice but I do not admit liability. I will inform the Attorneys Indemnity Insurance
Fund immediately and my own insurers. I will pay the excess/deductible. I do not have to
inform the Law Society but must respond to any complaints.

Question 4: How do you enforce the rights of a person whose attorney has negligently
allowed a damages claim to prescribe?

Answer: a person who believes (they will usually have been informed) that their attorney
has allowed their claim to prescribe should be advised to:
1. Terminate the mandate, collect their file from the negligent attorney to have their position
assessed by the new attorney.
2. Instruct their new attorney to send a letter of demand to the previous attorney.
3. Inform the Legal Practice Council in their region of the claim.
4. Await an approach from the attorneys for the Legal Practitioners Insurance Indemnity
Fund who are likely to seek a settlement.
5. If there is undue delay, issue Summons against the negligent attorney for damages.
6. Consider any offers of payment for settlement from either the attorney themselves or the
Legal Practitioners Insurance Indemnity Fund, taking into account any contributory
negligence.

The next questions test whether you can write a letter explaining your or another attorney’s
responsibilities in a case where a claim has become prescribed under your watch or your
colleague’s watch.

Question 1: You negligently permit a damages (not personal injuries) claim to prescribe.
Your partner who is overseas requests you to explain what you did on discovering the
problem and what the client’s and your own rights are if it is assumed that the claim was
good for R200 000.00. Draft a letter to your partner responding to his enquiry dealing with
your firm’s position vis a vis the client and the firm’s potential liability.

Answer:

Dear Partner

On discovering that the claim of A had prescribed due to our negligence I called A and
informed her of the position. While not admitting liability I advised her to consult another
attorney to assert her rights. As you know we cannot continue to act in this matter (e.g. by
taking the chance that the Defendant will not raise a plea of prescription). The client will no
doubt get his new attorney to send us a letter of demand which I shall pass on to the
Attorney Indemnity Fund. We are covered for amounts in excess of R200 000.00 and should
be out of pocket in the worst case by no more than the excess payment of R20 000.00. I
understand that the Attorneys Indemnity Insurance Fund normally instruct their own
attorneys to handle the matter and either to defend or settle same as they may be advised in
consultation with us.

Question 2: (Very similar to the previous question, however, with a slight and subtle
difference.) You are a recently qualified attorney. You have purchased a small practice from
AB who was known to have wanted to retire. AB indemnified you against claims arising
before you took over. All employees agree to remain and all clients agree to your taking over
their mandates. How would (should) you deal with the following issues and situations?

AB seems not to have been very diligent lately. You discover a file in which he negligently
allowed a good claim to prescribe. Write to AB telling him how you handled the problem,
what you expect the client to do and what you will then do.

Answer:

Dear AB

On discovering that the claim of X had prescribed due to our negligence I called X and
informed him of the position. While not admitting liability I advised him to consult another
attorney to assert his rights.

As you know, we cannot continue to act in this matter (e.g. by taking the chance that the
Defendant will not raise a plea of prescription). The client will no doubt get his new attorney
to send us a letter of demand which I shall pass on to the Attorney Indemnity Insurance
Fund.

We are covered for amounts up to R1 million and should be out of pocket in the worst case
by no more than the excess payment of R20 000.00. I understand that the Attorney
Indemnity Insurance Fund normally instructs their own attorneys to handle such matters and
to either defend or settle same as they may be advised in consultation with us. We need to
discuss the R20 000.00.

Question 3: Mrs B has received from attorney Z a letter informing her that a claim they were
handling on her behalf has prescribed in their hands. Explain to her what her remedies are
and also what Z attorneys can and must do in these circumstances.

Answer:

Dear Mrs B

The attorney should have called you and informed you that the claim has prescribed and that
you should obtain independent advice on your position (without admitting liability). He cannot
continue to act in respect of the prescribed claim (e.g. by suing and taking the chance that
the debtor will not raise prescription). We shall send him a letter of demand for the amount of
your claim which is now probably lost. He will pass it on to the Attorneys Indemnity Insurance
Fund which covers him for amounts over R20 000.00 and below about R1 million. If the
matter is not resolved satisfactorily you have every right to sue the attorney for damages on
the basis of professional negligence.

 The Legal Practice Council Code of Conduct in terms of section 36(1) of the
Legal Practice Act, in particular:

o Part I: Definitions
1. In this code, unless the context otherwise indicates:
1.1. “the Act” means the Legal Practice Act 28 of 2014;
1.2. “advocate” means a legal practitioner who is admitted and enrolled as such
under the Act;
1.3. “attorney” means a legal practitioner who is admitted and enrolled as such
under the Act;
1.4. “branch office” means an office at or from which the firm practises, but which
is not a main office;
1.5. “candidate attorney” means a person undergoing practical vocational training
with a view to being admitted and enrolled as an attorney;
1.6. “candidate legal practitioner” means a person undergoing practical vocational
training, either as a candidate attorney or as a pupil;
1.7. “chambers” means premises suitable for the practice of an advocate;
1.8. “code of conduct” or “code” means this code;
1.9. “conveyancer” means any practising attorney who is admitted and enrolled to
practice as a conveyancer in terms of the Act;
1.10. “Council” means the South African Legal Practice Council established in terms
of section 4 of the Act;
1.11. “counsel” means an advocate referred to in section 34(2)(a)(i) of the Act;
1.12. “court” means any court in the Republic as defined in section 166 of the
Constitution of the Republic;
1.13. “disciplinary body” means –
1.13.1. an investigating committee;
1.13.2. a disciplinary committee; or
1.13.3. an appeal tribunal.
1.14. “Fidelity Fund Certificate” means the certificate referred to in section 85 of the
Act;
1.15. “firm” means –
1.15.1. a partnership of attorneys;
1.15.2. an attorney practising for his or her own account; or
1.15.3. a juristic entity who or which in each case conducts the practice of an
attorney;
1.16. “Fund” means the Legal Practitioners’ Fidelity Fund referred to in section 53 of
the Act;
1.17. “High Court” means the High Court of South Africa established by section 6 of
the Superior Courts Act, 10 of 2013 or, if the context indicates otherwise, the
Division thereof having jurisdiction;
1.18. “juristic entity” means a commercial juristic entity established to conduct a
legal practice as an attorney, as contemplated in section 34(7) of the Act and a
limited liability legal practice as contemplated in section 34(9) of the Act;
1.19. “legal practitioner” means an advocate or attorney admitted and enrolled as
such in terms of sections 24 and 30 respectively of the Act;
1.20. “main office” means the premises at and from which the practice of a firm is as
a whole administered and controlled, including such premises in two or more
buildings situated in sufficiently close proximity to one another to allow the
administration of that practice as a single composite entity, and includes
premises declared or determined as such in terms of accounting rules 54.2 or
54.5, as the case may be;
1.21. “Minister” means the Minister of Justice and Correctional Services;
1.22. “notary” means any practising attorney who is admitted and enrolled to
practise as a notary in terms of this Act;
1.23. “private practice” means the practice of a legal practitioner who places legal
services at the disposal of the public for reward and is actively engaged in the
profession either as an attorney or as an advocate, or the practice of a legal
 practitioner as contemplated in sections 34(5)(c), (d) or (e) or section 34(6)(b),
(c) or (d), and “practise” has a corresponding meaning; and for purposes of this
definition –
1.23.1. attorneys referred to in sections 34(5)(c), (d) and (e) of the Act will be
regarded as being attorneys in private practice;
1.23.2. advocates referred to in sections 34(6)(b), (c) and (d) will be regarded
as being advocates in private practice;
1.24. “pupil” means a person undergoing practical vocational training with a view to
being admitted and enrolled as an advocate;
1.25. “Republic” means the Republic of South Africa;
1.26. “roll” means the roll of legal practitioners referred to in section 30(3) of the Act;
1.27. “rules” means the rules made in terms of the Act;
1.28. “trust account practice” means a practice conducted by –
1.28.1. one or more attorneys who are; or
1.28.2. an advocate referred to in section 34(2)(b) of the Act who is, in terms
of the Act, required to hold a Fidelity Fund certificate.
1.29. Words or expressions referred to in this code which are not defined shall bear
the respective meanings assigned to them by section 1 of the Act.

o Part II: Code of Conduct: General Provisions

 2A: Misconduct

2A Misconduct
Misconduct on the part of a legal practitioner, candidate legal practitioner or juristic entity will
include (without limiting the generality of these Rules) –
2A.1 a breach of the Act or of the code or of any of the rules, or a failure to comply with the
Act or the code or any rule with which it is the legal practitioner’s, candidate legal
practitioner’s or juristic entity’s duty to comply;
2A.2 any conduct which would reasonably be considered as misconduct on the part of a
legal practitioner, candidate legal practitioner or juristic entity or which tends to bring
the legal profession into disrepute.

 3: Legal practitioners, candidate legal practitioners, and juristic

entities shall – (3.1 – 3.18.4)

3. Legal practitioners, candidate legal practitioners and juristic entities shall –

3.1. maintain the highest standards of honesty and integrity;
3.2. uphold the Constitution of the Republic and the principles and values enshrined
in the Constitution, and without limiting the generality of these principles and
values, shall not, in the course of his or her or its practice or business activities,
discriminate against any person on any grounds prohibited in the Constitution;
3.3. treat the interests of their clients as paramount, provided that their conduct
shall be subject always to:
3.3.1. their duty to the court;
3.3.2. the interests of justice;
3.3.3. observance of the law; and
3.3.4. the maintenance of the ethical standards prescribed by this code, and
any ethical standards generally recognised by the profession;
3.4. honour any undertaking given by them in the course of their business or
practice, unless prohibited by law;
3.5. refrain from doing anything in a manner prohibited by law or by the code of
conduct which places or could place them in a position in which a client’s
interests conflict with their own or those of other clients;
3.6. maintain legal professional privilege and confidentiality regarding the affairs of
present or former clients or employers, according to law;
3.7. respect the freedom of clients to be represented by a legal practitioner of their
choice;
3.8. account faithfully, accurately and timeously for any of their clients’ money which
comes into their possession, keep such money separate from their own money,
and retain such money for only as long only as is strictly necessary;
3.9. retain the independence necessary to enable them to give their clients or
employers unbiased advice;
3.10. advise their clients at the earliest possible opportunity on the likely success of
such clients’ cases and not generate unnecessary work, nor involve their clients
in unnecessary expense;
3.11. use their best efforts to carry out work in a competent and timely manner and
not take on work which they do not reasonably believe they will be able to carry
out in that manner;
3.12. be entitled to a reasonable fee for their work, provided that no legal practitioner
shall fail or refuse to carry out, or continue, a mandate on the ground of non-
payment of fees and disbursements (or the provision of advance cover
therefor) if demand for such payment or provision is made at an unreasonable
time or in an unreasonable manner, having regard to the particular
circumstances.
3.13. remain reasonably abreast of legal developments, applicable laws and
regulations, legal theory and the common law, and legal practice in the fields in
which they practise;
3.14. behave towards their colleagues, whether in private practice or otherwise,
including any legal practitioner from a foreign jurisdiction, and towards
members of the public, with integrity, fairness and respect and without unfair
discrimination, and shall avoid any behaviour which is insulting or demeaning;
3.15. refrain from doing anything which could or might bring the legal profession into
disrepute;
3.16. unless exempted therefrom, pay promptly to the Council or any organ of the
Council, or to the Fund, all amounts which are legally due or payable in respect
of fees, charges, levies, subscriptions, penalties, fines or any other amounts of
whatsoever nature levied on legal practitioners, candidate legal practitioners or
juristic entities in terms of any powers arising under the Act or the rules;
3.17. Unless exempted from compliance on good cause shown, and if they have not
already done so, shall within 60 days of the taking effect of the amendment to
the Code of Conduct by which this paragraph was introduced, notify the
Council in writing (an email to the Council’s published email address shall
suffice as written notice) of their present existing practice physical address,
email address, landline number and cell phone number (“their contact details”)
on the basis that their physical address and email address shall, jointly and
severally, serve as their appointed domicilium citandi et executandi, and they
shall, in writing, within 30 days of any change to any of their contact details,
notify the Council of any such change. The Council shall be entitled to send any
written communication to the said domicilium address/es, and such
communication shall be deemed (on the basis of a rebuttable presumption the
onus in respect of which rests on the addressee), if sent to the physical
address, to have been received within 10 days of posting and, if sent to the e-
mail address, to have been received within 48 hours of transmission.
3.18. .
3.18.1. shall within a reasonable time reply to all communication that requires
an answer;
3.18.2. shall respond timeously and fully to requests from the Council for
information and/or documentation which he or she is able to provide;
 3.18.3. shall comply timeously with directions from the Council; and
3.18.4. shall refrain from doing anything that may hamper the ability of the
Council to carry out its functions.

 7: Approaches and publicity

7. Approaches and publicity

7.1. For purposes of Part II of this code:
7.1.1. “publicity” shall include any direct or indirect reference to a legal
practitioner or firm, published or disseminated by any written, pictorial
or oral means, in any medium (including electronic and social media),
irrespective of whether such publicity or reference:
[Link]. is made in connection with any sponsorship, patronage,
welfare activity, other similar benevolent purpose or support
in any cause; or
[Link]. is made, or is paid for, at the instance, or with the knowledge
or consent, of the legal practitioner or firm; or
[Link]. appears, or is contained, in any editorial, advertorial or
advertisement and “publicise” has a corresponding
meaning.
7.2. Legal practitioners shall ensure that all written and oral approaches (including
letterheads) to clients, or potential clients, and all publicity, including the offering
of services by publicity, made or published by or on behalf of a legal
practitioner:
7.2.1. are made in a manner which does not bring the legal profession into
disrepute;
7.2.2. are not offensive or inappropriate or do not constitute conduct which is
in bad faith, unreasonable or unfair in respect of a matter in which
another legal practitioner has already received instructions;
7.2.3. do not misrepresent the nature of the service offered;
7.2.4. accord in every respect with the requirements of this paragraph;
7.2.5. do not misrepresent, disparage, compare, criticise the quality of or
claim to be superior to, the service provided by any other legal
practitioner, whether or not such other legal practitioner is identified;
7.2.6. do not refer to a client by name in any publicity or advertisement
published by or on behalf of a legal practitioner unless:
[Link]. the prior written consent of the client had been obtained; or
[Link]. the advertisement relates solely to the sale or letting of a
client’s property.
7.3. Legal practitioners’ responsibilities set out in paragraph 7.2 cannot be
delegated. Where a legal practitioner or a firm becomes aware of publicity
referring to him or her or it which is in conflict with or infringes this paragraph 6,
he or she or it shall immediately take appropriate steps reasonably necessary
to have the publicity rectified or withdrawn and to further publish the
rectification in the same medium or media as that in which the conflicting or
infringing publicity appeared

 8: Specialisation and expertise

8. Specialisation and expertise

Legal practitioners may, on the basis of specialised qualifications or experience –
8.1. advertise or hold themselves out as being specialists or as offering specialist
services, provided that if a legal practitioner claims specialisation or expertise in
any branch of the law, the Council may:
 8.1.1. require the legal practitioner to show good cause by a specified date
why he or she should not be ordered by the Council to cease to hold
himself or herself out as a specialist or as expert in any particular
branch of the law;
8.1.2. order him or her to cease holding himself or herself out as a specialist
or expert in the branch of the law concerned if it is the opinion of the
Council that the claim is not justified; and
8.1.3. declare that such order shall serve as notice in terms of the rules
relating to disciplinary procedures without in any way limiting the
Council’s powers in terms of those rules;
8.2. be accorded senior counsel or senior attorney status in accordance with criteria
and procedures prescribed by the Council

 9: Integrity in performance of professional services

9. Integrity in performance of professional services

9.1. A legal practitioner and a firm shall take reasonable steps to avoid and prevent
any reasonable suspicion arising that his, her, or its integrity is compromised in
any respect.
9.2. A legal practitioner shall not, in giving advice to a client, advise conduct that
would contravene any law; more particularly, a legal practitioner shall not
devise any scheme which involves the commission of any offence.
9.3. A legal practitioner may give advice about whether any act, omission or course
of conduct may contravene any law.
9.4. Whenever a legal practitioner performs any act in a personal capacity, which is
ostensibly of a professional nature, he or she shall not permit any confusion to
exist on the part of any interested person about whether he or she acts in a
personal or professional role or both.
9.5. Whenever a client charged with an offence confesses at any time to a legal
practitioner that the client is guilty of the offence, the legal practitioner must at
once explain to that client that the future conduct of the matter shall be subject
to these strictures:
9.5.1. the legal practitioner shall not assert or imply any fact, or permit the
assertion or implication of any fact, which he or she knows to be
untrue, nor shall he or she connive to substantiate a falsehood;
9.5.2. the legal practitioner shall not put forward any affirmative case
inconsistent with the confession of the client;
9.5.3. the legal practitioner may argue that the evidence adduced to support
the charge is insufficient to justify a conviction;
9.5.4. the legal practitioner may invoke or assert any point of law that might
be of advantage to a resistance to a conviction;
9.5.5. the client may choose to retain the legal practitioner on the basis set
out or choose to relieve the legal practitioner of the brief.
9.6. A legal practitioner shall, when a client gives conflicting instructions, or attempts
to retract earlier instructions, withdraw from the matter if continuing to act for
the client would cause unavoidable embarrassment to the legal practitioner.
9.7. A legal practitioner shall in the composition of pleadings and of affidavits rely
upon the facts given to him or her by the instructing attorney or client, as the
case may be, and in so doing:
9.7.1. shall not gratuitously disparage, defame or otherwise use invective;
9.7.2. shall not recklessly make averments or allegations unsubstantiated by
the information given to the legal practitioner.
9.8. A legal practitioner who is briefed to prepare a document articulating the
reasons relied upon by any entity or person whose decision is being reviewed
or subjected to administrative appeal, must scrupulously express the reasons,
 as instructed, and must not distort their meaning by the manner of formulation
or by the addition or subtraction of additional material.
9.9. A legal practitioner shall, in giving any advice about the prospects of success in
any matter, give a true account of his or her opinion and shall not pander to a
client’s whims or desires. However, in any matter in which the legal
practitioner’s opinion is adverse to the prospects of success, the legal
practitioner may upon client’s insistence place before a court the client’s case
for the adjudicating officer to decide the matter and the legal practitioner shall
advance that case as best as circumstances allow.
9.10. Legal practitioners shall not abuse their positions of influence over clients by
undue pressure upon them to:
9.10.1. plead guilty or plead guilty to a lesser charge;
9.10.2. accept a settlement of a matter.

o Part III: Conduct of Attorneys

 12: Sharing of fees

12. Sharing of fees

12.1. An attorney or a firm shall not, directly or indirectly, enter into any express or
tacit agreement, arrangement or scheme of operation or any partnership
(express, tacit or implied), the result or potential result whereof is to secure for
him or her or it the benefit of professional work, solicited by a person who is not
an attorney, for reward, whether in money or in kind; but this prohibition shall
not in any way limit bona fide and proper marketing activities.
12.2. An attorney shall furnish the Council with an affidavit, within seven days of
request, explaining the presence and function or position of an employee and
manner or form of remuneration earned by such employee, or containing
similar information relating to any person who is not an attorney who is
apparently associated with the attorney’s practice or who is continuously or
repeatedly in, at or about the attorney’s office.
12.3. An attorney may not hold himself or herself out as practising as an attorney
while in the employ of a person who is not an attorney otherwise than as
permitted in terms of section 34 of the Act.

 13: Sharing of offices

13. Sharing of offices

An attorney, other than an attorney referred to in section 34(5)(c), (d) and (e) of the Act,
may not, without the prior written consent of the Council, share offices with a person
who is not an attorney or an employee of an attorney or a trust account advocate.

 18: Specific provisions relating to conduct of attorneys (18.1 –

18.22)

18. Specific provisions relating to conduct of attorneys

An attorney shall –
18.1. refrain from accepting from any person directly or indirectly any sum of money
or financial reward which it is agreed or intended should be used as payment or
part payment for services to be rendered or for disbursements to be made in
the future in the event of any future act or omission forming the basis of any
criminal charge against the person by or for whose benefit such payment was
made;
18.2. issue and, on request, hand over or otherwise deliver to the person making
payment, a receipt for any money received;
18.3. exercise proper control and supervision over his or her staff and offices;
18.4. not abandon his or her practice;
18.5. not close his or her practice without prior written notice to the Council and to his
or her clients and without arranging with the clients for the dispatch of their
business or the care of their property in his or her possession or under his or
her control;
18.6. if he or she is practising as a sole practitioner, and intends to be absent from
his or her practice for a period in excess of 30 consecutive days, give notice in
writing to the Council at least 14 days prior to his or her departure of the
arrangements which he or she has made for the supervision of the practice
during his or her absence. The attorney may, in the case of urgency only, give
the Council a shorter period of notice. In the notice the attorney must inform the
Council –
18.6.1. which other attorney will be supervising his or her practice;
18.6.2. the extent of the supervision which the other attorney will exercise;
18.6.3. what arrangements he or she has made for the payment of business
and trust creditors; and
18.6.4. the reason for the late notice, if applicable.
This paragraph 18.6 applies also to attorneys who practise as partners or
directors of a firm where all the partners or directors intend to be absent
simultaneously from the firm for a period in excess of 30 consecutive days;
18.7. not overreach a client or overcharge the debtor of a client, or charge a fee
which is unreasonably high, having regard to the circumstances of the matter.
Any disputes about the quantum or rate of fees by an attorney or by work done
by and value received from an attorney shall be subject to a fees enquiry
conducted by the Council or an authorised sub-structure of the Council, and an
onus shall rest on the attorney to justify the reasonableness of fees charged
and that the work charged for was done and was reasonably necessary to do,
or was done at the request of the client;
18.8. submit an account for taxation or assessment, as the case may be, within a
reasonable time after a request to do so by the Council, the client or the person
purportedly liable for payment of the fee;
18.9. not act in association with any organisation or person whose business or part of
whose business it is to solicit instructions for the attorney;
18.10. not buy instructions in matters from a third party and may not, directly or
indirectly, pay or reward a third party, or give any other consideration for the
referral of clients other than an allowance on fees to an attorney for the referral
of work;
18.11. use the services of a third party (including services for the purpose of gathering
evidence) only where the attorney has established a bona fide attorney and
client relationship with the client, such that –
18.11.1. the client is free to elect whether or not to use the services of the third
party;
18.11.2. the attorney takes proper instructions directly from the client; and
18.11.3. the attorney is mandated to engage the third party at the client’s cost,

in which event the attorney may issue an instruction to a third party whom the
attorney considers will be competent to do specific work, and the attorney may,
on the client’s behalf, pay to the third party a fair and reasonable fee, consistent
with the value of the work actually done by the third party;
18.12. when using the services of a third party, render an account to the client which
discloses the payment to the third party as a disbursement;
18.13. not accept a mandate –
18.13.1. knowing there to be an existing mandate, or a freshly terminated
mandate, given to another attorney without explaining to the client all
 the implications of his doing so, including in particular the cost
implications;
18.13.2. in a matter taken on a contingency fee basis where he or she knows or
ought reasonably to know that there were no good grounds for the
potential client to terminate the existing mandate;
18.14. perform professional work or work of a kind commonly performed by an
attorney with such a degree of skill, care or attention, or of such a quality or
standard, as may reasonably be expected of an attorney;
18.15. in any communication with another person on behalf of a client –
18.15.1. not represent to that person that anything is true which the attorney
knows, or reasonably ought to know, or reasonably believes, is untrue;
or
18.15.2. not make any statement that is calculated to mislead or intimidate that
other person, and which materially exceeds the legitimate assertion of
the rights or entitlement of the attorney’s client; or
18.15.3. not threaten the institution of criminal proceedings against any other
person in default of that person’s satisfying a concurrent civil liability to
the attorney’s client; or
18.15.4. not demand the payment of any costs to the attorney in the absence of
an existing liability owed by the person to the attorney’s client;
18.16. be in attendance, or immediately accessible, during a consultation with counsel
or an attorney acting as counsel, or at court during the hearing of a matter
(other than an unopposed application) in which he or she is the attorney of
record, in person or through a partner or employee, being an attorney or a
candidate attorney;
18.17. take all such steps as may be necessary from time to time to ensure
compliance at all times as an accountable institution with the requirements of
the Financial Intelligence Centre Act, 38 of 2001;
18.18. pay timeously, in accordance with any contractual terms or, in the absence of
contractual terms, in accordance with the standard terms of payment, the
reasonable charges of any legal practitioner, whether an advocate or an
attorney, whom he or she has instructed to provide legal services to or on
behalf of a client; such liability shall extend to every partner of a firm or member
of an incorporated practice, and if the firm is dissolved or the incorporated
practice is wound up, liability shall remain with each partner or member, as the
case may be, the one paying, the others to be absolved;
18.19. dress appropriately when rendering services to or on behalf of a client;
18.20. not have a branch office unless, at all times when practice is being conducted
there, that office is under the effective supervision of a practising attorney. The
decision of the Council as to whether or not a branch office is under effective
supervision shall be binding on the attorney and, if negative, shall entitle the
Council to order that the matter be rectified or that the branch office be closed;
18.21. if he or she accepts appointment as an acting judge, adhere to the code of
conduct applicable to judges;
18.22. not tout for professional work. An attorney will be regarded as being guilty of
touting for professional work if he or she either personally or through the
agency of another, procures or seeks to procure, or solicits for, professional
work in an improper or unprofessional manner or by unfair or unethical means,
all of which for purposes of this rule will include, but not be limited to –
18.22.1. the payment of money, or the offering of any financial reward or other
inducement of any kind whatsoever, directly or indirectly, to any person
in return for the referral of professional work; or
18.22.2. directly or indirectly participating in an arrangement or scheme of
operation resulting in, or calculated to result in, the attorney’s securing
professional work solicited by a third party.
 For purposes of this paragraph 18.22 “professional work”, in addition to work
which may by law or regulation promulgated under any law be performed only
by an attorney, means such other work as is properly or commonly performed
by or associated with the practice of an attorney.

o Part VI: Conduct of legal practitioners and candidate legal practitioners

in relation to appearances in court and before tribunals

 57: Disclosures and non-disclosures by legal practitioners

1. Disclosures and non-disclosures by legal practitioner

1.1. A legal practitioner shall take all reasonable steps to avoid, directly or indirectly,
misleading a court or a tribunal on any matter of fact or question of law. In
particular, a legal practitioner shall not mislead a court or a tribunal in respect of
what is in papers before the court or tribunal, including any transcript of
evidence.
1.2. A legal practitioner shall scrupulously preserve the personal and confidential
information of a client communicated to him or her, unless the information is not
privileged and disclosure is required by law.
1.3. A legal practitioner shall not waive or purport to waive privilege in respect of
privileged information; the decision to waive professional privilege is that of the
client, not of the legal practitioner.
1.4. A legal practitioner shall, in any ex parte proceedings, disclose to a court every
fact (save those covered by professional privilege or client confidentiality)
known to the legal practitioner that might reasonably have a material bearing
on the decision the court is required to make.
1.5. A legal practitioner shall, in all proceedings, disclose to a court or a tribunal all
relevant authorities of which the legal practitioner is aware that might
reasonably have a material bearing on the decision the court or tribunal is
required to make.
1.6. A legal practitioner shall, if the interests of justice require the disclosure to a
court or tribunal of information covered by professional privilege, seek from the
instructing attorney (where one is appointed) and the client permission to make
the disclosure, and if permission is withheld, the legal practitioner shall
scrupulously avoid any insinuation in any remarks made to a court or tribunal
that all information that would serve the interests of justice has been disclosed.
1.7. A legal practitioner shall not, in the event of being obliged to withdraw from
representing a client in any proceedings, offer an explanation that would
disclose the client’s confidential or privileged information.
1.8. A legal practitioner shall, if a draft order is presented to a court that deviates in
any respect from standard form orders routinely made in that court, expressly
draw such deviations to the attention of the court and offer a justification for
such deviations.
1.9. A legal practitioner shall not rely on any statement made in evidence which he
or she knows to be incorrect or false.
1.10. A legal practitioner shall not make use of any privileged information of the
opposing party that has accidentally or unlawfully come into the possession of
the legal practitioner, and shall at once he or she has knowledge of such
circumstances, notify the legal representatives for the opposing party. However,
if such information subsequently becomes available to the legal practitioner
through lawful means, he or she shall not be prohibited from making use
thereof.

 58: Conflicts of interests involving legal practitioners

58. Conflicts of interests involving legal practitioners
58.1. A legal practitioner shall guard against becoming personally, as distinct from
professionally, associated with the interests of the client.
58.2. A legal practitioner shall not stand bail for the client.
58.3. A legal practitioner shall not accept a brief to appear before any court, council,
board or other adjudicative tribunal, and whether statutory or voluntary in
nature, if the legal practitioner is contemporaneously a member of that court,
council, board or adjudicative tribunal, whether by election or appointment, and
whether such membership is permanent, temporary or in an acting capacity.
58.4. A legal practitioner shall not be obliged to accept a brief if he or she has
previously accepted a brief to advise another interested party about the matter.
The legal practitioner must refuse such a brief if any confidential information
having any bearing on the matter had been received by him or her with the
earlier brief or a reasonable belief might exist that the client in the earlier brief
might be prejudiced by such acceptance.
58.5. A legal practitioner may accept a brief to argue a case for a party despite
having earlier given an opinion on the issues to the opposing party, provided
that –
58.5.1. no information had been received by the legal practitioner for the
purpose of giving the opinion about which a reasonable belief might
exist that the client in the earlier brief might be prejudiced by
acceptance of the later brief; and
58.5.2. the attorneys for both parties (where appointed), or an unrepresented
party, agree to the offer of the later brief before an acceptance.
58.6. A legal practitioner may not accept a brief on appeal if the legal practitioner has
accepted a brief for the opposing party at any stage of the proceedings.
58.7. A legal practitioner who has presided at an enquiry in terms of the company
laws shall not at any time accept a brief to act in any capacity for any interested
party in any subsequent proceedings related in any way to the subject matter of
the enquiry.
58.8. A legal practitioner who has accepted a brief from a liquidator or from a trustee
of an insolvent estate shall not at any time accept a brief to act in any capacity
for any interested party in subsequent proceedings in the liquidation or the
insolvency.
58.9. A legal practitioner shall not accept a brief if he or she has any form of
relationship, including a family relationship, with the client or an opposing party
which compromises, or which might reasonably be expected to compromise,
the legal practitioner’s independence.
58.10. A legal practitioner shall not accept a brief where a position or office previously
occupied by him or her with a client or with an opposing party compromises, or
might reasonably be expected to compromise, his or her independence.
58.11. A legal practitioner shall not accept a brief on behalf of a provincial or municipal
council of which he or she is a member.
58.12. An advocate who was previously an attorney acting for the client in a matter
should not accept a brief as a legal practitioner in the same matter where the
advocate’s former capacity, the extent of control and direction exercised by him
or her as an attorney, or his or her established relationship as attorney with the
client is likely to compromise the expectation that the advocate's advice about
the conduct of the matter will be independent.

 59: Conflicts of interest among clients of legal practitioners

59. Conflicts of interest among clients of legal practitioners

59.1. A legal practitioner shall, when acting for two or more clients, be aware of the
risk of a conflict of interests existing or arising in the course of the proceedings,
 whether criminal or civil, and once the legal practitioner is alerted to the
existence of a conflict he or she shall withdraw from acting for one or all clients
in those proceedings as soon as possible, and in particular –
59.1.1. if the legal practitioner has become aware of privileged or confidential
information of any one client relevant to the proceedings that could be
used to the prejudice of any other client, the legal practitioner may not
act in any proceedings in which the prejudiced client is a party;
59.1.2. if the legal practitioner learns of a conflict of interest among clients at a
time and under circumstances where the legal practitioner is not made
aware of any privileged information, the legal practitioner may continue
to act for one or other client as nominated by the instructing attorney
(where one is appointed).
59.2. A legal practitioner may act for two or more adversaries in drawing a settlement
agreement to capture their agreement, but must advise the parties of their
rights to independent legal advice. Moreover, in any matter involving a
settlement of a matrimonial dispute or a matter involving the regulation of care
and residence of children, the legal practitioner shall take active steps to
ensure that all aspects of any contemplated settlement is equitable to all parties
and in the best interests of the children.

 60: Commitment of legal practitioners to an effective court

process

60. Commitment of legal practitioner to an effective court process

60.1. A legal practitioner shall not abuse or permit abuse of the process of court or
tribunal and shall act in a manner that shall promote and advance efficacy of
the legal process.
60.2. A legal practitioner shall not deliberately protract the duration of a case before a
court or tribunal.
60.3. A legal practitioner shall take all reasonable steps to arrive promptly in a court
or tribunal where the legal practitioner is expected to appear, and shall in this
regard take reasonable steps to allow for habitual events that might inhibit
prompt arrival.
60.4. A legal practitioner who is expected to appear in a court or before a tribunal at a
given time shall honour that commitment and shall organise other commitments
to prevent interference with the scheduled court hearings. In particular, the
legal practitioner shall not endeavour to seek or arrange a postponement of the
matter or a change to a different time to suit his or her convenience, except
when the instructing attorney (where appointed) and the client, having been
fully and accurately informed of the reasons relied upon by the legal
practitioner, have agreed, and
60.4.1. when an opposing party is affected, the opposition legal
representatives, if any, having been fully and accurately informed,
have agreed, and
60.4.2. the business of the court or tribunal is not materially compromised.

3.2 Constitutional Practice (including aspects of Customary Law)

o The Bill of Rights

While vital litigation indeed does invoke the rights in the Bill of Rights, about one third of
constitutional litigation is spawned from the other thirteen Chapters of the Constitution and
its Schedules.

When interpreting the Bill of Rights, a court, tribunal or forum-

 (a) must promote the values that underlie an open and democratic society based on
human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.

When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of
Rights.

The Bill of Rights does not deny the existence of any other rights or freedoms that are
recognised or conferred by common law, customary law or legislation, to the extent that
they are consistent with the Bill.

There are seven steps to the proper interpretation of legislation (statutes, bylaws and
regulations) in South Africa.

First, when interpreting any legislation all courts, tribunals or forums must promote the spirit,
purport (meaning the sense) and objects of the Bill of Rights.

Second, the Court must construe (meaning interpret any legislation in a manner consistent
with the Constitution.

Third, the cardinal rule (meaning very important rule) of interpretation is that the ordinary
meaning of the words in a statute need to be interpreted in the context of the statute in its
entirety and its apparent purpose. This rule also applies to the interpretation of contracts.

Fourth, the purpose of remedial legislation plays a critical role in the interpretation of such a
statute. An example of remedial legislation is the Restitution of Land Rights Act 22 of 1994. It
is called remedial legislation because the purpose of the Act is to provide for the restitution of
rights in land to persons or communities dispossessed of such rights after 19 June 1913 as a
result of past racially discriminatory laws.

Fifth, when there is an apparent conflict between national and provincial legislation, the
Constitution requires that every court must prefer any reasonable interpretation of the
legislation or constitution that avoids a conflict, over any alternative interpretation that results
in a conflict.

Sixth, the Constitution also requires every court to prefer any reasonable interpretation of
legislation that is consistent with international law over any alternative interpretation that is
inconsistent with international law.

Seventh, in Schedule 6 of the Transitional Arrangements, the Constitution sets out the rules
to interpret ‘any remaining old order legislation’ that existed before the Constitution took
effect on 4 February 1997.

Remedies and the limitations analysis

A remedy may apply to any violation or infringement of the Constitution. However,

infringements require specific attention. The first step is to consider whether the limitations
analysis applies to your case.

First, it is trite that no right in the Bill of Rights is absolute. Section 7(3) of the Constitution
provides for this.
Second, any right in the Bill of Rights may be limited in terms of section 36 of the
Constitution.

Third, the more substantial the inroad into a fundamental right, the more persuasive the
grounds of justification must be.

7 Rights

(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the
rights of all people in our country and affirms the democratic values of human dignity,
equality and freedom.
(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in
section 36, or elsewhere in the Bill.

The Bill of Rights is Chapter 2 of the Constitution: sections 7 to 39.

36 Limitation of rights

(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights.

The Limitations analysis

The limitations analysis is the process you use after having established the facts of your
client’s case to determine whether one of the following three points is at issue:

First, is there an infringement of an entrenched right? If not, no analysis is needed.

Second, if there is an infringement of an entrenched right, does the infringement arise from
legislation, the administration of a statute or regulation (how an official carries out work in
terms of that law) or the common law (judicial precedent from case law or common law
authorities)?

Third, is that infringement permissible in terms of section 36(1) of the Constitution?

The limitations analysis is a weighing of the issues at stake in the second and third points
above. Case law refers to the process as the balancing of different interests.

Section 38 of the Bill of Rights deals with standing. However, if a right in the Bill of Rights is
infringed or threatened, the section expands the toolkit for constitutional remedies to include
a declaration of rights.

38 Enforcement of rights
Anyone listed in this section has the right to approach a competent court, alleging that a right
in the Bill of Rights has been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights. The persons who may approach a court are –

(a) anyone acting in their own interest;

(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.

“Appropriate relief” may be a declaration of rights, an interdict, a mandamus or such other

relief as may be required to ensure that the rights enshrined in the Constitution are protected
and enforced.

Although the requirements of a mandamus are the same as a final interdict, the mandamus
as adapted to constitutional jurisprudence is closely related to the structural interdict.

Structural interdict
(a) the court declares how the government conduct falls short of a constitutional
obligation;
(b) the court orders the government to comply with the obligation;
(c) the court orders the government to produce a report within a specified time period
setting out the steps it has taken and what future steps will be taken;
(d) the applicant is given an opportunity to respond to the report; and
(e) the matter is enrolled for hearing. If the court is satisfied, the report is made an order
of court.

Development of the common law takes place in terms of section 39(2) of the Constitution.

39 Interpretation of Bill of Rights

(2) When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.

o Jurisdiction of the courts to hear constitutional matters, access to the

Constitutional Court, and the exclusive jurisdiction of the Constitutional
Court

The jurisdiction of the Constitutional Court is detailed in section 167(3) to 167(7). The
following is a summary of those subsections.

1. The Constitutional Court may decide constitutional matters.

2. The Constitutional Court may decide a non-constitutional matter, if it grants leave to
appeal on the grounds that the matter raises an arguable point of law of general
public importance which it ought to consider.
3. Only the Constitutional Court may–
a. decide disputes between organs of state in the national or provincial sphere
concerning the constitutional status, powers or functions of any of those
organs of state;
b. decide on the constitutionality of any parliamentary or provincial Bill;

However, the threshold procedure of both types of Bill is that the President or
the Premier must give the National Assembly or Provincial Legislature a
chance to accommodate their reservations. If the President or Premier is not
 happy with the proposed changes, then the matter is ripe to go to the
Constitutional Court.

c. decide applications from members of the National Assembly to declare and

Act of Parliament unconstitutional or from members of the provincial
legislature to declare a provincial act unconstitutional;

Again, there is a threshold requirement before the matter is ripe to be heard:

at least one-third of the members of the National Assembly and 20% of the
members of provincial legislature must support the application.

d. decide on the constitutionality of any amendment to the Constitution;

e. decide that Parliament or the President has failed to fulfil a constitutional
obligation; or
f. certify a provincial constitution in terms of section 144.

The only certification is the Constitution of the Western Cape 1 of 1998.

4. The Constitutional Court makes the final decision whether an Act of Parliament, a
provincial Act or conduct of the President is constitutional.
5. The Constitutional Court confirms any order of invalidity made by the Supreme Court
of Appeal, the High Court of South Africa, or a court of similar status, before that
order has any force.
6. Constitutional Court Rule 18 allows a person, when it is in the interests of justice and
with leave of the Court to bring a matter directly to the Constitutional Court.
7. Constitutional Court Rule 19 allows a person, when it is in the interests of justice and
with leave of the Court to appeal directly to the Constitutional Court from any other
Court.

Section 167(3) of the Constitution reads:

The Constitutional Court–

(a) is the highest court of the Republic; and

(b) may decide–
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal on the
grounds that the matter raises an arguable point of law of general public
importance which ought to be considered by that Court, and
(c) makes the final decision whether a matter is within its jurisdiction.

With reference to the meaning of the words “…the matter raises an arguable point of law of
general public importance…”, it was stated in the Constitutional Court that “The notion that a
point of law is arguable entails some degree of merit in the argument. Although the argument
need not, of necessity, be convincing at this stage, it must have a measure of plausibility.
The word “arguable” is used in the sense that there is substance in the argument advanced.

The Constitutional Court held that it holds a special place in the appellate hierarchy as a
super appellate court, and therefore it offers litigants the opportunity of a super-appeal.
However, not all litigants who knock on the Court’s doors will be given the opportunity to
argue their case, either orally or in writing. We are directed by the Constitution as to which
matters should be adjudicated by the Constitutional Court.

Although there are constitutional issues at play, this does not necessarily mean that leave to
appeal must be granted. To this end, the Constitutional Court enjoys the discretion to decide
whether to grant leave to appeal. The criterion is whether it would be in the interests of
justice to grant leave to appeal.

The interests of justice

In determining what the interests of justice demand, a court must have regard to, and
carefully weigh, all relevant circumstances and factors. Undoubtedly, the relevant factors will
differ based on the facts of each case. These non-exhaustive factors include:

(a) the kind and importance of the constitutional issue raised;

(b) the potential for irreparable harm if leave is not granted;
(c) whether the interim order has a final effect or disposes of a substantial portion of the
relief sought in a pending review;
(d) whether there are prospects of success in the pending review;
(e) whether, in deciding an appeal against an interim order, the appellate court would
usurp the role of the review court;
(f) whether interim relief would unduly trespass on the exclusive terrain of the other
branches of government, before the final determination of the review grounds; and
(g) whether allowing the appeal would lead to piecemeal adjudication and prolong the
litigation or lead to the wasteful use of judicial resources or legal costs.

However, to advance a new case on a different basis and on issues not advanced in the
High Court and Supreme Court of Appeal under the guise of interests of justice, the
Constitutional Court warned, is not acceptable. This is especially so where respondents
have not had an opportunity to present their case and will be prejudiced by an applicant’s
stance and where there are no exceptional circumstances to warrant the Court to hear such
issues as a court of first and last instance.

Summary of the constitutional jurisdiction of the Supreme Court of Appeal and the
High Court in sections 168 and 169 of the Constitution

(1) The Supreme Court of Appeal may decide appeals in matters from the High Court of
South Africa and courts of similar status.
(2) But the Supreme Court of Appeal may not decide appeals in labour or competition
matters.
(3) The Supreme Court of Appeal may decide only:
(i) appeals;
(ii) issues connected with appeals; and
(iii) any other matter referred to it by and Act of Parliament.

(1) The High Court of South Africa may decide any constitutional matter; except a
constitutional matter that–
(i) the Constitutional Court has agreed to hear under direct access; or
(ii) is assigned by an Act of Parliament to another court of similar status.
(2) The High Court of South Africa may decide any other matter not assigned to another
court by a Act of Parliament.

o Declaration of invalidity, reading down, reading in, severance, and the

remedies available

For our purposes, there are eleven remedies in the Constitution. These begin on page 61
of the LEAD Manual.

The remedies are the following:

 1. Declaration of invalidity
2. Declaration of rights
3. Interdicts
4. Mandamus
5. Damages
6. Contempt of Court
7. Exclusion of evidence
8. Administrative law and labour remedies
9. Development of the common law
10. Costs awards
11. Referral to Chapter 9 Institutions or other relevant authorities

Severance: Removing the invalid part of the law if the rest of the law would still make sense
and would comply with its original purpose.
Reading in: An interpretive tool. It is a way to save a statutory provision from constitutional
invalidity by giving it a meaning – on its wording – that is constitutionally compliant.
Reading down: A remedy which is more invasive. It is invoked after a provision has been
found constitutionally invalid. Rather than to burden the legislature with a change that may
be needed, a court reads the constitutionally required words into the provision or phrase by
adding them.
Striking down: Here severance cannot save the law. The entire law is struck down.

o Advising clients about their Constitutional rights, duties, obligations,

and the Constitutional Court’s stance on legal standing;

An approach to giving advice

Before you give advice on any matter of the law, it is useful to know something about that
law.

Standing, or locus standi in judicio, requires a party to ‘have an adequate interest in the
subject matter of the litigation, usually described as a direct interest in the relief sought; the
interest must not be too remote; the interest must be actual, not abstract or academic; and it
must be a current interest and not a hypothetical one. The duty to allege and prove locus
standi rests on the party instituting the proceedings.

o Customary law including land, customary marriages (Recognition of

Customary Marriages Act, 1998), succession, ownership of property,
and traditional leadership. Refer to constitutional court cases on these
topics, including the Bhe judgment, and others.

Living customary has influenced the way in which the Constitution interprets land and
property rights [see Alexkor Ltd and another v Richtersveld Community and others
(CCt19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October
2003)]. Communitarianism still anchors social relations including providing access to land
and property rights. Generally, if property is situated in a communal area, the legal
system to be used for disputes relating to such property is customary law. One should
expect the converse in respect of property situated in urban areas. Recently it had been
decided that customary law may also be used in determining disputes relating to property in
urban areas as far as succession is concerned.

The High Court of South Africa confirmed that customary law has been accepted by the
framers of the Constitution as a separate legal and cultural system which may be freely
chosen by persons desiring to do so.
In the context of customary law, the law of property may be defined as those rules of
customary law and statutory law as interpreted by our Courts in compliance with the
provisions of the Constitution of the Republic of South Africa which regulate the relationship
between a person with regard to his or her property. The Constitution, which is supreme,
grants protection to rights or freedom recognised or conferred by customary law, common
law, or legislation if such rights are consistent with the Bill of Rights.

Van der Walt and Pienaar describe the effect of the Constitution on the customary law of
property as follows:

“Effectively this means that customary law and customary property rights shall continue to
exist and to be recognised by the Courts, unless they are inconsistent with fundamental
rights protected by Chapter 2 of the Constitution. In future these rights will also have to be
interpreted and applied with due regard to the spirit and objectives of the Constitution.”

Definition of property and the characteristics of the right to property in customary law

Property is traditionally defined as anything that is capable of being owned or possessed and
which is useful or beneficial to a person. The objects relating to a right to property may be of
various kinds, namely, moveable and immovable; consumable and non-consumable;
divisible and indivisible; fungible and non-fungible; or negotiable and non-negotiable. The
right implies a relationship between the holder and other person, that is, a dual relationship.

In traditional customary law rights, including property rights, were granted to family or
agnatic groups with the members sharing the groups’ rights to property. Colonial perception
was that families were the only persons with full legal capacity in terms of customary law, but
this did not imply that other members of the family could not acquire rights to property.
Rights of individuals were protected through their families.

In African traditional communities the emphasis always fell on the family group as an
individual has status and functions within the group context. Thus, an individual is deemed to
have acquired or to acquire a right through his or her family head. This right is then also
protected by or through his or her family head. It is important to note that the property of the
family home was not owned outright by the family head but was held in communal ownership
by the family as a unit, under his administration and control.

Customary law recognises the right of ownership and other limited real rights over property,
but the nature and content of these rights must be understood within the framework of family
relationships, i.e., in the context of marriage, family and succession. Thus, customary law
recognises family property, house property and personal property.

House property means the property vested in and pertaining specially to any house in a
family home. Such property is acquired by donations or apportionments and from the lobolo
received for girls of that house. House property includes:

The earning of a woman of a house; any earnings of a midwife or medicine woman; cattle or
goods gifted by a father to his daughter on marriage. It should be observed that the
indlunkulu (great house) has its own property which is quite separate from family home
property.

Family home property means all property in a family home, other than property vesting in or
pertaining to a particular house in a family home, and other than the personal property of a
major inmate or of any inmate not related to or belonging to the family of the family home
head.
Personal property is property other than house or family home property, and which belongs
to a major inmate of the family home. Thus, it had been held that a bicycle and wearing
apparel belonging to a deceased were his personal property.

Customary law rights to property could be acquired in various ways, namely:

 Allotment;
 Succession;
 Certain customary transactions relating to marriage;
 Original means, such as appropriation of ownerless things, manufacture, cultivation,
and administrative allotment;
 Derivative means such as transfer of property or purchase or exchange of things.

Right to land

The customary system of land tenure in the African areas was generally referred to as
“communal land tenure”.

The nature of communal land tenure

The idea of individual ownership of immovable property, notably land, is ill-developed in

African law. Ownership was said to vest in the community. The African concept of ownership
differed from the European perception of ownership as the sum of all the real rights which a
person can possibly have over land.

Various writers described communal tenure. Although they differed in detail their description
had the following features in common:

 The land “belongs” to the community. A community would not say it “owned” the land,
because ownership of immovable property was unknown and impractical. Later some
communities (tribes) acquired property, but it was registered in the name of the
Minister to be held in trust for the community. Normally a community acquired land by
conquest or first settlement on vacant land and succession by one generation after
another.
 The land constituted a religious character in that it was acquired by and held in trust
by the spirits of the ancestors.
 The land was simply required by the community for sustenance that is a means of
livelihood. It was for economic reasons not for sale or exchange.

Traditional communal land tenure

The communal land is possessed communally and falls under the control and disposal of the
community.

Each community controls its own communal area, and this consists of:

 Residential allotments;
 Arable allotments;
 The remaining area reserved for grazing and for extending the residential and arable
allotments.

Protection of customary property rights

The customary law of delict provides for remedies where a right to property is infringed.
Such remedies entitle a person to damages from the wrongdoer. These remedies are like
the use of the action legis aquillae (action brought by the lessor against the lessee to
enforce the contract of hire). Where property held under customary law is stolen, a remedy
like the action for the theft of the common law is applicable. The thief must pay twice (or
more) the value of the property and a fine.

A remedy like the mandament van spolie (order for return of property) is also recognised.
This remedy entitles a person to vindicate his or her property from another in the case of
unlawful possession. The various remedies available in South African common law may also
be used in the protection of property held under customary law.

While that is the customary law as stated, it is probably of academic interest only. Land in
communal areas is almost exclusively held in terms of permissions to occupy and quitrent,
which is governed by statute. These rights are akin to ownership that may be enforced
based on common law. A permission to occupy or a quitrent grant can hardly be regarded as
a customary right to land, although the land is situated in a communal area.

The concept of African customary law

“Customary law means the customs and usages traditionally observed among the
indigenous African people of South Africa and which form part of the culture of those
people.”

 The Court has made a distinction between official customary law and living law in the
case of Bhe:

“The official rules of customary law are sometimes contrasted with what is referred to
as “living customary law”, which is an acknowledgement of the Rules that are
adapted to fit in with changed circumstances. The problem with the adaptations is
that they are ad hoc and not uniform. However, Magistrates and the Courts
responsible for the administration of intestate estates continue to adhere to the rules
of official customary law, with the consequent anomalies and hardships as a result of
changes which have occurred in society. Examples of this are the manner in which
the Bhe and Shibi cases were dealt with by the respective Magistrates.”

In Pilane v Pilane 2013 (4) BCLR 431 (CC) the Court defines official customary law:

“Our history, however, is replete with instances in which customary law was not given
the necessary space to evolve but was instead fossilised and “stone-walled” through
codification, which distorted its mutable nature and subverted its operation. The
Constitution is designed to reverse this trend and to facilitate the preservation and
evolution of customary law as a legal system that conforms with its provisions”

 Many scholars have argued that the term “customary laws” is more accurate as
opposed to “customary law” in the South African context, primarily to capture the
cultural diversity.
 It is worth reiterating that African customary law is a discourse and a valid legal
system. The Alexcor case encapsulates its uniqueness within the context of land
rights, as follows:

“The nature and the content of the rights that the Richtersveld Community held in the
subject land prior to annexation must be determined by reference to indigenous law.
That is the law which governed its land rights. Those rights cannot be determined by
reference to common law. The Privy Council has held, and we agree that a dispute
between indigenous people as to the right to occupy a piece of land has to be
determined according to indigenous law.”
 “While in the past indigenous law was seen through the common law lens, it must
now be seen as an integral part of our law (unique). Like all law it depends for its
ultimate force and validity on the Constitution. Its validity must now be determined by
reference not to common law, but to the Constitution. Thour Courts are obliged by
section 211(3) of the Constitution to apply customary law when it is applicable,
subject to the Constitution and any legislation that deals with customary law. In doing
so the Courts must have regard to the spirit, purport and objects of the Bill of Rights.”

Essentially, this case cautioned against the use of a “western ruler to measure
African knowledge.” This is significant against the background of centuries of
superiority enjoyed by common law, hence the “default setting” of interpreting law
through the European lens is challenged because it poses a threat to transformative
constitutionalism.

Nature of African customary law

In Alexkor, it was stated that in applying indigenous law, it is important to bear in mind that,
unlike common law, indigenous law is not written. It is a system of law that was known to the
community, practised, and passed on from generation to generation. It is a system of law
that has its own values and norms. Throughout its history it has evolved and developed to
meet the changing needs of the community. And it will continue to evolve within the context
of its values and norms consistently with the Constitution.

By nature, African customary law is oral (fluid), dynamic and flexible. This directly influences
living law, as provided in Pilane:

“It is well established that customary law is a vital component of our constitutional system,
recognised and protected by the Constitution, while ultimately subject to its terms. The true
nature of customary law is as a living body of law, active and dynamic, with an inherent
capacity to evolve in keeping with the changing lives of the people whom it governs.”

It is clear, therefore that the Constitution acknowledges the originality and distinctiveness of
indigenous law as an independent source of norms within the legal system. At the same time
the Constitution, while giving force to indigenous law, makes it clear that such law is subject
to the Constitution and has to be interpreted in the light of its values. Furthermore, like the
common law, indigenous law is subject to any legislation, consistent with the Constitution,
that specifically deals with it. In the result, indigenous law feeds into, nourishes, fuses with
and becomes part of the amalgam of South African law.

African customary law contracts

Lobola

Predominantly, lobola contracts are the most typical obligations encountered. Moreover, in
terms of section 6 of the Recognition of Customary Marriages Act women have the same
status and capacity as their husbands. This repeals the previous legal position where
married women had minority status and their husband acted as their guardian.

Parties

As the Recognition of Customary Marriages Act states, lobola is a requirement for the
fulfilment of a valid customary marriage. The lobola contract is concluded during the process
of negotiation, where this contract is between the prospective husband/his family head that
the prospective pride/family head. Before the process can commence, the family head of the
prospective bride calls her into the negotiating room to ascertain if she consents to the
proposal and if she consents to them representing her in further negotiations. The family
head will then have the primary role of giving away the bride. The prospective groom’s
consent is inferred from the fact that he requests his family head and representatives to
approach the prospective bride’s family. Both the prospective bride and groom are then
excluded from the negotiation process altogether in favour of their family representatives to
proceed on their behalf. There are subtle differences in practice between tribes in South
Africa, but the general idea is that each traditional community has the equivalent for lobola
negotiations.

Currently, because of urbanisation and imperialism, people’s lived experiences do not allow
for them to keep kraals in the city, which has transformed the “currency” to money.

Ukwethula

This occurs when a man who is married uses property belonging or allotted to one of his
houses in order to provide lobolo for a further wife. The lobolo to be received for the eldest
daughter born of his marriage is usually indicated as a source from which the liability is to be
met.

Ukwethula may also arise where property is taken from a house in order to provide lobolo for
a son of another house and when the lobolo that would be required for a woman in a house
is allocated to a son in another house or used to settle a debt of another house.

Ukwenzelela

Under this custom, cattle are given to a man to enable him to pay ikhazi for his wife. This
may take place where he has a few of his own and needs them to be supplemented. The
helper is usually a relative but may also be a stranger.

In the absence of express agreement to the contrary, cattle so given are a gift. Where it is
the intention that a refund should be made it is usually agreed that such refund will be made
from the ikhazi received from his first daughter. And if the recipient dies without having a
daughter, his heir becomes liable to refund the cattle, irrespective of the assets in the estate.

Ukufakwa

It is not unusual for ukwenzelela and ukufakwa to be confused. The salient difference
between the two was clearly explained in the leading case of Nobumba v Mfecane. Under
the ukufakwa custom a refund is always intended, and the source is the ikhazi of the girl in
connection with whose ceremonials the loan was contracted. Under ukwenzelela the giver
has to wait much longer if there is to be a refund at all because the source is the ikhazi of the
daughter born of the wife from whom the cattle are being contributed.

Farming out (mafisa, sisa or nqoma)

Farming out is another form of contract known in customary law.

This contract is defined by the KwaZulu-Natal codes as:

“a custom whereby cattle or other livestock are deposited by their owner with some other
person on the understanding that such person shall enjoy the use of them, but that the
ownership shall remain with, and increase accrue to the depositor.”

This has always been and still is a popular custom among small farmers, not only among the
Xhosa people, but also among the rest of the indigenous people of Southern Africa. Among
the Zulu people it is called ukusisa, among the Sotho and Tswana communities it is called
mafisa, and among the Shangaan, fuyisa. Usually only cattle, goats and sheep may be
mafisa animals. The Bafokeng exclude dogs, cats, pigs and fowls.

Mafisa cattle must be kept distinct from any cattle the herdsman may possess.

Isondlo

The Bhe case highlights that isondlo is one of the responsibilities of the family head
(indlalifa):

Indigenous law preserved the family unit and its continuity by transferring responsibilities of
the family head to his senior male descendant.

This descendant is referred to as indlalifa or successor. It is this male descendant who is

equated with the heir under common law. But there are more important differences between
the two. Indlalifa takes over the powers and responsibilities of the deceased family head.
The powers relate to the right to control and administer the family property on behalf of and
for the benefit of the family members. The responsibilities relate to the duty to support and
maintain all the dependants of the deceased. This process is metaphorically expressed by
the phrase “the indlalifa steps into the shoes of the deceased family head and takes over
control of the family property”.

The reform of the Customary Law of Succession Act 11 of 2009

The main aim of the Act is to modify the customary law of succession to provide for the
devolution of certain property in terms of the common law of intestate succession.

Note that according to the preamble the object of the Act is to modify the customary law of
succession so as to provide for the devolution of certain property in terms of the law of
intestate succession and the law of property in relation to persons’ subject to customary law.
“Modify” basically means “to change in form or character, usually without fundamental
transformation”.

Spouses and children

The estate of a person who is subject to customary law, defined as the customs and
practices observed among the indigenous African people of South Africa which form part of
the culture of those people, who dies after 20 September 2010, without having a valid will,
will devolve in terms of the Intestate Succession Act, subject to the following:

“Where the deceased is survived by a spouse, as well as a descendant, including a spouse

in a valid customary marriage, such a spouse must inherit a child’s portion of the intestate
estate or so much of the intestate estate as does not exceed in value the amount fixed form
time to time by the cabinet member responsible for the administration of justice (presently
R125 000.00) whichever is the greater.”

“Descendant” is defined in section 1 as:

“a person who is not a descendant in terms of the Intestate Succession Act, but who, during
the lifetime of the deceased person, was accepted by the deceased person in accordance
with customary law as his or her child.”

The marrying of seed-raisers

To appreciate the necessity for this provision one must know that a house is not a mere
dwelling. It is also said to be the family, property, rights and status which arise out of the
customary marriage of a woman. If a man marries more than one woman, they will rank
(acquire a status) in the order of seniority.

Generally, a man may marry as many wives as he pleases thus creating further houses, but
the status and ranking of a house is an accomplished fact. But the wife of a house is
expected to bear children, particularly a male heir. Hence a man may marry a seed-raiser in
a house where the wife cannot bear children.

He may also marry a seed-raiser where the wife has absconded or died without issue. It is
however important to note that seed-raisers do not create separate houses.

Woman to woman marriages

This is a practice that may be found all over Africa, but incidents are rare. This occurs
traditionally where a widow marries another woman or women to raise an heir for her late
husband or even to procreate more children. In South Africa one may come across these
marriages in Venda. In other communities they are few and far between.

Property acquired and held by traditional leader in official capacity

In terms of section 6 of the Act:

“Nothing in this Act is to be construed as amending any rule of customary law which
regulates the disposal of the property which a traditional leader who has died held in his or
her official capacity on behalf of a traditional community referred to in the Traditional
Leadership and Governance Framework Act 41 of 2003.”

When are traditional leader dies, the inheritance of his or her property and succession to his
or her office are two different things.

Hartman explains:

“When the head of a household dies, their status, like that of a chief or a lineage head,
passes to a successor. But in this case, there are other matters to be settled as well, namely
the control over goods in their estate, and the question of who is to inherit them. This
combination of inheritance and succession therefore warrants separate discussion, since it
involves factors which are not present when one considers the succession to public status,
as in the case of chieftainship, or lineage status, as in the case of lineage head. One must
remember, however, that a chief and a lineage head are also heads of households. When
they die therefore, their possessions are inherited on the same patter (taking into account
the exceptions mentioned above) as those of an ordinary head of a household.”

Dispute or uncertainty in consequence of nature of customary law

In terms of section 5(1) and (2) of the Act:

(1) If any dispute or uncertainty arises in connection with –

(a) the status or any claim by any person in relation to a person whose estate or part
thereof must, in terms of this Act, devolve in terms of the Intestate Succession
Act;
(b) the nature or content of any asset in such estate; or
(c) the devolution of family property involved in such estate,
 the Master of the High Court having jurisdiction under the Administration of Estates
Act 66 of 1965 may, subject to subsection (2), make such a determination as may be
just and equitable in order to resolve the dispute or remove the uncertainty.

Discarded wife

Until 2 December 1988 a man married by customary law could enter into a civil marriage
with another woman, thereby dissolving the customary marriage. The wife to the dissolved
customary marriage became known as the “discarded wife”. The “discarded” customary
wife’s rights are now preserved and inherits equally with the other wife.

Proof of heirs

The following two resolutions taken at the annual conference of Registrars provide guidance
as to the proof required to determine the wives and descendants as per the Act:

RCR 44 of 2009: Proof of heirs

What proof must a registrar of deeds insist upon to prove a descendant as defined in section
1 of the Reform of Customary Law of Succession and Regulation of Related Matter Act 11 of
2009 (i.e., a person not being a descendant of the deceased, but was accepted by the
deceased person as his or her own child)?

An affidavit of next of kin, certified as a true copy by the Master, which makes reference to
such “descendant”.

RCR 45 of 2009: Proof of “discarded wife”

A “discarded wife” is deemed to be a surviving spouse for purposes of intestate succession.

However, as such marriage was never registered, what documentation must a registrar of
deeds insist upon as proof that such “spouse” can inherit in terms of Act 81 of 1987, read
with Act 11 of 2009?

An affidavit of next of kin, certified as a true copy by the Master, disclosing such “discarded
wife”.

Property rights

Community of property is not recognised under Islamic law. Spouses to an Islamic marriage
maintain separate estates and each spouse retains sole ownership and control of his or her
property, whether movable or immovable, and whether acquired before or after the marriage.
A person is only allowed to receive benefits and wealth which was earned through lawful
means, and if the parties are married in terms of a shared matrimonial property system, for
example, one becomes entitled to receive benefits to which one is not Islamically entitled.

The Ulama in South Africa are unanimous that only the matrimonial property regime that is
Shari’ah compliant, is the standard antenuptial contract where there is no sharing of assets
and liabilities during the subsistence of the marriage.

Under Islamic law the woman enjoys the absolute right to earn, acquire and inherit property.
She also possesses the right of ownership over her goods and wealth independent of any
male. She is entitled to instruct any person of her choice to deal with her property without
consulting with her husband and has the right to dispose of her assets as she sees fit.
Where the wife is of sound mind, the husband does not have the right to object to the
manner in which his wife manages her wealth and the husband does not have the right to
dispose of the wealth of his wife, except with her consent.

Comparison between Islamic law and South African law: Property rights of the
marriage

In Islamic law, the general rule as far as the matrimonial property regimes are concerned, is
that the marriage is out of community of property with no sharing of assets or liabilities.
During the subsistence of the marriage the spouses are deemed to be legal strangers to
each other, and therefore do not require consent from each other to enter into contracts or
when incurring debts. In Islamic law there is also no joint administration of assets acquired
by the spouses during the subsistence of the marriage. Similarly, a marriage out of
community of property with the accrual system is also foreign to Islamic law. The parties can
elect to enter into a marriage contract to regulate their marital property in a manner that best
suits them.

In contrast to the position described above, there are currently three matrimonial property
regimes in operation in South Africa, namely, marriage in community of property, marriage
out of community of property subject to the accrual system and lastly, marriage out of
community of property without accrual.

History of traditional leadership institutions

“Traditional leaders during the colonial and apartheid regime used to perform certain
functions for the community. Functions such as judging in Traditional Courts whereby
communities that were found to be guilty in the Traditional Courts were fined cows or
corporal punishment was used to rehabilitate a community member. However, the functions
in which traditional leaders performed on Court issues were stipulated in later promulgated
legislation. The Act required traditional leaders to work on minor cases in the Courts as
stipulated in the said promulgated legislation. Furthermore, the Act allowed the Minister of
Justice to deal with cases relating to criminal matters.”

Recognition and jurisdiction of traditional leaders

Based on the transformative approach of recognising African customary law as a valid legal
system, the institution was therefore acknowledged.

Section 211(3) of the Constitution of the Republic of South Africa 1996 provides that:

“The Courts must apply customary law when that law is applicable, subject to the
Constitution and any legislation that specifically deals with customary law.”

The role of traditional leaders was incorporated into the local government sphere through the
establishment of the Traditional Leadership and Governance Framework Act 41 of 2003.

Sections 19 and 20 of the Act require government departments to allocate roles and
functions for traditional leaders.

Sections 211(1) and (2) of the Constitution guarantee their continued existence as follows:

(1) The institution, status and role of traditional leadership, according to customary law,
are recognised, subject to the Constitution.
(2) A traditional authority that observes a system of customary law may function subject
to any applicable legislation and customs, which includes amendments to, or repeal
of that legislation or customs.
Presently, traditional leader have been tasked with roles such as registering births and
deaths in the community, to assist government departments. In addition, the National House
of Traditional Leaders Act 22 of 2009 introduced traditional leaders to all levels of
government.

Procedure and evidence in traditional authority courts

Procedure

Lawyers may not appear in the Courts of traditional leaders. Where there is, however, an
appeal from the judgment of a traditional leader to the Magistrate of the district concerned, in
that event lawyers may handle the appeal.

The rules of procedure are unwritten. In terms of Rule 1 of the Traditional Leaders Court
Rules and contained in Government Notice R2082 of 1967 the procedure in connection with
the trial of civil disputes before a traditional leader under section 12 of the Black
Administration Act of 1927 must be in accordance with the recognised laws and customs of
the community.

Section 10 of the Black Administration Act 38 of 1927 provides that in criminal trials the
procedure must be in accordance with African law and customs, save in so far as the
Minister may prescribe otherwise by Regulation. No such Regulations have been made.

There is no distinction between the procedure in civil and criminal cases. A terminological
distinction is, however, made between a Plaintiff in a civil case and a complainant in a
criminal case, as also between a Defendant and an accused.

Initiation of proceedings

When a dispute arises between two persons, there will initially be an attempt to settle it at
family level. The family heads of the family houses concerned would get together and
discuss the matter. Many family disputes about succession and lobolo will come before the
family Court, known in Xhosa as inkundla yemilowo (meaning the Court of close relations).

The procedure

When a case comes before a senior traditional leader, the Plaintiff or complainant must state
his or her case in the same detail as he or she stated it before the elders and the ward
headman. The traditional leader is assisted by his or her councillors (Zulu (“ibandla”)). Men
and women of the neighbourhood are gathered for the trial.

The Plaintiff or complainant is cross-examined by his or her opponent and by anybody

present. The Defendant or accused then states his/her defence and is cross-examined by
his or her opponent and by anybody present. The Defendant or accused then states his/her
defence and is cross-examined in a like manner. The matter is then open for discussion and
anyone can take part.

In civil matters, litigants may be agnatic groups going to Court to resolve a conflict. Often
family members would accompany and support a litigant, because ultimately, they might
have to satisfy a judgment.

Messengers might be sent to warn a Defendant and witness to appear in Court. If a material
witness does not turn up, the case is postponed, and messengers sent to warn the
Defendant. Absence might entail punishment for contempt of Court.
In criminal cases proceedings are also instituted by an officer who introduces the matter for
trial or by the presiding officer. Messengers or the officer referred to above must warn the
accused, the complainant, and witnesses to appear.

Failure to observe customary law procedure gives rise to an action for damages. The High
Courts are, however, reluctant to interfere with the procedure followed in a traditional
authority Court. The proceedings of such Court will only be set aside when the Court has
disregarded the Traditional Court procedure.

The judgment

The judgment is characterised by the principle “reconciliation”.

This was described by Gluckman as follows:

“Thus, when a case came to be argued before the Judges, the conceived their tasks to be
not only detecting who was wrong and who in the right, but also the readjustment of the
generally disturbed social relationships, so that these might be saved and persist. They had
to give judgment on the matter in dispute, but they had also, if possible to reconcile the
parties while maintaining the general principles of law. It is the process of achieving
reconciliation, while abiding by the law, that we can see most clearly the doctrine of natural
justice present in Africa.

Practice differs among communities, but generally the unsuccessful party must pay the
Court fees. A portion of the fees, usually the largest, accrues to the traditional leaders, who
are nowadays obliged to pay it into the community funds. The fees usually consist of
livestock (nowadays money). Where the fee consisted of livestock, a goat was often
slaughtered for consumption by the people who attended the hearing of the case.

Execution of judgment

The procedure to be followed in executing a judgment is that followed by the community over
which the senior traditional leader has been appointed; in the case of a headman the laws
and customs of the inhabitants of the ward. In most communities it is customary to send a
community constable to levy execution. There is no provision for a sale in execution so that
whatever is attached must be handed to the judgment creditor, i.e., the party in whose favour
judgment was given.

Evidence

The following is a synopsis of traditional customary Court procedure described by Bekker:

 Witnesses are not sworn in. However, nowadays witnesses are sworn in in the same
manner as in the common law Courts.
 Hearsay and irrelevant evidence are admissible.
 There are no definite rules of evidence. The Courts are not bound by numerous rules
as the common law Courts are.
 A witness is allowed to tell his or her whole story and the smallest details are
narrated.
 There is no definite order in which witnesses are called. The Court may for instance,
call a witness halfway through the Plaintiff’s or complainant’s case, if it appears to be
necessary to clarify a point.
  The accused has to prove his innocence. There is no onus on the complainant or
prosecution to prove that the accused is guilty. This is similar to the rules in most
continental countries.
 The Court actively participates in the questioning of witnesses and may of its own
accord call witnesses. The Court may in fact obtain any evidence that it deems
necessary. A person present at the hearing may offer evidence or question a witness.
 Concrete evidence is extremely important.
 In terms of the “spoor law” again the inmates of a homestead or village to which the
tracks of stolen cattle are traced may be held liable for restitution unless they can
prove that they have followed these tracks past their homes.
 An unreasonable delay in taking action may also be taken as evidence that the
Plaintiff or complainant does not have a sound claim.

Statutory departures from rules

As stated above, there are various statutory departures from these rules. They are contained
in the Chiefs’ Court Rules.

Traditional and Khoi-San Leadership Act 3 of 2019

This Act was created to provide for the recognition of traditional and Khoi-San communities,
leadership positions and for the withdrawal of such recognition; to provide for the functions
and roles of traditional and Khoi-San leaders; to provide for the recognition, establishment,
functions, roles and administration of kingship or queenship councils, principal traditional
councils, traditional councils, Khoi-San councils and traditional sub-councils, as well as the
support to such councils; to provide for the establishment, composition and functioning of the
National House of Traditional and Khoi-San leaders; to provide for the establishment and
composition of local houses of traditional and Khoi-San leaders; to provide for the
establishment and operation of the Commission on Khoi-San leaders; to provide for the
establishment and operation of the Commission on Khoi-San Matters; to provide for a code
of conduct for members of the National House, provincial houses, local houses and all
traditional and Khoi-San councils; to provide for regulatory powers of the Minister and
Premiers; to provide for transitional arrangements; to amend certain Acts; to provide for the
repeal of legislation; and to provide for matters connected therewith.

Traditional leadership and the South African Constitution

Institution of traditional leadership

The institution, status and role of traditional authorities are explicitly constitutionally
recognised in two short sections.

Section 211 of the Constitution reads as follows:

(1) The institution, status, and role of traditional leaders, according to customary law, are
recognised, subject to the Constitution.
(2) A traditional authority observing a system of customary law may function subject to
any applicable legislation and customs, which includes amendments to, or repeal of
the legislation and customs.
(3) The Courts must apply customary law when that law is applicable, subject to the
Constitution and any legislation that specifically deals with customary law.

Section 212 further expounds the role of traditional leaders as follows:

 (1) National legislation may provide for a role of traditional leadership as an institution at
local level on matters affecting local communities.
(2) To deal with matters relating to traditional leadership, the role of traditional leaders,
customary law and the customs of communities observing a system of customary
law:

National or provincial legislation may provide for the establishment of houses or

traditional leaders; and National legislation may establish a council of traditional
leaders.

 An “institution” refers to “established law, custom or practice”;

 The institutions’ activities are underpinned by values and ideas of the people
recognising the relevant institution;
 Traditional leadership in this sense relates to the exercise of public authority over
people to ensure orderly co-existence;
 Three status positions may be distinguished, namely rulers and leaders, councillors
and followers (communities) with each position having distinctive powers, duties and
functions;
 Traditional leaders are but one element of an institution.

Implications of these recognition clauses

The recognition of the institutional leadership is further subject to two qualifications namely
(1) recognition must be in accordance with customary law and (2) subject to the Constitution.

o Constitution, 1996 as related to the topics listed above.

3.3 Labour Dispute Resolution

In essence, labour law applies to persons who are parties to a contract of employment.

In Discovery Health Ltd v CCMA and others, the Labour Court held that the definition of
“employee” in the Act does not depend on the existence of a valid employment contract. As
long as the person involved is an employee, the Act will apply. In this case, the Court was
dealing with a foreigner employed in conflict with the provisions of the Immigration Act.

In “Kylie” v CCMA and others, the Court considered the claim of unfair dismissal by a sex
worker against her former employer, a massage parlour. The Labour Appeal Court held that,
while a sex worker may not be entitled to the “full range of remedies available in terms of the
Labour Relations Act”, because reinstatement as a sex worker would result in a violation of
the Sexual Offences Act, that does not mean that an unfairly dismissed sex worker might not
be entitled to compensation in appropriate circumstances.

Among the tests for whether a person is an employee or independent contractor are the
supervision and control test and the organisation or integration test.

The third test is the dominant impression test. In terms of this test, a Court does not regard
one criterion or factor as conclusive in determining the relationship between the alleged
employer and employee, although certain factors will be more indicative of the employment
relationship than others.

An employee places their productive capacity at the disposal of the employer. By way of
contrast, an independent contractor contracts to deliver a product or the end result of their
productive capacity.
In an attempt to bring a greater degree of certainty to the question of whether a particular
worker is an employee or an independent contractor, section 200A of the Labour Relations
Act (which is mirrored by section 83A of the Basic Conditions of Employment Act 75 of 1997)
now provides that a person who works for, or provides services to another person is
presumed to be an employee until the contrary is provided, if any one or more of the
following factors are present;
 the manner in which that person works is subject to the control or direction of the
other;
 that person’s hours of work are subject to the control or direction of the other;
 that person forms part of the organisation, where he or she works for an organisation;
 that person has worked for the other for an average of at least 40 hours per month
for the last three months;
 that person is economically dependent on the person for whom he or she works or
provides services;
 that person is provided with his or her tools of trade or work equipment by the other;
and
 that person only works or supplies services to one person.

This presumption will apply regardless of the form of the contract. In other words, the fact
that the parties call their contract something other than an employment contract will not be
sufficient, in itself, to rebut the presumption.

Importantly, the presumption will not apply to persons who earn in excess of an amount
determined from time to time by the Minister.

Temporary employees are persons who have been taken into employment on a temporary
basis.

Section 198 of the Labour Relations Act provides that a person, whose services are provided
to a client by a temporary employment service (commonly termed a labour broker) in
circumstances where that person’s remuneration is paid by the labour broker, is the
employee of the labour broker, and the labour broker, as opposed to the labour broker’s
client, is the employer.

The employee’s duties:

 service
 competence
 good faith
 subordination

The employer’s duties:

 appointment and engagement
 remuneration
 safe working conditions
 provision for leave

o Dismissals, disciplinary processes, notices and warnings under the

Labour Relations Act No. 66 of 1995, including CCMA conciliation and
arbitration processes, including drafting;

What is a dismissal?

Sometimes a dispute exists regarding whether a dismissal has taken place and it is
necessary to resolve this dispute first, as a dispute regarding the fairness of a dismissal can
clearly only be resolved once it has been established that the employee has, in fact, been
dismissed.

Dismissal generally takes place when an employer terminates the employment of an

employee, either with or without notice. Where an employee has voluntarily resigned
the Court or Arbitrator is usually not able to intervene as there has been no dismissal.

Constructive dismissal

A constructive dismissal takes place where an employee terminates the employment,

but this termination was prompted or caused by the conduct of the employer. In terms
of section 192 of the Labour Relations Act, the onus is nevertheless on the employee to
establish, on a balance of probabilities, that there was a constructive dismissal rather than a
conventional resignation.

The Labour Relations Act provides that the termination of the contract of employment by the
employee, with or without notice, will be regarded as a dismissal if the reason for the
termination was that the employer made continued employment intolerable for the
employee. Even if it is established that a constructive dismissal has taken place, it does not
necessarily mean that the dismissal is unfair. The question of whether the dismissal was
unfair is a separate enquiry.

Failure to renew a fixed-term contract

The failure by an employer to renew a fixed-term employment contract might under

certain circumstances also be a dismissal. In the past a number of employers used fixed-
term employment contracts to avoid taking on permanent employees.

The temporary employment relationship usually comes to an end because the period for
which the parties agreed the contract would endure has expired, or because the reason for
which the employee’s services were specifically acquired no longer exists, or because a
particular event that the parties agreed would terminate the contract has occurred. There is
therefore no contractual right to, or any expectation of, continued employment.

The dismissal of a temporary employee prior to the end of a fixed-term contract, or

even of a limited duration contract which contemplates early termination on notice,
must still be both substantively and procedurally fair.

The Labour Relations Act stipulates that the non-renewal of a fixed-term contract is a
dismissal in those instances where the employee “reasonably expected” the
employer to renew the contract on the same or similar terms and it failed to do so. The
motive for a temporary employment relationship should therefore be bona fide and care
should be taken by the employer that no expectations are created with the employee
that the temporary employment relationship will be renewed if this is not going to be
the case.

In circumstances where a fixed-term contract had been renewed a number of times

without discussion, but where its intervening operational requirements might prevent
the employer from renewing it again, an employee who gained a reasonable
expectation that the contract would be further renewed was entitled to a fair dismissal
procedure and, in addition, the employer is required to prove a fair reason for the
dismissal based on those operational requirements.
Proving a dismissal in this instance is a two-fold test. Firstly, the employee must,
subjectively, actually have expected the fixed-term contract to be renewed and,
secondly, that the expectation must have been reasonable.

Where the employee’s employment is terminated before it begins

The effect of the decision of the Labour Appeal Court in Wyeth SA (Pty) Ltd v Manqele &
others is that, where an employer offers employment to a prospective employee – who
accepts such offer – but the employer then “withdraws” the offer before employment has
actually commenced, a dismissal has occurred.

Other types of dismissal

The Act also provides for three further circumstances which will be regarded as dismissal of
the employee concerned:
 the employer’s refusal to allow an employee to resume work after maternity leave;
 the case of selective re-employment, which occurs where an employer who has
dismissed a number of employees for the same or similar reasons only re-employs
some of them; and
 the termination of a contract of employment by the employee with or without notice
because the new employer provided such employee with employment conditions
which were substantially less favourable than those provided by the old employer
following a transfer in terms of section 197 or section 197A. Because this provision
deals with termination at the behest of the employee, we are once again dealing here
with a type of constructive dismissal.

Desertion

The question of whether an employee has deserted is one that has to be determined on the
specific facts of the case. Even though desertion constitutes a repudiation of the
employment contract by the employee, and even though the employer might fairly accept
such repudiation, such acceptance constitutes a dismissal, and such dismissal must be
procedurally fair.

Dismissals

Misconduct (Items 3, 4, 5 and 7 of schedule 8 of the Act)

Misconduct is the most common ground upon which employers seek to justify the dismissal
of an employee. In these cases, the employee is disciplined for conduct which contravenes a
disciplinary rule of the employer. In order to show that the employee has been fairly
dismissed, the employer must show that it has acted of substantively and
procedurally fair.

In respect of substantive fairness, the employer must have a good reason for the dismissal
and in this regard the following questions need to be answered in the affirmative:
 Was a rule regulating conduct in the workplace, or of relevance to the workplace,
contravened?
 Is the rule a reasonable or valid rule?
 Did the employee know of the rule or could he reasonably have been expected to
know if it?
 Is or was the rule consistently applied by the employer?
 Was dismissal an appropriate sanction for the contravention of the rule?
Dismissal is not always warranted. An employee should only be dismissed for gross or
repeated serious misconduct.

Over and above the need for it to be substantively fair, the discipline meted out in the case of
misconduct must also be procedurally fair. The essence of procedural fairness lies in
affording an employee a fair hearing. The hearing must be considered as a whole in order
to determine whether it was fair or not.

The following have been considered to be some of the elements required for a fair hearing:
 Disciplinary codes are only guidelines, and a departure from the applicable
disciplinary code will only render a dismissal unfair if the disciplinary process followed
by the employer was unfair. In addition, the fact that the employer has complied with
the procedures in its own disciplinary code is no guarantee in itself that those
procedures will be considered fair.
 The hearing must take place within a reasonable period of time of the commission of
the offence.
 The employee must be given timeous notice of the hearing and must have sufficient
time to prepare for the hearing.
 The employee must be provided with sufficient detail concerning the disciplinary
offence which they are alleged to have committed.
 The employee is entitled to be present at the hearing.
 The employee is entitled to representation at the hearing from among the ranks of
their fellow employees.
 The employee is entitled to question witnesses and to call their own witnesses.
 The person taking the disciplinary decision should be unbiased and should enter into
the proceedings with an open mind.

Incapacity (Section 188A and items 8, 9, 10 and 11 of schedule 8 of the Act)

It had traditionally been considered that there are two aspects to the notion of incapacity in
labour law. The first is where the employee is unable to do the job for which he was
employed because he is incompetent at doing the work as a result of some lack of skill,
knowledge, ability or efficiency which is necessary to meet the standards required by the
employer. Dismissals in these circumstances are referred to as dismissals for poor work
performance. The second aspect of incapacity relates to the situation where the employee is
incapable of doing the job on account of illness or injury.

Incapacity must be distinguished from misconduct since in the case of misconduct there
exists some form of culpability on the part of the employee.

Incapacity dismissals are “no fault” dismissals.

In respect of substantive fairness an employer must objectively and factually be able to

prove that the employee is not performing to the required standard and must also show that
the sanction of dismissal was appropriate.

In respect of the procedure, it is clear that the employer must conduct an objective appraisal
of the employee’s performance, which of necessity involves the active participation of the
employee. A fair procedure therefore requires such an objective appraisal, a warning to the
employee of the consequences of possible dismissal should their performance not improve,
and the provision to the employee of a reasonable opportunity to improve their performance.
The employer also has a responsibility to support the employee and to provide appropriate
training and supervision where necessary.
Before dismissing an employee for poor work performance, therefore, the employer should
give the employee appropriate evaluation, instruction, training, guidance or counselling, and,
in addition, allow the employee a reasonable opportunity for acceptable improvement. The
employer must also consider ways, short of dismissal, to remedy the problem.

The following must be considered before a dismissal for poor work performance takes place:
 whether or not the employee has failed to meet a performance standard;
 whether the employee was aware, or should reasonably have been aware, of the
standard;
 whether the employee was given a reasonable opportunity to meet the required
standard; and
 whether dismissal is an appropriate response in the circumstances.

In all cases, before any decision is taken to dismiss, the employee should be given an
opportunity to be heard and to be represented by a trade union representative or fellow
employee.

In respect of dismissals as a result of incapacity arising from ill health or injury, substantive
fairness again dictates that the employer will need to conduct an objective assessment and
prognosis of the employee’s health or injury.

The employer must investigate the extent of the incapacity and consider all possible
alternatives short of dismissal. Relevant considerations might include the nature of the job,
the period of absence, the seriousness of the illness or injury and the possibility of securing
a temporary replacement. The Labour Court has held that persistent intermittent absence
from work due to ill-health is a legitimate ground on which to dismiss for incapacity.

In respect of procedural fairness, the following must take place:

 the employer must ascertain whether the employee is capable of performing the work
for which they were employed;
 if the employee is unable to perform the work, the extent to which they are able to
perform their duties should be ascertained
 the employer is thereafter obliged to ascertain whether the employee’s duties or
working environment can be adapted in order to accommodate their disability; and
 if the employee cannot be placed in their former position, the employer must
ascertain whether appropriate alternative work, at a reduced salary, if necessary, is
available.

In the process of the investigation, the affected employee must be given an opportunity to
state a case in response, and to be represented by a trade union representative or fellow
employee.

Operational requirements (Sections 189 and 189A and item 12 of schedule 8 of the
Act)

The recognition of operational requirements as a ground for dismissal has its origins in the
Internation Labour Organisation.

It is not necessary that the business should be in financial difficulties in order for a dismissal
for operational requirements to be justifiable on the basis of economic needs; merely that
there is a sound economic reason for such dismissal. This might include a need to make
better profits.

The Court previously adopted the approach that it would not intervene in the decision to
retrench provided that there was a commercial rationale for the decision, and it was taken in
good faith. However, this approach has changed as the Court has adopted an approach that
is, if not more interventionist, then at least more investigative in nature. The Labour Appeal
Court indicated that it was entitled to determine whether a reasonable basis existed for the
decision to retrench. The Court held that the enquiry should not be directed to whether the
reason offered is the one which the Court itself would have chosen. The reason does not
necessarily have to be correct, but it must have been fair.

Dispute resolution

Commission for Conciliation Mediation and Arbitration

The Labour Relations Act relies heavily on the role of conciliation. This is no surprise.
Conciliation in matters of industrial conflict has always been the primary aim.

“Conciliation” in this regard includes mediation, fact finding and the issuing of advisory
arbitration awards. A party wishing to process a dispute concerning a matter of mutual
interest will refer the dispute to the Commission by completing LRA Form 7.11, a prescribed
form available at the Commission’s offices, and delivering a copy to the other party to the
dispute and the original to the Commission together with proof that delivery to the other party
has taken place. The CCMA recognises delivery by email as a valid form of service and has
established an online platform so that referrals can be made there. The parties to the dispute
must be, on the one side, one or more employees and/or trade unions and, on the other, one
or more employers and/or employers’ organisations. A Commissioner will then be appointed
who will attempt to resolve the dispute by way of conciliation.

The referral of a dispute relating to an alleged unfair dismissal must take place within 30
days of the date of dismissal or, if, for example, an internal appeal procedure has been
followed, the date on which the employer finally decided to dismiss the employee. The
referral of a dispute relating to an unfair labour practice must take place within 90 days of the
act or omission that allegedly constitutes the unfair labour practice. Late referral may be
condoned on good cause shown.

The parties are not entitled to be legally represented at conciliation. The representatives
permitted at conciliation are only the party’s own director or employee, or a member, office
bearer or official of the party’s registered trade union or registered employers’ organisation. It
will be noted that this does not include a fellow employee who is not a member of the same
registered trade union.

At the conciliation, the Commissioner will try to facilitate a settlement between the parties. If
the conciliation is successful, the settlement will be recorded and that will be the end of the
dispute. Such a settlement agreement may be certified as an arbitration award. Arbitration
awards have the effect of orders of the Labour Court in respect of which writs have been
issued. If the dispute is not settled, the Commissioner will issue a certificate to the effect that
the matter remains unresolved.

A party to the dispute may then, within 90 days of the issue of such certificate, request that
the matter be resolved by way of arbitration, where arbitration is the method of resolution
prescribed by the Act in respect of the particular dispute. This is done by complete LRA Form
7.13 and delivering it to the Commission along with proof that a copy has been delivered to
the other party.

Either party may request that a Senior Commissioner be appointed to arbitrate the dispute,
and a party may also object to the same Commissioner who conciliated the dispute being
appointed as Arbitrator.
A date will then be set for the arbitration and the parties will be advised accordingly.

The parties are entitled to be represented at the arbitration by an Legal Practitioner unless
the dispute concerns the dismissal of an employee for reasons relating to misconduct or
incapacity. In that case legal representation is only permitted if the Commissioner and all the
parties consent, or the Commissioner allows legal representation having concluded that,
having regard to the nature of the questions of law involved, the complexity of the dispute,
the public interest and/or the comparative ability of the parties to deal with the arbitration
without legal representation, it will be unreasonable to expect a party to deal with the dispute
without legal representation. Legal representation at the CCMA includes representation by a
Candidate Attorney.

The Act also provides for con-arb, a joint conciliation and arbitration model of dispute
resolution for disputes about dismissals for any reason relating to probation, any unfair
labour practices relating to probation, and any other dispute referable to arbitration in terms
of section 191(5)(a) in respect of which no party has objected to the matter being dealt with
in this manner. In terms of this provision, the arbitration must commence immediately after
conciliation, if the dispute remains unresolved. A party wishing to object to this procedure
must do so, in writing, to the other party and to the CCMA, at least seven days prior to the
scheduled hearing of the matter. No objection may be raised where the dispute relates to
probation.

With the exception of advisory awards, the arbitration awards are final and binding. They are
not subject to appeal. They are, however, subject to review in certain limited circumstances.
The focus of the inquiry in an appeal is whether the decision was right, whereas the focus in
a review is on how the Arbitrator arrived at the conclusion sough to be challenged.

Any party to a dispute who alleges a defect in arbitration proceedings under the Act may
apply, within six weeks after service of the award for an order reviewing and setting aside the
award. Late application may be condoned on good cause shown.

For these purposes, a defect means that:

 the Commissioner committed misconduct in relation to his or her duties as Arbitrator;

 the Commissioner committed a gross irregularity in the conduct of the arbitration
proceedings;
 the Commissioner exceeded his or her powers;
 the award was improperly obtained.

The test in Sidumo involves the reviewing Court examining the merits of the case “in the
round” by determining whether, in the light of the issue raised by the dispute under
arbitration, the outcome reached by the Arbitrator was not one that could reasonably be
reached on the evidence and other material properly before the Arbitrator (a more stringent
test than asking whether the decision is one that the Arbitrator could reasonably reach).

Section 144 of the Act also makes provision for the variation and recission of arbitration
awards in certain circumstances.

o Unfair labour practices and remedies;

Residual unfair labour practices (Section 186(2))

The Act lists four separate unfair labour practices

  The first is any unfair act or omission that arises between an employer and an
employee involving unfair conduct by the employer relating to the promotion,
demotion, probation, or training of an employee or relating to the provision of benefits
to an employee. Keep in mind that the dismissal of a probationary employee does not
constitute an unfair labour practice, but it might constitute an unfair dismissal.
 The second type of unfair labour practice is any unfair act or omission that arises
between an employer and an employee involving the unfair suspension of an
employee or any other unfair disciplinary action short of dismissal in respect of an
employee.
 The third is any unfair act or omission that arises between an employer and an
employee involving the failure or refusal by an employer to re-instate or re-employ a
former employee in terms of any agreement.
 The fourth is an occupational detriment, other than dismissal, in contravention of the
Protected Disclosures Act.

o The procedure and implications for strikes (protected and unprotected)

and lockouts.

Industrial Action (Chapter IV and section 213 of the LRA)

Industrial action can take a number of forms, the most common being strikes, lock-outs and
picketing.

The definition of a strike in section 213 of the Act makes it clear that, before an interruption
to work will constitute a strike, it must be undertaken by more than one employee or former
employee – who need not all be employed, or have been employed, by the same employer –
and that the interruption must have a purpose: either to remedy a grievance or to resolve a
dispute relating to a matter of mutual interest between employer and employee. If any of
these elements is missing, the conduct is not a strike.

A lock-out is the exclusion of employees from its workplace by the employer but, once again,
the conduct must have a purpose. In this case, the purpose is to compel the employees to
accept a demand in respect of a matter of mutual interest between employer and employee.
An exclusion from the workplace that has some different purpose is not a lock-out.

Picketing is not defined but is described in section 69 as a gathering of trade union members
and supporters for the purpose of peacefully demonstrating in support of a protected strike
or in opposition to a lock-out.

In section 64 the 1995 Act prescribes a simple procedure to be followed in order to ensure
that a strike or lock-out is protected. The Act also creates an active and effective mechanism
for the conciliation of disputes in the field of industrial action. The intention was to reduce the
number of disputes that depend upon industrial action for their resolution.

Nevertheless, and irrespective of the pre-strike procedure followed, section 65 of the Act
limits the right to strike and the recourse to a lock-out in certain instances. Strikes and lock-
outs are for instance not permitted where the issue in dispute is regulated by a current
agreement, where the issue in dispute is capable, in terms of any employment law, of being
referred to arbitration or the Court, and in an essential or maintenance service. One of the
effects of this legislation is that, in general terms, strikes over so-called disputes of right are
not protected. An exception to this general statement is to be found, however, in the
provisions of section 65(2)(a) of the Act which provides that a person may take part in a
strike or a lock-out or in any conduct in contemplation or in furtherance thereof if the issue in
dispute is about any matter dealt with in sections 12 to 15. Sections 12 to 15 of the Act deal
with so-called organisational rights, in particular the right of trade union access to a
workplace; the right to have trade union subscriptions deducted by the employer and paid
over to the trade union; the right to elect trade union representatives; and a trade union
office bearer’s right to leave for trade union activities. Despite the fact that these may be so-
called disputes of right, strikes and lock-outs are allowed in order to resolve such disputes.

In terms of section 189A of the LRA, strikes are also allowed in respect of disputes relating
to dismissals for operational requirements in certain circumstances. Section 67 of the Act
provides that a strike or lock-out in compliance with the Act constitutes neither a delict not a
breach of contract.

An employee involved in a protected strike may not be dismissed for striking. They may,
however, be dismissed for misconduct committed during the course of a strike, or for
reasons relating to the employer’s operational requirements.

Where a strike or lock-out does not take place in compliance with the provisions of the Act,
various sanctions are available in terms of the provisions of section 68. The Labour Court
has jurisdiction to interdict the unprotected strike or lock-out and to award just and equitable
compensation for any loss attributable to such strikes or lock-outs. Employees who take part
in a strike that does not comply with the Act may furthermore be dismissed. This dismissal
must however still be for a fair reason and in compliance with a fair procedure. The
requirements are set out in the code of good practice in Schedule 8 to the Act. Although
participation in an unprotected strike is a form of misconduct, dismissal must, as usual, be
an appropriate sanction and should not take place without audi alteram partem being applied
to the strikers.

A strike generally involves a stoppage of work, but there are several forms of industrial
action which may fall short of full-blown work stoppages yet may still be strikes in terms of
the Act.

Some examples of these are:

 Overtime bans: An overtime ban is a collective refusal by employees to perform

overtime work, whether this is voluntary or compulsory. Provided that they comply
with the provisions of the Act insofar as they relate to protected strikes, the
employees exert pressure on the employer without losing their normal wages or
subjecting themselves to disciplinary action.
 Work-to-rule and go-slows: These are both forms of partial strikes in the sense that
the employees continue working but, in the former case, only as far as the letter of
their contracts requires and, in the latter, at a slower pace than normal.
 Intermittent and repeat strikes.

It must be remembered that the principle of no-work-no-pay applies whether a strike is

protected or unprotected.

An employer faced with a protected strike therefore has the following options:

 resolve the dispute;

 employ alternative labour on a temporary basis; or
 sit out the strike.

Strikes and lock-outs (sections 64, 65, 67, 68 and 213)

Strikes and lock-outs are dealt with in Chapter IV of the LRA.

Important definitions include the following:

 (i) “Strike” means the partial or complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed by the same
employer or by different employers, for the purpose of remedying a grievance or
resolving a dispute in respect of any matter of mutual interest between employer and
employee and every reference to “work” in this definition includes overtime work,
whether it is voluntary or compulsory.
(ii) “Lock-out” means the exclusion by an employer of employees from the employer’s
workplace, for the purpose of compelling the employees to accept a demand in
respect of any matter of mutual interest between employer and employee, whether or
not the employer breacher those employees’ contracts of employment in the course
of or for the purpose of the exclusion.
(iii) “Issue in dispute”, in relation to a strike or lock-out, means the demand, the
grievance, or the dispute that forms the subject matter of the strike or lock-out.
(iv) “Dispute” includes an alleged dispute.
(v) “Protest action” means the partial or complete concerted refusal to work, or the
retardation or obstruction of work, for the purpose of promoting or defending the
socio-economic interests of workers, but not for a purpose referred to in the definition
of strike.

The LRA provides a simple procedure to ensure that a strike or lock-out is protected. All that
is required is that the dispute be referred for conciliation either to a council (where one exists
with jurisdiction in respect of the dispute) or to the Commission. Once that body issues a
certificate to the effect that the dispute remains unresolved, or if the dispute remains
unresolved for a period of 30 days (or any extension of that period agreed to between the
parties) then employees are entitled to engage in a protected strike after notice to the
employer. At least 48 hours’ notice in writing of the commencement of the strike must be
given to the employer unless the employer is the State. The State is entitled to receive at
least seven days’ notice.

No person may take part in a strike or lock-out where:

(i) that person is bound by a collective agreement that prohibits a strike or a lock-out in
respect of the issue in dispute;
(ii) that person is bound by an agreement that requires the issue in dispute to be
referred to arbitration;
(iii) the issue in dispute is one that a party has the right to refer to arbitration or to the
Labour Court in terms of any employment law.

However, it should be noted that an exception is made in the case of disputes

relating to organisational rights and to certain retrenchments, dealt with in section
189A, in which case the parties have the choice to strike or to refer the matter for
arbitration/adjudication;

(iv) that person is engaged in an essential service or a maintenance service.

Likewise, a person may not take part in a strike or lock-out where that person is bound by
any arbitration award or collective agreement that regulates the issue in dispute, by any
determination made in terms of section 44 by the Minister that regulates the issue in dispute,
or by a ministerial determination or one made in terms of the Basic Conditions of
Employment Act, during the first year of that determination.

It is important to note that a person participating in a protected strike or protected lock-out

will not commit a delict or a breach of contract. This means that a protected strike or lock-out
cannot be interdicted and a claim for damages for participation in such a strike or lock-out
will fail. Unlawful behaviour perpetrated during a strike, even a protected strike, may
however be interdicted or lead to a successful claim for damages. In addition, employees
cannot be dismissed for participating in a protected strike.

Secondary strikes, picketing, protest action and temporary replacement labour

(sections 66, 69,76, 77 and 213)

A “secondary strike” means a strike, or conduct in contemplation or furtherance of a strike,

that is in support of a strike by other employees against their employer but does not include
a strike in pursuit of a demand and referred to a council if the striking employees, employed
within the registered scope of that council, have a material interest in that demand.

Such a secondary strike must comply with section 66 of the Labour Relations Act. The strike
which is being supported must be protected; seven days’ notice of the secondary strike must
have been given to the employer; and the nature and extent of the secondary strike must be
reasonable in relation to the possible direct or indirect effect that it may have on the business
of the primary employer.

The provisions of section 69 relate to picketing. A trade union may authorise a picket by its
members for the purposes of peacefully demonstrating in support of any protected strike or
in opposition to any lock-out. Such picket may be in any place to which the public has
access but outside the premises of an employer unless the employer gives permission for it
to take place inside its premises or unreasonably withholds such permission. Picketing may
also, in certain cases, take place on premises owned or controlled by someone other than
the employer.

Section 77 deals with protest action to promote or defend the socio-economic interest of
workers. Every employee who is not engaged in an essential or maintenance service has the
right to take part in protest action provided such action has been called by a registered trade
union or federation of trade unions, the matter has been considered by NEDLAC or any
other appropriate forum and at least 14 days’ notice has been given to NEDLAC of the
intention to proceed with the protest action,

The provisions of section 76 deal with the question of replacement labour. Generally, and
employer may use replacement labour during a strike, whether the strike is protected or
unprotected. However, an employer may not take into employment any person to continue or
maintain production during a protected strike if the whole or part of the employer’s service
has been designated a maintenance, or for the purpose of performing the work of an
employee who is locked out unless the lock-out is in response to a strike. Where the
employer has locked out workers in response to a strike, but the strike has been suspended
or abandoned, the employer may no longer employ replacement labour in its attempt to
enforce its lock-out demands.

Essential services and maintenance services (sections 70, 71, 72, 73, 74, 75 and 213)

The LRA provides for the establishment of an Essential Services Committee which will, inter
alia, determine whether a particular service is an essential service.

An “essential service” is defined as:

(i) a service, the interruption of which endangers the life, personal safety or health of the
whole or any part of the population;
(ii) the parliamentary service; and
(iii) the South African Police Service.
It has been held, however, that employees of the South African Police Service employed in
terms of the Public Service Act – in other words, support staff rather than employees
engaged in core police functions – are not engaged in an essential service and are therefore
not prohibited from striking.

A maintenance service is a service – designated a maintenance service by the Essential

Services Committee – the interruption of which has the effect of material physical destruction
to any working area, plant or machinery.

o Basic Conditions of Employment Act 75 of 1997; Occupational Health

and Safety Act 85 of 1993; and the Unemployment Insurance Act 63 of
2001.

Basic Conditions of Employment Act 75 of 1997

The objectives of the BCEA are to establish minimum working conditions for all South African
workers, regarding matters such as annual leave, sick leave, payment for overtime, hours of
work, termination of employment and so forth. The Act does not regulate minimum wages.
That is the functions of the National Minimum Wage Act which currently prescribes a national
minimum wage of R25.42 for each ordinary hour worked.

Selected contents of the BCEA

Regulation of working time

 Ordinary hours of work

Section 9 provides that the maximum hours of work are 45 hours per week and 9 hours per
day (if the employee works for 5 days a week). Employees who work more than 5 days a
week may only work for 8 hours a day. A day means a period of 24 hours measured from the
time when the when the employee normally commences work.

 Overtime

Employees may only be required to work overtime in accordance with an agreement with
their employer. An agreement to work overtime that is contained in an employee’s initial
employment contract is only valid for one year and must be renewed thereafter. Employees
may not work overtime of more than 3 hours per day or 10 hours per week. Remuneration
for overtime is at one and a half times the employee’s normal remuneration. The daily
maximum hours may be extended by agreement.

 Pay for work on Sundays, night work and working on public holidays

An employer must pay an employee who works on a Sunday, but who ordinarily does not
work on a Sunday, at double the normal hourly rate for each hour worked. In the case of an
employee who ordinarily works on a Sunday, the employer must pay the employee at one
and a half times the employee’s wage for each hour worked on the normal hourly rate.

Night work means work performed after 18:00 and before 06:00 the next day and is subject
to the payment of an allowance and the availability of transport between residence and
workplace. Payment for work on public holidays is dealt with in section 18. Different rates
apply depending on whether the public holiday falls on a day which is normally a working
day for the employee concerned and whether the particular employee works or does not
work on the holiday in question.
Leave

Chapter 3 of the Act regulates annual leave, sick leave, maternity leave, parental leave,
adoption leave, commissioning parental leave and family responsibility leave.

 Annual leave

For each 12 consecutive months of employment, an employee is entitled to at least 21

consecutive days of annual leave on full remuneration. By agreement between the employee
and employer, the employee may be entitled instead to one day of annual paid leave for
every 17 days on which the employee worked or was entitled to be paid, or, again by
agreement, one hour on full pay for every 17 hours worked or entitled to be paid.

 Sick leave

An employee is entitled to six weeks’ paid sick leave during a sick leave cycle of 36 months
subject to the production of medical certificates under certain circumstances.

 Maternity leave

The Act also provides that an employee is entitled to receive at least four consecutive
months’ maternity leave. Such leave may be unpaid.

Maternity leave may commence four weeks before the expected date of birth or on a date
from which a medical practitioner or a midwife certifies that it is necessary for the employee’s
health or that of her unborn child that she should be on maternity leave. No employee may
work for six weeks after the birth of her child unless a medical practitioner or a midwife
certifies that she is fit to do so.

 Parental leave

An employee, who is a parent of a child, is entitled to at least ten consecutive days parental
leave, when the employee’s child is born, or adoption is granted, or the child is placed in the
care of a prospective adoptive parent by a competent Court; pending the finalisation of an
adoption order. The same employee cannot claim both maternity leave and parental leave
with regards to the same child.

 Commissioning parent/s and adoption leave

An employee who is an adoptive (or commissioning) parent of a child who is below the age
of two, is entitled to at least 10 weeks adoption (or commissioning parent) leave
consecutively or to parental leave as stated above.

 Family responsibility leave

All employees who have been in employment with the employer for longer than four months
and who work for at least four days a week for the employer qualify for three days’ paid
family responsibility leave in each 12-month period of employment. Such leave may be taken
when the employee’s child is born, the employee’s child is sick or in the case of the death of
a spouse, life partner, parent, grandparent, child, grandchild or sibling.

Termination of employment

Notice of termination of employment must be given in writing except where it is given by an

illiterate employee. If given by an employer, it may not be given during any period of leave
granted in terms of the Act and may not run concurrently with any such period of leave,
except sick leave.

The minimum periods of notice are as follows:

 one week, if the employee has been employed for six months or less;
 two weeks if the employee has been employed for more than six months, but less
than one year;
 four weeks, if the employee has been employed for one year or more, or if the
employee is a farm worker or a domestic worker who has been employed for more
than six months.

The employer may pay the employee instead of giving notice.

The notice provisions do not derogate from the employer’s right to dismiss an employee
summarily, in appropriate cases, that is without notice, or from the requirement that dismissal
may only take place fairly and in terms of the provisions of the Labour Relations Act.

3.4 Alternative Dispute Resolution

 Defining and understanding: What is a conflict;

Conflict is disagreement, but contrary to popular belief conflict does not necessarily involve
fighting. Conflict exists in any situation where facts, desires or fears pull or push participants
against each other or in divergent directions.

Types of conflict

 Interpersonal conflict refers to a conflict between two individuals.

 Intrapersonal conflict occurs within an individual.
 Intragroup conflict is a type of conflict that happens among individuals within a team.
 Intergroup conflict takes place when a misunderstanding arises among different
teams within an organisation.

 Distinction between adversarial proceedings and facilitative /

consensus-building processes;

Difference between negotiation, mediation, arbitration and litigation

Negotiation Mediation Arbitration Litigation

Voluntary Voluntary unless Voluntary unless Non-voluntary
contractual or contractual or
statutory statutory
Non-binding (unless Non-binding (unless Binding, no appeal Binding, subject to
use litigation to use litigation to (possibility of appeal
enforce agreement) enforce agreement review)
No third party Party selected Party selected Imposed third party
outside third party outside third-party neutral decision
with mediation skills decision maker, maker
usually with
specialised subject
matter expertise
Informal / Informal / Procedurally less Formal procedures
unstructured unstructured formal, procedural conducted in terms
 rules and of predetermined,
substantive criteria rigidly-applied rules
may be designed by
parties
Presentation of Presentation of Opportunity for each Opportunity for each
evidence and evidence and party to present party to present
argument usually argument less evidence and evidence and
indirect or non- important than the argument supporting argument supporting
existent; may attitude and interest decision in its favour decision in its favour
include principled of each party; may
argument include principled
argument
Mutually acceptable Mutually acceptable Compromise result Win / lose result
agreement sought agreement sought possible but usually based on principles
win / lose. Criteria of law
for decision may be
set by parties
Agreement usually Agreement usually Reasoned award Expectation of
embodied in embodied in usual but not reasoned judgment
contract contract necessary
Emphasis on Emphasis on Consistency and Process emphasises
disputant’s disputant’s predictability obtaining
relationship not on relationship not on balanced against substantive
adherence to or adherence to or concern for consistency and
development of development of disputants’ interests. predictability of
consistent rules consistent rules Precedents usually results. Binding
only informally precedents
established established
Highly private Private process Private process Public process, lack
process unless on review or of privacy of
when judicial proceedings
enforcement sought

 Negotiation;

Role of Legal Representatives

Determine if the dispute can be negotiated. Assist the parties in engaging with the other
party. Prepare the client in determining their positions, interests and BATNA [?]. Draft the
negotiated agreement or contract.

What is negotiation?

Negotiation is an interactive process that involves two or more interdependent parties who
communicate in an effort to reach agreement over a problem or conflict of interest between
them; and in which they seek as far as possible to preserve their interests but adjust their
views and positions in the joint effort to achieve an agreement.

Structure of negotiation

When people negotiate one needs to be mindful of the Content (substance), Process and
Relationship (people.
Content: This concerns the subject matter of the negotiation e.g., negotiations about salary
or the sale of a motor vehicle.

Process: This concerns how the parties negotiate.

Relationship: This concerns how the parties treat each other.

 Conciliation;

See notes above on conciliation.

 Mediation;

Role of Legal Representatives

Consider the dispute and determine if it is suitable for mediation. Need to convince the other
side of the process if there is no mediation clause. Assist in preparing for a mediation,
selecting a mediator and drafting a mediation agreement if the mediator does not provide
one. Prepare the client by exploring the interest and needs of the client. Consider the
BATNA’s in this process.

Definition of mediation

Mediation is a confidential process in which parties in conflict voluntarily enlist the services of
an acceptable neutral third party to assist them in reaching an agreement on contested
issues.

Typical mediation process

Mediation is a voluntary, flexible process and can be adapted to the circumstance of each
situation that presents itself. It is important to bear in mind that mediation is voluntary in its
inception as well as continuation. Typically, the mediation process consists of a rough
structure which can be modified however the various elements will be canvassed during the
mediation. A mediation is confidential and without prejudice by a neutral, impartial third party.
The process tends to be speedier and significantly cheaper than arbitrations and litigation.
The outcome of the dispute is determined by the parties while the mediator manages the
process. In this way mediation provides for creative solutions and the opportunity to preserve
ongoing relationships.

Step 1: Here the mediator makes contact with the parties individually, gives a brief
introduction to the mediation process and invites both parties to sign an agreement to
mediate. This is done to demonstrate the willingness of both parties to mediate, as mediation
is a voluntary process.

Step 2: The Mediation: The Mediator opens the mediation, sets the ground rules, explains
confidentiality, and allows each party to make an opening statement.

Step 3: Side session: The Mediator might break into side-sessions to build trust and in so
doing clarify the issues, explore the interests, BATNA and realities of all parties. The
sessions also remain confidential.

Step 4: Exploration: This can be done to brainstorm solutions and can be done in the side-
sessions initially but then the mediator should move it to a joint session so that both parties
can participate in reaching their own solution.
Step 5: The Mediator concludes the process by drafting a mediation agreement or getting
the legal representatives of each party to do so.

Mediation is encouraged where:

 The Court cannot provide the relief that the parties need.
 The parties wish to settle promptly.
 The parties wish to minimise costs.
 Voluntary compliance is desirable.
 The party/parties wish to avoid a Court precedent.
 The parties have difficulty negotiating.
 The parties lack negotiating skills.
 The parties assess the facts differently.
 The parties have a continuing relationship.
 The parties want to maintain confidentiality.

Mediation does not work where:

 The party/parties cannot represent their best interests.

 The client wants a Court precedent.
 Issues of status are involved.
 Wills are being contested.
 One of the major parties is unwilling to mediate.
 One party adamantly denies liability.
 One party is likely to go insolvent.

 Court-annexed mediation processes in terms of Rule 41A of the Uniform

Rules of Court;

Rule 41A requires parties to disputes in the High Court to consider mediation before
proceeding with litigation.

If either party is of the opinion that the matter is not capable of being mediated then reasons
for such opinion must be submitted in a Mediation Notice.

Failure to comply with Rule 41A or to agree to mediation may lead to an adverse cost award
at the end of the trial.

 Role of the Chairperson/Presiding Officer in ADR proceedings;

[?]

 Arbitration;

Role of Legal Representatives

Consider if the matter is suitable for arbitration, check that there is an arbitration clause in
the contract (assist in drafting the arbitration agreement), prepare for the arbitration (pre-arb
meeting, drafting of documents, gathering of evidence), prepare your client (determine the
rights which are being violated), scrutinise the arbitration award and consider if review is
required.

What is arbitration?
Arbitration is a formal process where a third party is empowered to make a decision when
two parties are in dispute.

Characteristics of arbitration

Arbitration is a useful mechanism of dispute resolution where parties want the dispute to
remain confidential, when a speedy resolution is desired, where a certain expertise is
required to resolve the dispute or when finality is sought.

Disputing parties in principle enter an arbitration voluntarily. Once the have agreed to
arbitrate however they cannot back out of the process as is the case with mediation.

There is no right of appeal to the Courts against the decision of an arbitrator. There is only a
right of review.

The disputants are able to select their arbitrator. In selecting an impartial third party the
disputants will have confidence in the competence and the neutrality of the arbitrator. A
consequence of this is that there is higher rate of compliance with the Arbitrator’s award.

The disputants also determine the issues for determination, so the underlying issues and
interest are usually addressed during the arbitration.

In arbitration the process can be designed to suit the circumstances, being as simple or
complex as is required. There are instances where arbitrations are more expensive that
Court matters because the costs for the arbitrator need to be covered. However, arbitrations
tend to be speedier than Court cases.

Typical arbitration process

In terms of Section 1 of the Arbitration Act parties must agree to arbitrate in writing, identify
all the parties, define the dispute and in terms of section 14, define the powers of the
arbitrator. The agreement should provide for the appointment of a specific arbitrator, indicate
when and where the arbitration is to take place, specify how the proceeding will be recorded,
set out who will attend the process and how the costs will be addressed. The agreement to
arbitrate should also set out the procedure to be followed, make provision for interpretation if
required and finally specify when and in what form the arbitrator’s award should be given.

The steps of a typical arbitration are as follows:

Step 1: Pre-arbitration, housekeeping, postponements and points in limine.

Step 2: Opening and narrowing of issues.
Step 3: Evidence-in-chief.
Step 4: Cross-examination.
Step 5: Re-examination.
Step 6: Closing statements.
Step 7: Writing of the arbitration award.

 The role of ADR in litigation, and the role of the mediator and arbitrator

[?]

 Ethics involved in conciliation (conflicts of interest, confidentiality,

mediator liability)

See ethics notes above and apply accordingly.

3.5 Matrimonial Law

o To understand marriage in Community of property and out of

Community of property, and the effect and implications
hereof on the various types of contracts.

Systems available

Since the commencement of the Matrimonial Property Act 88 of 1984, there are three forms
of matrimonial property systems available, namely:

In community of property

This system is governed by sections 14-20 of the Matrimonial Property Act. This remains the
most popular form of matrimonial dispensation, although there are some flaws to this model,
namely that two estates are joined, and each party has right of disposal over the assets of
the joint estate – see section 15. Although consent is required from the other party to
alienate or encumber estate assets, written consent is only required in certain cases.

No consent is required for transactions performed by a spouse in the ordinary course of their
profession, trade or business (section 15(6)).

In the final analysis there is financial equality (at times to the detriment of the other party, for
example in the case of insolvency) but no juristic equality (for example consent is
theoretically required in order to trade with estate assets). Certain assets may be excluded
from the joint estate, for example testamentary, but this category is limited.

The proprietary consequences of customary marriages concluded before 15 November 2000

remains the same, i.e., still governed by customary law. Customary marriages entered into
after this date are in community of property and of profit and loss unless such consequences
are specifically excluded by the spouses in an antenuptial contract that regulate their
matrimonial property system. Chapter III and sections 18, 19, 20 and 24 of Chapter IV apply
to customary marriages concluded after 15 November 2000.

Section 18 of the Matrimonial Property Act was amended with the result that one spouse
may now recover patrimonial damages for bodily injury caused by the other spouse where
they are married in community of property. The damages do not form part of the joint estate,
but part of the separate assets of the injured spouse.

Out of community of property with accrual

With due consideration to the fact that a successful marriage is based on equality and is
managed as a partnership, this model must surely be the most appropriate and ideal system.
It provides for an equal sharing of the profits (accrual) made by the parties during the
marriage. Assets which the parties had prior to their marriage can either be included or
excluded in the accrual (should no assets or the commencement value of the estates be
specified in the antenuptial contract, it is deemed that the value of the estates at the
commencement of the marriage was nil). Further, assets which are inherited, or non-
patrimonial damages as well as donations are excluded from accrual, unless the spouses
agree otherwise in their antenuptial contract or in so far as the testator or donor may
stipulate otherwise.
Upon dissolution of the marriage, whether it is by death or divorce, the net estate values are
determined separately, and the larger estate must then transfer half of the difference to the
smaller estate.

The commencement value (if any) to be subtracted from the assets must be adjusted with
the Consumer Price Index to make provision for any change in the value of money – see
section 4(1)(b)(iii) of the Matrimonial Property Act.

Finally, take note that in the case of divorce, application may be made to Court in terms of
section 9 of the Matrimonial Property Act for a declaration of forfeiture of the accrual benefit,
either wholly or in part.

In summary, the suggested steps to determine the accrual in a spouse’s estate are as
follows:

1. Draft a list of the assets at present day values.

2. Deduct the following:
 The commencement value as stated in the antenuptial contract and adjusted by
the weighted average of the Consumer Price Index.
 Assets excluded in the antenuptial contract, as well as any other asset acquired
by virtue of the possession or former possession of the excluded assets.
 An inheritance, legacy, or donation as well as any other asset acquired by
virtue of the possession or former possession of the inheritance, legacy or
donation. Donations between spouses inter vivos may only be deducted in its
original form as assets which replaced such donations are not excluded and
should therefore not be deducted when calculating the accrual – see section
5(2) which makes no reference to “any other asset”.
 Any amount received for a non-patrimonial loss (general damages), but such
an amount is not adjusted in any way, or any other asset acquitted with it. Only
the original amount is deducted (section 4(b)(i)).
 Debts/liabilities.

The net result is known as “the accrual” in the estate.

Out of community of property, accrual expressly excluded

This is the form of marriage where, by means of a notarial antenuptial contract, community
of property and profit and loss is excluded. The accrual system in terms of Chapter I of the
Matrimonial Property Act must be expressly excluded, otherwise it applies.

In this case there is, however, juristic equality in that each party has full right of disposal over
their own assets (in other words without prior consent from the other party), but there is no
financial equality in respect of any contribution the spouses have made in regard to
necessaries for the joint household in the absence of an agreement in terms of section
23(4). Should the husband stante matrimonio build up an estate, but the wife’s income is
used only for consumable household necessities, the wife has no claim to a share of the
husband’s estate, unless in terms of section 23(3) (marriages before 1 January 1984) or
section 23(4) (an agreement).

This model may be recommended where both parties already have substantial estates or
incomes and may also be appropriate in cases of second or further marriages. A will may be
a useful instrument to provide for the other spouse when the marriage is dissolved by death.

o Divorce Act, 70 of 1979, Matrimonial Property Act, 88 of

1984, Maintenance Act, 23 of 1963.
[?]

o Advice on marriage and its consequences; Ante-nuptial

contracts; Advice on out of community of property with or
without the accrual system and marriage in community of
property.

See the above.

o Divorce and its consequences.

Grounds for divorce

In section 4(2) of the Divorce Act 70 of 1979, three circumstances are set out which the
Court may accept as evidence of irretrievable breakdown of the marriage:
 that the parties have not lived together as husband and wife for a continuous period
of at least one year immediately prior to the date of the institution of the divorce
action. This does not necessarily mean that the man and wife have to live in separate
buildings, but you must keep in mind that the Courts are in general not willing to
(even on an undisputed basis) hear the case if the parties are still living in the same
house on the date of the hearing. There must be a reasonable explanation, but even
then, some judges will still not grant a decree of divorce.
 that the Defendant has committed adultery and that the Plaintiff finds it irreconcilable
with a continued marriage relationship if the Plaintiff is a party to an adulterous
relationship, it is not fatal for a final divorce order and it may be proof of a real
breakdown of the marriage. It is correct to disclose the adulterous relationship to the
Court.
 that the Defendant has in terms of a sentence of the Court been declared a habitual
criminal and is undergoing imprisonment as a result of such sentence.
 See Levy v Levy where the Appeal Court had decided that a Court had no discretion
to deny a divorce where the irretrievable breakdown of the marriage has been
proved.

Note that section 4(3) of the Act provides that the Court still has a discretion not to grant a
divorce order but postpone the proceedings sine die or even dismiss the claim if it appears
to the Court that there is a reasonable possibility that the parties may become reconciled
through marriage counselling, treatment, or reflection. The Summons also usually contains
the averment that further marriage counselling and/or treatment will not lead to any
reconciliation.

Section 5 sets out the circumstances under which the Court will grant a divorce order
because of mental illness or continuous unconsciousness.
 In the case of mental illness, the Defendant must have been admitted, in terms of the
Mental Health Act 18 of 1973, as a patient to an institution in terms of a reception
order, for a period of at least two years and in any case two psychiatrists (one
appointed by the Court) must satisfy the Court that there is no reasonable prospect
that the Defendant will be cured of their mental illness.
 In the case of unconsciousness, the Court will only grant the order if the Defendant
was unconscious for an continuous period of at least six months immediately prior to
the institution of the action and also after hearing the evidence of two medical
practitioners of whom one shall be a neurologist, or a neurosurgeon appointed by the
Court who must declare that there is no reasonable prospect that the Defendant will
regain consciousness.
In an action with section 5 as the causa, a curator ad litem must be appointed to protect the
interests of the Defendant and to assist the Court.

Keep in mind that where the parties live together again after the issue of Summons, it does
not necessarily end the causa or the action. If the attempted reconciliation is seemingly
unsuccessful after a few months, they can proceed on the same Summons. It is thus now
confirmed that the marriage has really broken down irretrievably even after the parties have
tried a final time to become reconciled. The notice of set down should be served on the
Defendant.

A customary marriage may be dissolved only on account of an irretrievable breakdown in the

marriage and only if the High Court, Family Court or Regional Court is satisfied that the
marriage relationship between the parties has reached such a state of disintegration that
there is no reasonable prospect of the restoration of a normal marriage relationship between
them.

Non-compliance

Non-compliance with the Divorce Order, Deed of Settlement or Parenting Plan by the
custodian parent regarding contact with (“access”) a child may lead to the target parent
making use of one of the following remedies:

1. An application for variation of the order in terms of section 8 of the Divorce Act. An
Applicant needs to show good cause for variation of a Court Order. The onus of
proving a variation of the care and primary residence to be in the child’s best interest
rests upon the “non-custodial” parent.
2. Laying a criminal charge in terms of section 35(1) of the Children’s Act, which
provides that any person having the care or custody of a child who, contrary to an
order of any Court or to a parental responsibility and rights agreement (parenting
plan) that has taken effect by being registered with the Family Advocate or being
made an Order of the Court, refuses another person who has access to that child, by
preventing that person from exercising such access is guilty of an offence and liable
on conviction to a fine or to imprisonment for a period not exceeding one year.
3. An application to the High Court for imprisonment for contempt of Court.
Unintentional failure to comply with a Court Order is not contempt of Court.
Intentional failure to comply with the Court Order will therefore have to be proved.

o The best interests of the child principle.

The child’s best interest principle exists in terms of the Children’s Act 38 of 2005. Children
and their rights are significant for the security of society and the preservation of humanity.
South Africa ratified the United Nations Convention on the Rights of the Child on 16 June
1995. The preamble of the Convention on the Rights of the Child states that by reason of a
child’s physical and mental immaturity, children must be safeguarded and provided with legal
protection prior to and after birth. This is in agreement with the provisions of the Constitution,
particularly the rights to human equality, dignity, life, citizenship, education and the rights of
the child as stipulated in section 28.

A child, according to the Convention on the Rights of the Child, is “every human being below
the age of eighteen years unless majority is attained earlier”.

Section 28(2) of the Constitution provides that a child’s best interests are paramount. The
point of the child’s best interest principle is to ensure that in the application of the section 36
limitation clause the interests of the child are not just considered but prioritised.
The principle is also explained in further points below.

o Maintenance of children and, if applicable, former spouses.

Maintenance

Spousal Maintenance

Maintenance is seen as a contractual aftermath of the maintenance obligation between

spouses in a marriage.

The Court indicated that, in considering maintenance, the Court’s aim should be to ensure a
clean break between the spouses if this is at all possible. Little or no maintenance will be
awarded to a wife if one or more of the following factors are present:
 He or she is young or “reasonably young”.
 He or she is well qualified.
 He or she has no children or no young children.
 He or she has worked throughout their married life and/or is working at the time when
he or she applies for maintenance.
 He or she is in good health.
 The marriage was of short duration.

The Court will rather consider if certain assets can be transferred in a claim in terms of
section 7(3) to put the wife in a financial position to satisfy their need for maintenance.

If there are not adequate or enough assets, the alternative is rehabilitative maintenance to
put the spouse in a position to re-enter and settle themselves again in the labour market.
Rehabilitative maintenance is paid for a fixed period and after that the liability terminates.

The parties’ respective earning capacities are particularly important when deciding whether
to grant maintenance.

In cases where the parties cannot reach an agreement, section 7(2) of the Divorce Act
stipulates that the Court may make any maintenance order taking into account the following
factors:
 Current or expected wealth;
 Earning capacities;
 Financial needs and obligations;
 Ages of the parties;
 Duration of the marriage;
 Standard of living before divorce;
 Behaviour as far as it is relevant to the breakdown;
 Any other factor that the Court feels has to be taken into account.

Practice has shown that age, duration of the marriage and earning capacity are the most
important factors.

As far as need is concerned, the focus is on necessities for life, namely food, clothing,
housing, medical costs, etc., but dependant on the parties’ standard of living, such “luxuries
as holidays, motor vehicles etc. can also be seen as a “need”. The general test is in principle
to get as close to the standard of living before divorce, but in practice it is not always
possible.

Nominal maintenance
If a spouse does not obtain an order for maintenance at the time of the divorce, that right is
lost to them and does not revive in the future. The purpose of nominal maintenance is to
keep that right alive which will only be granted by the Court in limited circumstances.

It is “symbolic” maintenance of R1.00 per month that leaves open the back door for an
increase if and when the need develops. The test is till that there has to be a need or the
need has to be realistically anticipated. The Courts are not ad idem as to how direct the
need must be.

Dum casta clause

It is important to keep in mind that when drafting a Deed of Settlement, it should be clearly
stipulated (the so-called dum casta clause) that the maintenance obligation will cease when
the other party remarries or lives together as husband and wife with any person (or any other
restrictive condition the parties agree upon) otherwise the maintenance order will continue
even if the receiver of the maintenance remarries or lives together as husband and wife with
another person.

Children’s maintenance

The Maintenance Act 99 of 1998 applies.

Section 15(1) of the Maintenance Act states that a maintenance order is directed at the
enforcement of the common law duty of the child’s parents to support that child. The basic
principle is that there is a reciprocal maintenance obligation in accordance with both parent’s
respective abilities.

The first step is to determine the reasonable need of the child/children on a monthly basis.
Although it is not a hard and fast rule, in practice the child/children’s share of common
expenses is often determined by allocating one part per child and two parts to a grownup in
the case of shared expenses.

Once a particular child’s reasonable monthly need has been calculated, the next step is to
establish what contribution both parties are obliged to make to the monthly need.

The formula to determine such a contribution is:

R ( parent ' sgross income) R(chil d ' s need )

×
R (total gross income of both parents) 1

=R(parent’s contribution as a starting point for negotiation/consideration.

The party, be it the mother or the father, who is responsible for the day to day care of the
children, usually indirectly contributes more which should balance out the time spent with the
payer of the maintenance. The reason being that maintenance cannot only be measured in
monetary terms.

Section 15(2) of the Maintenance Act states that the duty of parents to maintain extends to
such financial support a child reasonably requires for his or her proper living and upbringing,
and includes the provision of food, clothing, accommodation, medical care and education.

Maintenance should be adjusted regularly in accordance with changed circumstances

regarding the children’s needs or abilities of the parties. Whenever the need arises an
application may be made to the appropriate Court for:
  A maintenance order;
 Decrease of the maintenance order;
 Increase of the maintenance order;
 Setting aside of the maintenance order.

Maintenance for dependent children

Courts have always realised that attainment of majority does not automatically render
children financially independent. Further, that even after reaching the age of majority, there
are children who may still need financial support of their parents. This is also true in modern
times where children who attain the age of majority have not attained the necessary skills
that would enable them to be economically active.

While it appears to have been accepted that dependent children do have a right to claim
maintenance from their parents, the nature and extent of the maintenance that can be
claimed has been somewhat contentious. In this respect, neither the legislature nor the
Courts have laid down the test that should be used to determine the maintenance that
should be awarded.

The parental responsibility to maintain children who have attained the age of majority, but
not yet self-sufficient appears limited to the means available to parents and the actual needs
of their children who are in need of financial support. For example, there are children who
may need financial assistance for the payment of their education, which can increase their
chances of success in life.

In terms of section 15(1) of the Maintenance Act, a maintenance order for the maintenance
of a child is directed at the enforcement of the common law duty of the child’s parents to
support that child, as the duty in question exists at the time of the issue of the maintenance
order.

The Maintenance Act is silent on the issue of duration of the duty to support. According to
the common law, a parent has a duty of support until the child becomes self-supporting. A
child who, for example, suffers from some illness or disability, will never become self-
supporting, even if he or she might reach old age.

When one of the child’s parents passes away, the primary obligation to maintain the child will
rest with the surviving parent.

Termination of the responsibility to maintain

Maintenance can be for a specific period, like rehabilitative maintenance, but the
maintenance order for a wife will lapse after remarriage by or death of the wife if the order
was made in terms of section 7(2) of the Divorce Act by the Court.

If the order was made in terms of section 7(1) – in terms of an agreement – the maintenance
will not lapse after the death or remarriage of the wife, unless so specified in the agreement
(the so-called “dum casta” clause). The maintenance will also lapse on the death of the
payer, unless specifically agreed otherwise.

Co-habitants claiming maintenance

With regard to co-habitants, there is no legal obligation on a party to maintain his “wife” or
“life partner” in an intimate cohabitee relationship. Although no reciprocal duty of support
arose by operation of law in the case of unmarried persons, there was nothing precluding
such duty from being regulated by agreement.
Forum

Maintenance problems will normally be dealt with in the Maintenance Court, which is a much
cheaper forum. The High Court still has jurisdiction but will frown at the idea of variation of
maintenance orders being brought to it.

Applications

Stante matrimonio

There is a common law obligation on a husband to maintain his wife and vice versa and if
they fail to do so during the marriage, the other party can approach the Maintenance Court
for an appropriate maintenance order.

Applications

Divorce action (Rule 43 – Rule 58 Regional Court)

This is covered more fully in the notes relating to a Rule 43 application. The Maintenance
Court does have jurisdiction to make a maintenance an order while a divorce action is
pending but does not have jurisdiction to make an order regarding a contribution towards
costs.

Non-compliance of order

If a party fails to pay in terms of a maintenance order, there are various avenues of recourse
available to the aggrieved party.

Criminal complaint in terms of section 31 of the Maintenance Act

If the maintenance is payable in terms of an order of Court, section 31 of the Maintenance

Act makes the failure to pay maintenance an offence and the person who fails to make
payment becomes liable on conviction to a fine or to imprisonment for a period not
exceeding 1 year or to such imprisonment without the option of a fine.

Civil execution or garnishee order

In terms of section 24 and section 26 of the Maintenance Act, the Complainant may issue a
Warrant of Execution against the Defendant for the amount in arrears, together with interest
thereon. Where a person against whom a maintenance order has been granted by the High
Court or Divorce Court fails to make any particular payment in accordance with the order,
that order is enforceable in respect of the arrear amount by execution. If the payment has
remained unsatisfied for a period of 10 days from the day on which the relevant amount
became payable or any such order was made, as the case may be, the person in whose
favour any such order was made may apply to the Maintenance Court where that person is
resident for:
 The issue of a Warrant of Execution;
 An order for the attachment of emoluments; or
 An order for the attachment of any debt.

Retention of withdrawal benefit in provident fund for payment of future maintenance

Contempt of Court
Blacklisting

Claim against Maintenance Court officials

Foreign countries

o Drafting particulars of claim and a plea.

o Customary marriages, and Muslim marriages.

There are a lot of uncertainties and inconsistencies regarding customary marriages in South
Africa. The law around customary marriages continues to be developed on a case-by-case
basis. Customary marriages come about through a series of events or principles derived
from different customs and traditions. In terms of section 39(2) of the Constitution, customary
law was recognised to have “equal status” as the common law and South African Courts are
given wider powers to interpret and develop customary law.

Customary marriages were first recognised in South African law through the Recognition of
Customary Marriages Act 120 of 1998.

A customary marriage is one that is concluded in accordance with customary law, and the
Act defines “customary law” as “the customs and usages traditionally observed among the
indigenous African peoples of South Africa and which form part of the culture of those
peoples”.

Only South African citizens can enter into a customary marriage. If a South African citizen
enters into a customary marriage with a foreigner, it will not be classified as a customary
marriage.

The Act recognises marriages that are valid under customary law and existing before 15
November 2000 or that are customary marriages entered into after 15 November 2000 that
comply with the provisions of the Act. The recognition applies to each of a person’s
customary marriages where a person is a spouse in more than one customary marriage. The
Act allows a person to have more than one marriage with different persons at the same time
(polygamous marriages). Polygamous marriages can only be legal if all the marriages are
customary marriages. A person is not allowed to have a customary marriage and a civil
marriage at the same time with different parties; however, a couple who is married with each
other in terms of customary law may enter into a civil marriage with each other as well.

Statutory requirements for customary marriages

For a customary marriage to be considered valid in terms of the Act, some requirements
must be met, namely:

 the prospective spouses must be above the age of 18 years;

 both spouses must consent to be married to each other under customary law; and
the marriage must be negotiated and entered into or celebrated in accordance with
customary law. The spouse in a customary marriage cannot enter into a marriage
under the Marriage Act during the subsistence of the customary marriage unless both
husband and wife are married only to each other. Where the prospective spouse is a
minor, both parents or the legal guardian must consent to marriage, failing which
section 25 of the Marriage Act applies. If the child does not have parents or a legal
guardian, the child can approach a Commissioner of Child Welfare for consent.
 Should the parents, legal guardian or Commissioner of Child Welfare refuse consent,
the child can approach the High Court for consent as the High Court is the upper
guardian for all minor children in South Africa.

Although lobola has not been listed as a requirement in terms of the Act, it is well known
amongst African communities that lobola forms an integral part of a customary marriage.

The requirement that “the marriage must be negotiated and entered into or celebrated in
accordance with customary law” is one that has proven to be problematic in its application as
it has created uncertainty whether lobola negotiations alone are sufficient to conclude a valid
customary marriage or whether a celebration of such marriage is required in accordance to
customary law.

The ”or” in the requirement implies that the marriage can either be celebrated or not, namely,
a celebration is not a pre-requisite for the valid existence of the marriage.

The marriage must be “negotiated and entered into” in accordance with customary law. This
could generally mean that lobola negotiations are held, and parties enter into a marriage in
terms of their customs, which could entail introducing a bride or exchange of gifs. It is this
portion “and entered into or celebrated” that creates certain challenges in the application, as
one could interpret this to mean that following lobola negotiations, there must be certain
traditions that are performed, which could very well be the celebration of the marriage or
handing over of the bride, and on the other hand, the contract can be argued.

The handing over of the bride is not only about celebration, it also encompasses the
essential aspect associated with the married state, namely “go laya” that is coaching or
briefing of both the bride and groom by the elders of their rights, duties and obligations which
a marriage imposes on them. This is an important final step in the chain of events.

Handing over of the bride is what distinguishes mere cohabitation from marriage. Until the
bride has formally and officially been handed over to the groom’s people, there can be no
valid customary marriage.

It is important to note, however, that rituals and customs have never been static or frozen in
time, as they develop and change along with the society in which they are practised.

If spouses entering into a civil marriage want to change their matrimonial property system
that existed as a result of the customary marriage, they have to approach the Court in terms
of section 21 of the Matrimonial Property Act for the change of their matrimonial property
system before entering into a notarial (post-nuptial) contract by which their future
matrimonial property system is regulated. In terms of section 21 the notarial contract must be
sanctioned by the Court.

Proprietary consequences of customary marriages

The Recognition of Customary Marriages Act declares that a wife in a customary marriage
has equal status and capacity as her husband, including the ability to buy, own and sell
property and the ability to enter into contracts. Previously under customary law a wife had
been regarded as perpetually a minor under the control of her husband.

Section 6 of the Recognition of Customary Marriages Act provides that “a wife in a

customary marriage has, on the basis of equality with her husband and subject to the
matrimonial property system governing the marriage, full status and capacity, including the
capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in
addition to any rights and powers that she might have at customary law”.
Currently, customary marriages are automatically in community of property provided that
there is no antenuptial contract stating otherwise.

Dissolution of customary marriage

It is a common understanding that under many customs and traditions, “divorce” is not
recognised where a customary marriage is concerned. To address the unfavourable
consequences of this “understanding”, the Recognition of Customary Marriages Act makes
provision for the dissolution of a customary marriage.

Section 8 provides that “[a] customary marriage may only be dissolved by a Court by a
decree of divorce on the ground of the irretrievable breakdown of the marriage”. Important to
note is that the Act does not provide that such marriage must be registered before it can be
dissolved. Therefore, all valid customary marriages, whether registered or not, can be
dissolved by the Court.

Despite provisions being made in the Act for a dissolution of a customary marriage, many
couples married under customary law informally separate and move on with their lives
respectively, without formally getting a decree of divorce. The issue with such informal
separation is that such couples are unaware that despite their informal separation, they are
still considered to be validly married to each other.

As most customary marriages are in community of property (where an antenuptial contract

was not concluded), couples that just separate informally are not aware that they remain
legally entitled to an equal division of the joint estate and to claim certain benefits from the
other party. Failure to dissolve a customary marriage may also create barriers for a party that
wants to marry again; for example, a spouse in a customary marriage will be prevented from
entering into a civil marriage with another during the subsistence of a customary marriage.

As much as the Act has addressed many imbalances of the past and gender inequalities
relating to certain aspects of customary marriages, it is clear that South African communities
still lack the required knowledge of the operation and application of the Act.

Hindu marriages

The South African Law Reform Commission is currently considering this aspect.

Muslim marriages

The status of Muslim marriages in South Africa has, since 1990, been the subject of ongoing
investigation and discussion by the South African Law Reform Commission. In the
meantime, Muslim couples who choose to marry according to Islamic law can only be
afforded the protection of the South African legal system as it pertains to spouses if they, in
addition, register a civil marriage.

The Constitutional Court found that the Marriage Act and the Divorce Act are inconsistent
with the rights entrenched in the Constitution of the Republic of South Africa, 1996 as they
fail to recognise marriages solemnised in terms of Sharia law, which have not been
registered as civil marriages, as valid marriages, and to regulate the consequences of such
recognition. The President, Cabinet and Parliament were given 24 months to remedy the
defective Acts by either amending existing legislation or initiating and passing new
legislation.
Pending the finalisation of this legislative process, the following regime will apply in the
interim to Muslim marriages: Muslim marriages subsisting at 15 December 2014 (being the
date when this action was initially instituted in the High Court) or which had been terminated
in terms of Sharia law as at this date, but in respect of which legal proceedings have been
instituted but have not been finally determined as at 28 June 2022 (the date of the
judgment), may be dissolved in accordance with the Divorce Act as follows:
1. All the provisions of the Divorce Act shall be applicable but Muslim marriages will be
treated as if they are out of community of property (except where there are
agreements to the contrary).
2. Section 7(3) of the Divorce Act shall apply to such a union regardless of when it was
concluded.
3. Where a husband is a spouse in more than one Muslim marriage, the Court will
consider all relevant factors and make any equitable order it deems just and may,
mero motu, order the joinder of an interested party.
4. From 28 June 2022, section 12(2) of the Children’s Act applies to a prospective
spouse in a Muslim marriage concluded after that date and for this purpose, the
provisions of sections 3(1)(a), 3(3)(a) and 3(3)(b), 3(4)(a) and 3(4)(b), and 3(5) of the
Recognition of Customary Marriages Act shall apply, mutatis mutandis, to Muslim
marriages.

o Care, contact, and primary residence of minor children.

Guardianship and care (“custody”)

Section 6 of the Divorce Act 70 of 1979 provides that a divorce order will only be granted if
the Court is satisfied that the provisions for the children (whether it is an agreement between
the parties or not) is in the best interests of the children. The Court has discretion to order an
investigation.

Section 9 of the Children’s Act echoes the words of section 28(2) of the Constitution of the
Republic of South Africa, 1996 where it is stated that “in all matters concerning the care,
protection and well-being of a child the standard that a child’s bests interests is of paramount
importance, must be applied.”

The Court has held that, in determining what custody arrangement would best serve the
children’s interests, a Court was not looking for the “perfect parent”, as there was no such
being. The Court’s quest was to find what has been called “the least detrimental available
alternative for safeguarding a child’s growth and development”. The Court further
commented on the “maternal preference principle” in terms of which the care of children of
tender years is normally awarded to the mother, saying that in more recent cases the Courts
have emphasised that parenting was a gender-neutral function and that the assumption that
the mother was necessarily in a better position to care for a child than the father was a thing
of the past.

The Court has stated that siblings should not be unnecessarily separated from each other.
The reason being that siblings experiencing the trauma of a divorce tend to form a bond with
each other.

In section 7(1) of the Children’s Act, it is stated that when applying “the best interests of the
child standard” the following factors must be taken into consideration where relevant,
namely:

(a) the nature of the personal relationship between –

(i) the child and the parents, or any specific parent, and
(ii) the child and any other caregiver or person relevant in those circumstances;
 (b) the attitude of the parents, or any specific parent, towards –
(i) the child; and
(ii) the exercise or parental responsibilities and rights in respect of the child;
(c) the capacity of the parents, or any specific parent, or of any other caregiver or
person, to provide for the needs of the child, including emotional and intellectual
needs;
(d) the likely effect on the child of any change in the child’s circumstances, including the
likely effect on the child of any separation from:
(i) both or either of the parents; or
(ii) any brother or sister or other child, or any other caregiver or person, with whom
the child has been living;
(e) the practical difficulty and expense of a child having contact with the parents, or any
significant parent, and whether that difficulty or expense will substantially affect the
child’s right to maintain personal relations and direct contact with the parents, or any
specific parent, on a regular basis;
(f) the need for the child:
(i) to remain in the care of his or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended family, culture or
tradition;
(g) the child’s:
(i) age, maturity and stage of development;
(ii) gender;
(iii) background; and
(iv) any other relevant characteristics of the child;
(h) the child’s physical and emotional security and his or her intellectual, emotional,
social and cultural development;
(i) any disability that child may have;
(j) any chronic illness from which a child may suffer;
(k) the need for a child to be brought up within a stable family environment and, where
this is not possible, in an environment resembling as closely as possible a caring
family environment;
(l) the need to protect the child from any physical or psychological harm that may be
caused by:
(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation
or exposing the child to violence or exploitation or other harmful behaviour; or
(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or
harmful behaviour towards another person;
(m) any family violence involving the child or a family member of the child; and
(n) which action or decision would avoid or minimise further legal or administrative
proceedings in relation to the child.

The traditional terms of “custody” and “access” have now been replaced by “the
responsibility and the right to care for the child” and “the responsibility and the right to
maintain contact with the child” respectively.

As far as guardianship is concerned, section 18(3) provides that a parent or other person
who acts as a guardian of a child must –

(a) administer and safeguard the child’s property and property interests;
(b) assist or represent the child in administrative, contractual and other legal matters; or
(c) give or refuse any consent required by law in respect of the child, including consent
to the child’s –
(i) marriage;
(ii) adoption;
(iii) departure or removal from the Republic;
 (iv) application for a passport and
(v) alienation or encumbrance of any immovable property of the child.

Whenever more than one person has guardianship of a child, each one of them is
competent, in terms of section 18(4) but subject to subsection (5), any other law or any order
of a competent Court to the contrary, to exercise independently and without the consent of
the other any right or responsibility arising from such guardianship.

When dealing with the matters set out above in (i)-(v), section 18(5) provides that the
consent of all the persons that have guardianship of a child is necessary.

It is important to note that in accordance with section 31(1)(a) of the Children’s Act, it is now
obligatory for a person holding parental responsibilities and rights in respect of a child to give
due consideration to any views and wishes expressed by the child, bearing in mind the
child’s age, maturity, and stage of development before taking any decision regarding:

1. the matters referred to in (i)-(v) above;

2. affecting contact between the child and a co-holder of parental responsibilities and
rights;
3. the assignment of sole guardianship or sole care of a child to another person in terms
of section 27; or
4. which is likely to significantly change, or to have an adverse effect on, the child’s
living conditions, education, health, personal relations with a parent or family member
or, generally, the child’s well-being.

Also keep in mind the provisions of section 6(5) which states that:

A child, having regard to his or her age, maturity and stage of development, and a person
who has parental responsibilities and rights in respect of that child, where appropriate, must
be informed of any action or decision taken in a matter concerning the child which
significantly affects the child.

Section 10 states that:

Every child that is of such an age, maturity and stage of development as to be able to
participate in any matter concerning that child, has the right to participate in an appropriate
way and views expressed by the child must be given due consideration.

Care

“Care” is defined in section 1(1) as follows:

(a) within available means, providing the child with –

(i) a suitable place to live; living conditions that are conducive to the child’s health,
well-being and development; and
(ii) the necessary financial support;
(b) safeguarding and promoting the well-being of the child;
(c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination,
exploitation and any other physical, emotional or moral harm or hazards;
(d) respecting, protecting, promoting and securing the fulfilment of, and guarding against
any infringement of, the child’s rights set out in the Bill of Rights and the principles
set out in Chapter 2 of the Act;
(e) guiding, directing and securing the child’s education and upbringing, including
religious and cultural education and upbringing, in a manner appropriate to the child’s
age, maturity and stage of development;
 (f) guiding, advising and assisting the child in decisions to be taken by the child in a
manner appropriate to the child’s age, maturity and stage of development;
(g) guiding the behaviour of the child in a humane manner;
(h) maintaining a sound relationship with the child;
(i) accommodating any special needs that the child may have; and
(j) generally, ensuring that the best interests of the child is the paramount concern in all
matters affecting the child.

Caregiver

Section 156(1) of the Children’s Act provides, among others, that if a child has no parent or
caregiver or has a parent or caregiver but that person is unable or unsuitable to care for the
child, such a child may be placed in foster care with a suitable foster parent.

Joint custody

Nowhere in the new Children’s Act is there a reference to the term “joint custody”. Sections
33 and 34 deals with the contents and formalities of parenting plans. In the parenting plan
the co-holders of parental responsibilities and rights must deal with the “best interests of the
child” standard as set out in section 7 of the Act.

A properly drafted settlement agreement and parenting plan, having regard to section 30
(co-holders of parental responsibilities and rights) and section 31 (major decisions involving
a child) will have the same effect as “joint custody”.

It must be remembered that although two people divorce as spouses, they need not also
divorce as parents of their children. Co-parenting is an alternative to the traditional model of
“sole custody”. It provides a structure in which both parents share the responsibilities and
everyday tasks of raising a child. This is in contrast with the system where the mother has
custody, takes primary responsibility and the father becomes a weekend visitor who often
has no role in decision-making. Co-parenting is a commitment to maintaining a co-operative
parenting relationship that places the welfare of the children as its highest priority.

Parenting plan

In terms of section 33(1) of the Children’s Act, the co-holders of parental responsibilities and
rights in respect of a child may agree on a parenting plan determining the exercise of their
respective responsibilities and rights in respect of the child. The Act therefore does not
preclude the parents from entering into a “traditional” deed of settlement in terms of which
primary residence of the child/children is awarded to the one parent and the other parent’s
contact rights are specified.

If, however, the co-holders of parental responsibilities and rights in respect of a child are
experiencing difficulties in exercising their responsibilities and rights, those persons, before
seeking the intervention of a Court, must first seek to agree on a parenting plan determining
the exercise of their respective responsibilities and rights in respect of the child as required
by section 33(2). In accordance with section 33(5), the parties must seek the assistance of a
family advocate, social worker or psychologist, or mediation through a social worker or other
suitably qualified person.

The Court held that section 34(5) allowed a party to unilaterally approach the Court, provided
that section 33(2) has been complied with, that is, that there had been a reasonable effort to
reach agreement before the Court was approached.
A parenting plan is a unique document which must satisfy the needs of a specific family, and
which represents the best possible arrangements to avoid future litigation. It also aims to
ensure the optimal participation of both parents and their minor child/children.

Parental co-ordination

Parenting co-ordination is a form of alternative dispute resolution processes in which a

mental health professional or family law professional assists in ongoing high-conflict co-
parenting matters. These professionals try to resolve pre- and post-divorce disputes,
including parenting plan or child-related disputes.

In South Africa there is currently no statute nor Court Rules governing the appointment or
authority of parenting co-ordinators. The basis of a parenting co-ordinator’s appointment is
either by:

 a Court order;
 a parenting plan; or
 a settlement agreement between the parties, which has been made an order of
Court.

Th Court order or relevant clause of the agreement or plan stipulates the scope of the co-
ordinator’s authority.

“Shared parenting”

A clause dealing with “shared parenting” (formerly “joint custody”) in a Deed of Settlement
may read as follows:

(a) Both parents retain full parental responsibilities and rights with regard to the care and
contact of the minor child/children as contemplated in section 18(2)(a) and (b) of the
Children’s Act.
(b) Primary residence of the minor child/children is awarded to the Plaintiff/Defendant.
(c) The full parental responsibilities and rights regarding contact with the minor
child/children are awarded to both parties, which responsibilities, rights and contact
will be exercised by the parties in terms of a parenting plan annexed hereto and
marked “X”, and which plan is incorporated wholly in this Deed of Settlement.
(d) The parental responsibilities and rights with regard to the guardianship of the minor
child/children as contemplated in section 18(2)(c) and 18(3) of the Children’s Act is
awarded to the parties jointly.
(e) The parties record their intention to act in the said child’s/children’s best interest (as
defined in section 7(1) of the Children’s Act) at all times and to encourage a strong
and health relationship with both of them.
(f) The parties record that the provisions of section 6(5), 10 and 31(1)(a) of the
Children’s Act have been complied with.

Contact

From a psychological viewpoint, “custody” or “care” is a foreign concept to a child. The term
“custody” implies “ownership”, namely who “owns” the child. When the family is still intact,
both parents create a stable environment within which the child can develop. The child then
grows up and enjoys the fruits of a loving relationship with both parents. He/she is able to
consult with both parents and benefit form the inputs of both parents in his/her life. The
disintegration of the family home is an abnormal and extremely stressful experience for all
children. Children need to be protected from the destructive conduct of their parents. When
marriages break up, spouses often have many reasons for wanting to perpetuate and
increase the levels of conflict between themselves. Children are used as part of the power
play. Favouring one parent over the other by the legal system is often used as a part of the
process of gaining advantage over the other by restricting contact (access).

Contact enables a person to see, spend time with and enjoy the company of a child of whom
he/she does not have the care of the child. It promotes a continuing parental relationship
between the non-custodian parent and his/her child.

An important part of the child’s education and its acquisition of the cultural values developed
by the community to which he or she belongs arises from what is called parental mediation.
Very important aspects of life, human conduct and values are ideally emphasised by both
father and mother. Love and affection from both also enhance the security and stability of a
child.

Instead of the old term “access”, legal practitioners must now use the term “contact with the
child” in accordance with section 18(2)(b) of the Act. It means, in terms of section 1(1):

i. maintaining a personal relationship with the child; and

ii. if the child lives with someone else –
(i) communication on a regular basis with the child in person including
(aa) visiting the child; or
(bb) being visited by the child; or
(ii) communicating on a regular basis with the child in any other manner,
including –
(aa) through the post; or
(bb) by telephone or any other form of electronic communication.

Grandparents, same-sex partners etc.

Section 23 of the Children’s Act provides that:

any person having an interest in the care, well-being or development of a child may apply to
the High Court, a Regional Court or a Children’s Court, for an order granting to the Applicant,
on such conditions as the Court may deem necessary:

(a) contact with the child;

(b) care of the child; or
(c) guardianship of the child.

When considering such an application, the Court must take into account:

(a) the best interests of the child;

(b) the relationship between the Applicant and the child and any other relevant person
and the child;
(c) the degree of commitment that the Applicant has shown towards the child;
(d) the extent to which the Applicant has contributed towards the expenses in connection
with the birth and maintenance of the child; and
(e) any other factor that should, in the opinion of the Court, be taken into account.

Religion

The Court held that a parent of a minor child to whom custody has been awarded is entitled
and required to direct the daily life of the child. Educational, religious and secular activities
fall within that duty. In terms of section 28(1)(b) of the Constitution, the non-custodian parent
has a duty to provide parental care to the children and the children have the right to receive
such care.

Neither parent may dictate what religion, if any, their children eventually adopt, but each
parent is entitled to provide religious instruction. To restrict the non-custodian parent’s rights
and duties in the field of education to secular activities only would significantly erode the
parent’s right of access.

Unmarried fathers

In terms of section 21 of the Children’s Act an unmarried father has full parental
responsibilities and rights in respect of a child born out of wedlock, if:

(a) at the time of the child’s birth he or she is living with the mother in a permanent life-
partnership; or
(b) he, regardless of whether he has lived or is living with the mother:
(i) consents to be identified or successfully applies in terms of section 26 (which
is not yet in operation) to be identified as the child’s father or pays damages
in terms of customary law;
(ii) contributes or has attempted in good faith to contribute to the child’s
upbringing for a reasonable period; and
(iii) contributes or has attempted in good faith to contribute towards expenses in
connection with the maintenance of the child for a reasonable period.

If there is a dispute between the unmarried father and the mother of the child with regard to
the fulfilment by the father of the conditions as set out above, the matter must be referred for
mediation to a Family Advocate, social worker, social service professional or other suitably
qualified person.

Any party to the mediation may have the outcome of the mediation reviewed by a Court.

Family Advocate

The Office of the Family Advocate was established by the Mediation in Certain Divorce
Matters Act. Accordingly, the Family Advocate was appointed who can or must investigate on
request of the parties or mero motu on request of the Court, the best interests of children. A
Deed of Settlement where children are involved must first be endorsed by the Family
Advocate before a final order can be made. In terms of Regulation 2(1) a Plaintiff or
Applicant must deliver to a Defendant or Respondent an affidavit, corresponding
substantially to Annexure “A”, and file with the Registrar two copies thereof.

In the event of a dispute between the parties regarding parental responsibilities, rights and
contact, the Family Advocate is requested to investigate by means of an Annexure “B”, a
copy of which must be served on the other party.

In almost all litigated matter involving children, the Court will require a report from the Family
Advocate in order to rule finally in the matter.

Emigration/relocation

It often happens that after divorce the “custodian” parent of a child wishes to emigrate.
Should the other parent withhold consent for emigration, which is required by section 18(3)
(c)(iii) of the Children’s Act, the custodian parent may apply to the Court for an order which
dispenses with that parent’s consent and authorises the removal of the child from the
Republic.
In some instances the Courts held that the child’s best interests must be weighed against the
custodian’s right to carry on with their life, and the impact which emigration would have on
the non-custodian’s right of contact.

In Jackson v Jackson the Supreme Court of Appeal rejected this view and emphasised that
the child’s best interests must always be the determining factor. It further stated that as a
rule, a Court would not lightly refuse the custodian permission to emigrate with their child if
the decision to emigrate was bona fide and reasonable. The Court explained that it is so, not
because of the rights of the custodian, but because, in most cases, even if the access by the
non-custodian parent would be materially affected, it would not be in the best interests of the
children that the custodian parent be thwarted in their endeavour to emigrate in pursuance of
a decision reasonably and genuinely taken.

Children’s Courts

Chapters 4 and 9 of the Children’s Act replaces the Child Care Act regarding Children‘s
Courts. These Courts play an important role in protecting the rights of children and
promoting their general well-being.

The most important features of the Children’s Courts are as follows:

1. The presiding officer is no longer a “Commissioner”, but a Magistrate which may be

specifically dedicated to the Children’s Court (section 42).
2. The Children’s Court has jurisdiction:
a. Where the child is ordinarily resident;
b. If more than one child is involved, the area in which any of the children is
ordinarily resident;
c. If the jurisdiction is unclear, the Court before which the child is brought has
jurisdiction in the matter (section 44).
3. The Children’s Court may adjudicate, inter alia, any matter involving –
a. The protection and well-being of a child;
b. The care of or contact with a child;
c. Paternity of a child;
d. Support of a child;
e. The adoption of a child.
4. Pending the establishment of Family Courts by an Act of Parliament, the High Courts
and Regional Courts (and not a Children’s Court) have jurisdiction over the following
matters:
a. Guardianship of a child (High Court only);
b. Artificial fertilisation;
c. The departure, removal or abduction of a child from the Republic;
d. Applications requiring the return of a child to the Republic from abroad;
e. Safeguarding a child’s interest in property;
f. Surrogate motherhood (section 45(3)).
5. Persons who may approach a Children’s Court are inter alia:
a. A child who is affected by or involved in a matter to be adjudicated;
b. Anyone acting in the interest of the child (section 53(2)).
6. Where a child is not represented by a legal representative and the Court is of the
opinion that it would be in the best interest of the child to have legal representation,
the Court must refer the matter to the Legal Aid Board (section 55(1)).
7. The presiding officer must allow a child involved in the matter to express a view and
preference if the Court finds that the child, given the child’s age, maturity and stage
of development is able to participate in the proceedings and the child chooses to do
so (section 61(1)(a)).
 8. If a matter is contested, the Court may order that a pre-hearing conference be held
with the parties involved in the matter in order to mediate between the parties, settle
disputes between the parties and define the issues to be heard by the Court. Such a
pre-hearing conference may not be held in the event of a matter involving the alleged
abuse or sexual abuse of a child (section 69(1) and (2)).
9. A designated social worker or a police official may remove a child with a so-called
Form 36 and place the child in temporary safe care without a Court order if there are
reasonable grounds for believing that the child is in need of immediate care and
protection (section 152(1)). The removal of a child without obtaining a proper Court
Order should only be done in extreme circumstances under strict conditions.
10. An order made by a Children’s Court lapses on expiry of two years from the date the
order was made or such a shorter period for which the order was made. The order
may be extended for a period of not more than two years at a time (section 159(1)).

3.6 Legal costs

o The content of a fee agreement, including the structure, the tariffs, an

explanation of the various fee scales as well as when and how
applicable;

Legal costs are fees an attorney or an advocate charge for legal work done on behalf of a
client.

Generally, legal costs are understood to be costs for legal work done by a legal practitioner
in the execution of the mandate, payable in terms of a Court order or an agreement.

Civil litigious work and non-litigious work are treated separately because of different rules
and principles applying to each.

Costs in civil litigious work generally refer to the costs and expenses for defending or
initiating litigation.

On the other hand, non-litigious work, although difficult to define due to the variety of work
covered, usually mean the remuneration that a legal practitioner is entitled to for work done
that is classified as commercial work.

Early advice to client and estimate of costs

It is important that the Attorney advises the client of the financial implications and risks of
costs. The only time that this may not be considered necessary is when the client is
experienced and sufficiently sophisticated to know these matters themselves.

Usually, little more than a general estimate of costs can be given in advance. Even where a
more accurate assessment can be given, unexpected or unforeseen vents may increase
these costs, especially in litigious matters and this should be explained to the Attorney’s
client.

A client must always be kept up to date of anything unforeseen. An attorney should not incur
substantial or abnormal expenses without the prior approval of the client. It is also the
attorney’s duty to warn their client that the debtor or defendant may not be able to comply
with a costs order, in which event the client will be liable for costs.

Mandate
The defined mandate, the extent thereof, as well as its termination must be clearly
demarcated. Since the implementation of sections 35(7) and (8) it is not only advantageous
to obtain a written mandate, but mandatory to enter into a written mandate with your client.

Particulars relating to fees and disbursements to be levied, payments for interim and final
accounts, as well as the client’s liability (especially attorney and own client costs) should be
as clearly stipulated as possible.

Take note that the costs of a legal suit belong to the client, and the attorney has, to a limited
extent, a lien on their client’s claim for the costs in obtaining it.

The most important requirements of a written agreement are set out in case law.
 The fee agreement needs to be certain and not vague.
 The fee agreement and fee structure still need to use as its basis the principles of the
tariffs as set out in the Rules (Rule 70 – High Court).
 The client must confirm that the difference between party and party costs and
attorney and own client costs had been explained to him.
 The Taxing Master can never be deprived of their powers and duties to determine
whether fees charged in terms of the written agreement are reasonable and
specifically authorised.

The well-drafted fee agreement will also ensure that your client will be able to recover their
costs and receive a full indemnity, should an attorney and own client cost order be obtained
against an opponent.

Taking a deposit

The purpose of obtaining a deposit from a client is not only to indemnify the attorney against
loss occasioned by the costs of an action to the extent of the advance, but also to pay any
interim disbursements, as well as setting off against the deposit any sum due by the client in
respect of interim accounts, whether in respect of the specific matter or for other professional
work done on their behalf.

The attorney is entitled to retain this amount until such time as their account is determined in
a proper manner. The deposit may not exceed a reasonable estimate of the attorney’s
charges.

Estimate of fees and disbursements

Although it is often impossible to give a correct estimate of the costs in litigious matters, legal
practitioners ought to give an estimate to the client.

Contingency fees

Attorneys were historically not allowed to enter into a contract with a client on the basis that
their remuneration will be a percentage of the amount recovered on behalf of the client. This
is known as a pactum de quota litis or champerty.

In terms of the Contingency Fees Act 66 of 1997, a legal practitioner and their client may
now agree:
 That the legal practitioner is not entitled to any fees unless the client is successful.
 That, in the case of success, the legal practitioner is entitled to their normal fee or up
to 100% of their normal fees.
 The uplift fee or fee higher than the normal fee will not be allowed to exceed 25% of
the total amount awarded.
Retainers

An attorney may accept a retainer. This ensures that they will not act against the client, or
that they are available to act on behalf of the client, or that they are available for advice. A
retainer may not be asked for after the inception of the attorney and client relationship. In
some provinces a retainer may not be accepted if it related to possible criminal prosecution
in the future.

Agreed fees

Even if a fee has been agreed in advance, a correction of excessive fees is possible.

Interim and final accounting

The attorney can account to the client on an interim basis by prior agreement. In collection
matters interim accounting may be done without prior agreement. On request of a client, the
attorney must account to a client within a reasonable time.

Cost recovery on behalf of the client

There seems to be a common misconception amongst attorneys and students that a taxed
Bill of Costs is always paid to the attorney and that is their fee. This is incorrect in most
instances.

An attorney bills their client for work done and the client pays them. Such a bill can be
rendered as agreed in the written mandate. At conclusion of the matter and if the client is
successful in their claim for legal costs against their opponent, a Bill of Costs is drawn by the
attorney and taxed by the Taxing Master (in litigious matters). These taxed costs will be paid
over to the client as a reimbursement for the legal fees they have already paid to their own
attorney.

Different costs orders

Party and party costs

These are usually costs which have been incurred by a party to legal proceedings, and
which the other party is ordered to pay. They do not include all costs, but only costs that
have been necessarily and properly incurred, for the attainment of justice, or for defending of
that party’s rights.

Attorney and client costs

These are the fees an attorney is entitled to recover from the client for professional services
rendered, and for disbursements made on behalf of the client.

In a broader sense these include all costs the attorney is entitled to recover from the client.

Attorney and own client costs

These are defined as the remuneration that an attorney is entitled to, in terms of an
agreement or mandate with the client. The attorney is remunerated according to a
predetermined fee, e.g., an hourly rate to which the client has given their informed consent.

Costs de bonis propriis

The Court will in appropriate circumstances award costs de bonis propriis against a person
acting in a representative capacity, e.g., an attorney, counsel, trustee or liquidator. This is a
penalty for improper conduct, and the representing person must pay such costs out of their
own pocket. Such an order can be made as between party and party, attorney and client or
attorney and own client depending on the Court and the circumstances.

Wasted costs

Costs are “wasted” when the services that occasioned them are of no more use to the
parties in the action.

Reserved costs/costs to stand over

The Court usually reserves costs for argument and determination by a trial Court when the
liability for costs of an interim application can be more effectively determined by the trial
Court. This allows the trial Court a grater degree of discretion when dealing with costs. Costs
may also be reserved under circumstances where it would be uneconomical or impractical at
a given time to waste Court time with an argument regarding costs if this argument can be
held over to be argued at a later stage.

Costs in the cause

This is an order usually granted in interim proceedings.

The party liable for costs in the main action will then also be liable for costs of an interim
application.

Costs of the day

These are additional costs cause by a postponement of proceedings, and consequent waste
of the day. The costs are limited to the costs of the day only.

All costs/costs/taxed costs

“Costs” means party and party costs, unless otherwise specified.

No order made/no order as to costs

Where the Court specifically says “no order as to costs”, each party will bear its own costs.
Where the High Court fails to deal with the costs issue at all, it is not finalised, and any one
of the parties can approach the Court for an order as to costs. Otherwise, each party will pay
its own costs.

Where the Magistrates’ Courts, however, fail to deal with the cost issue at all, costs of any
application, order, or issue raised by the pleadings will be costs in the action.

o Different types of fee agreements (including contingency fee

agreements and litigation funding agreements);

See above.

o Costs in the normal course of litigation

o non-litigious matters
Non-litigious work is best described at the hand of the definition of civil litigious work
hereunder. Every legal work that is not civil litigious, is regarded as non-litigious work
hereunder.

However, there is a grey area of work which also involves appearing in a Court, but which
work is not necessarily regarded as civil litigious.
 Criminal work, maintenance and Children’s Court matters are regarded as non-
litigious work.
 Work done in terms of section 43 (for reinstatement) and section 46(9) (for
determination of dispute) of the old Labour Relations Act is regarded as civil litigious
and costs are subject to taxation. An application in terms of section 35 of the afore
mentioned Act (establishment of a conciliation board) is non-litigious and costs are
therefore subject to assessment.
 Costs for work done in arbitration proceedings are subject to assessment, provided
that no settlement agreement has been reached, which has been made an order of
Court, and that the arbitrator has not made an order for costs int terms of section
35(1) of the Arbitration Act 42 of 1965.
 Charges for the interrogations with prior permission of the Master in terms of section
73 of the Insolvency Act 24 of 1936 are taxable by the Master of the High Court in
accordance with section 73(1) of the Insolvency Amendment Act 78 of1980, if the
work was done after 24 June 1980.
 Enquiries in terms of section 417 and 418 of the Companies Act 61 of 1973 are of a
non-litigious nature and costs thereof are subject to assessment.

o civil litigious matters;

Civil litigious matters

Concept of civil litigious matters

Work is generally considered to be of a civil litigious nature where a Summons or application

is issued, and pleadings and notices are exchanged between parties.

However, a Summons or application need not be issued. A dispute that will eventually
require a Summons or application to be issued, if not resolved, is also civil litigious, and
costs are subject to taxation by the Taxing Master.

The attorney and costs

The client is always liable to pay their attorney for costs incurred for work done on their
behalf by the attorney. These costs are known as attorney and client costs. To indemnify a
party for expenses incurred from having been compelled to initiate or defend litigation, costs
are usually awarded to the successful litigant. These costs are usually party and party costs.
This is seldom a complete indemnity. The successful party will be out of pocket for the
difference in the amount payable to their attorney (attorney and client costs), and the amount
recovered from the unsuccessful party (party and party costs), if any, and the client should
be advised of this.

A proper knowledge of the Rules and tariffs applicable to costs and taxation is essential in
order to:
 properly protect a client’s rights;
 prepare them for the risks in litigating;
 assist them effectively to obtain beneficial costs orders or settlements;
 recover costs from an unsuccessful litigant; and
  draw proper Bills of Costs.

Rules relating to cost orders in civil litigious matters

The basic rule, which overrides all other relevant rules, is that the Court has a discretion in
awarding costs. It must be exercised judicially and not arbitrarily, after considering the facts
of each case. This is a wide discretion, but not an unfettered discretion.

The general rules, which must guide the Court when considering cost orders, are:
 The successful party is entitled to their costs. This rule is not to be departed from,
except with good reasons.
 Where a successful application is made for the grant of an indulgence, costs do not
follow the event. This will, for example, be applicable to applications for
postponement, condonation, and amendment.
 In determining who the successful party is, the Court should not only look at the form,
but also the substance of the judgment.

The Court must attempt to establish which of the parties had been substantially successful.
This is necessary in the instances of:
 inflated claims;
 slight or partial success;
 severability of issues;
 main and alternative claims or defences;
 counterclaims;
 undecided issues; and
 where costs have not been argued.

The Court can, for good reason, deprive a party of their costs, in whole or in part.

This rule can be applied in the instance of:

 unconscionable/excessive demands;
 taking unnecessary steps or following the wrong procedure;
 misconduct by a party or legal practitioner;
 vexatious proceedings;
 negligence by a successful party;
 moral considerations;
 technical success only; or
 specific types of proceedings.

The Court can, for good reason, order the successful party to pay all or part of the costs of
the other party. This will apply where:
 misleading conduct or statements cause the costs of the proceedings; or
 the Court disapproves of the conduct of the successful party.

The Court can, in special circumstances, order the one party to pay the costs of the
opponent on an attorney and client basis.

These circumstances include:

 dishonesty;
 fraud;
 reckless, malicious, frivolous or vexatious motives; and
 grave misconduct in the case or the transaction under inquiry.

o The different types of fees that can be charged and not charged and the
factors to consider when establishing the cost structure
Section 35 of the Legal Practice Bill Act 28 of 2014 provides as follows:

(1) Until the investigation contemplated in subsection (4) has been completed and the
recommendations contained therein have been implemented by the Minister, fees in
respect of litigious and non-litigious legal services rendered by legal practitioners,
juristic entities, law clinics or Legal Aid South Africa referred to in section 34 must be
in accordance with the tariffs made by the Rules Board for Courts of Law established
by section 2 of the Rules Board for Courts of Law Act 107 of 1985.
(2) The Rules Board for Courts of Law must, when determining the tariffs as
contemplated in subsection (1), take into account –
(a) the importance, significance, complexity, and expertise of the legal service
required;
(b) the seniority and experience of the legal practitioner concerned, as determined in
this Act;
(c) the volume of work required and time spent in respect of the legal services
rendered; and
(d) the financial implications of the matter at hand.
(3) Despite any other law to the contrary, nothing in this section precludes any user of
litigious or non-litigious legal services, on his or her own initiative, from agreeing with
a legal practitioner in writing, to pay fees for the services in question in excess of or
below any tariffs determined as contemplated in this section.
(4) The South African Law Reform Commission must, within two years after the
commencement of Chapter 2 of this Act, investigate and report back to the Minister
with recommendations on the following:
(a) the manner in which to address the circumstances giving rise to legal fees that
are unattainable for most people;
(b) legislative and other interventions in order to improve access to justice by the
members of the public;
(c) the desirability of establishing a mechanism which will be responsible for
determining fees and tariffs payable to legal practitioners;
(d) the composition of the mechanism contemplated in paragraph (c) and the
processes it should follow in determining fees or tariffs;
(e) the desirability of giving users of legal services the option of voluntarily agreeing
to pay fees for legal services less or in excess of any amount that may be set by
the mechanism contemplated in paragraph (c); and
(f) the obligation by a legal practitioner to conclude a mandatory fee arrangement
with a client when that client secures that legal practitioner’s services.
(5) In conducting the investigation referred to in subsection (4), the South African Law
Reform Commission must take the following into consideration:
(a) best international practices;
(b) the public interest;
(c) the interests of the legal profession; and
(d) the use of contingency fee agreements as provided for in the Contingency Fees
Act.
(6) The Minister may by notice in the Gazette determine the maximum tariffs payable to
legal practitioners who are instructed by any state department or provincial or local
government in any matter.
(7) When any attorney or an advocate referred to in section 34(2)(b) first receives
instructions from a client for the rendering of litigious or non-litigious legal services, or
as soon as practically possible thereafter, that attorney or advocate must provide the
client with a cost estimate notice, in writing, specifying all particulars relating to the
envisaged costs of the legal services, including the following:
(a) the likely financial implications including fees, charges, disbursements and other
costs;
 (b) the attorney’s or advocate’s hourly fee rate and an explanation to the client of his
or her hourly fee rate and an explanation to the client of his or her right to
negotiate the fees payable to the attorney or advocate;
(c) an outline of the work to be done in respect of each stage of the litigation
process, where applicable;
(d) the likelihood of engaging an advocate, as well as an explanation of the different
fees that can be charged by different advocates, depending on aspects such as
seniority or expertise; and
(e) if the matter involves litigation, the legal and financial consequences of the
client’s withdrawal from the litigation as well as the costs recovery regime.
(8) An attorney or an advocate referred to in section 34(2)(b) must, in addition to
providing the client with a written cost estimate notice as contemplated in sub-section
(7), also verbally explain to the client every aspect contained in that notice, as well as
any other relevant aspect relating to the costs of the legal services to be rendered.
(9) A client must, in writing, agree to the envisaged legal services by that attorney or
advocate referred to in section 34(2)(b) and the incurring of the estimated costs as
set out in the notice contemplated in sub-section (7).
(10) Non-compliance by any attorney or an advocate referred to in section 34(2)(b) with
the provisions of this section constitutes misconduct.
(11) If any attorney or an advocate referred to in section 34(2)(b) does not comply with the
provisions of this section, the client is not required to pay any legal costs to that
attorney or advocate until the Council has reviewed the matter and made a
determination regarding amounts to be paid.
(12) The provisions of this section do not preclude the use of contingency fee agreements
as provided for in the Contingency Fees Act.

o The various principles considered when evaluating fees

Criteria to be taken into account in the determination of fees

The following criteria will be taken into account when determining reasonable and adequate
remuneration for services rendered by the attorney:
 the amount and importance of the work;
 the complexity of the matter or the difficulty or novelty of the work or questions
raised;
 the skill, labour, specialised knowledge, and responsibility involved on the part of the
member;
 the number and importance of the documents prepared or perused, without
necessarily having regard to the length;
 the place where and circumstances in which the services or any part thereof were
rendered;
 the time expended by the member;
 where money or property is involved, its amount or value;
 the importance of the matter to the client;
 the quality of the work done;
 the experience or seniority of the member;
 any tariff or fees approved by the Legal Practice Council for the sole purpose of
serving as a guide to members;
 any tariff or fees prescribed by the Legal Practice Council in accordance with the
Legal Practice Act 28 of 2014; and
 if the fees have been incurred or increased through over caution, negligence, or
mistake on the part of the member.
Where a strict adherence to the above provisions would be inequitable, the applicable
Council or Committee is entitled to deviate from any of the provisions. This is only
permissible in extraordinary or exceptional circumstances.

o The rights of members of the public and clients to dispute the fees and
the processes for same

Legal Practice Council and fee dispute committees

Where no tariff is prescribed by law, the Provincial offices of the Legal Practice Council must
appoint a Fee Dispute Resolution Committee in terms of the Legal Practice Act 28 of 2014
Code of Conduct Rules and Regulations.

Such a Fee Dispute Resolution Committee will have jurisdiction to assess the fees and
reasonable disbursements payable to a legal practitioner in respect of performance of work
in their capacity as legal practitioner.

Such a Fee Dispute Resolution Committee shall not assess fees and disbursements:
 In instances where a state official is employed to do so; or
 Where the work concerned is already covered by statutory tariff; or
 Unless the party requesting the assessment pays the Fee Dispute Resolution
Committee in advance, a fee of 5% on the amount which is subject to assessment.

Therefore, it is clear that the committee will only have jurisdiction in respect of non-litigious
matters or if both parties agree and a fee of 5% is paid. The Committee will not have
jurisdiction to assess any dispute/account of an attorney and client nature if the matter is
litigious.

Clause 10 of the Code of Conduct of the Legal Practice Council stipulates:

10.1 Any disputes about the quantum or rate of fees charged by a legal practitioner or
about the work done by and value received from a legal practitioner in relation to non-
litigious matters shall be subject to a fees enquiry to be conducted by and authorised
sub-structure of the Council;
10.2 An onus shall rest on the legal practitioner to justify the reasonableness on fees
charged and that the work charged for was done and reasonable necessary to be
done or was done at the request of the client or the instructing attorney, as the case
may be.

o The different types of cost orders that a Court of law can award;

See above.

o Different cost orders; party and party costs; attorney and client costs;
costs de bonis propriis; wasted costs; reserved costs / costs to stand
over; costs in the cause; costs of the day; all costs/costs/taxed costs;
no order made / no order as to costs; specific cost orders);

See above for different costs orders.

Specific cost orders

There are instances where the Court can, usually only on application by one of the parties,
allow certain costs. Unless a Court order or an agreement regarding such costs exists, the
Taxing Master may not allow such costs on taxation.
High Court

 Qualifying fees/preparation of expert witnesses; and

 Fees of more than one Counsel;
 Fees of Counsel in excess of the fees prescribed by the Magistrates’ Courts Tariffs
for Advocates, where the value of the claim falls within the jurisdiction of the
Magistrates’ Court (Rule 69(3)).

Magistrates’ Court

 Taxability of cost orders relating to interim proceedings before conclusion of the main
action (Rule 33(3));
 Costs on a higher scale than the prescribed party and party tariffs, in actions or
applications (Rule 33(8));
 Travelling time and expenses, and subsistence expenses of an attorney other than a
local attorney (Rule 33(9));
 Counsel’s fees in cases where the amount is less than R7 000.00;
 Refresher fee in postponed or part heard trials (Item 23 of Part III, Table A, Annexure
2);
 Preparation for trial in opposed applications (Item 4 of Part IV, Table A, Annexure 2);
 Preparation for trial and refresher fees in opposed applications, equal to the same
fees for defended actions (Note after Item 5 of Part IV, Table A, Annexure 2);
 Counsel’s fees on applications (Note to item 21 of Part IV, Table A, Annexure 2);
 Taking instructions to brief Counsel and drawing brief for Counsel on applications or
exceptions (Item 16 and 18 of Part IV, Table A, Annexure 2);
 Travelling allowance (travelling time and expenses) for Counsel where Trial Court is
situated more than 30km from the nearest location of a seat of a Local or Provincial
Division of the High Court (Item 23 of Part IV, Table A, Annexure 2);
 Counsel’s fees at a rate higher than the prescribed fees, for drawing of pleadings,
consultations, trial- and refresher fees (Note (b) after Item 26, Part IV, Table A,
Annexure 2);
 Travelling and time expenses, and subsistence expenses of Counsel (Rule 33(9)
read with Note (c) after Item 26, Part IV, Table A, Annexure 2);
 Qualifying fees of expert witnesses.

o Ethics in relation to costs – overreaching and undercharging;

Ethics in relation to costs

Overreaching

Overcharging, and thus overreaching your client, or the debtor of a client, or charging a fee
which in the circumstances is unreasonably high can amount to misconduct. Although the
payer is entitled to taxation or an assessment, the legal practitioner is not entitled to
deliberately charge excessive fees.

Undercharging

Undercharging, often called “undercutting”, is generally considered to be touting; clients are

unfairly attracted. A legal practitioner must charge adequately and properly, in line with the
prescribed Rules, tariffs and guidelines, unless they are acting pro doe or pro amico.

Recovery/attempted recovery of costs for work not strictly necessary

It is mostly impossible, apart from being dangerous, to limit work done for a client to the
absolutely necessary. However, fees charged for work done outside the realm of the
necessary should not be charged.

The Legal Practice Council does not condone an increase in fees because of over-caution,
negligence, or mistake on the part of the legal practitioner.

Manufacturing costs

Fee sharing

A legal practitioner may not share professional fees with any other person other than another
legal practitioner. Candidate legal practitioners and counsels are not regarded as legal
practitioners for the purpose of this rule.

The allowance to another legal practitioner may not (directly or indirectly) exceed a third of
fees charged. An unqualified person may not receive remuneration from a legal practitioner
for work done, where they are not permitted by law to carry out such work.

Keeping proper accounting records

Failure to keep proper records for moneys received, held, or paid by a legal practitioner on
behalf of any person, or funds invested on behalf of a client, is an offence.

Failure to render accounts

Failure to render accounts to a client, correspondent, or debtor, on request, may, under

certain circumstances, be considered to be unprofessional.

Failure to pay accounts

Failure by the legal practitioner to pay their accounts within a reasonable period is not
generally regarded to be unworthy or unprofessional conduct. Failure to pay correspondents
and experts, and Sheriffs’ fees will under certain circumstances be considered to be
unprofessional conduct.

o Taxation, and related aspects.

Formal requirements for taxation

Notice of taxation

High Court Rule 70(4) determines:

“The Taxing Master shall not proceed to the taxation of any Bill of Costs unless they
are satisfied that the party liable to pay same has received due notice as to the time
and place of such taxation and notice that they are entitled to be present thereat:
Provided that such notice shall not be necessary if the party against whom costs have been
awarded has not appeared at the hearing either in person or through their legal
representative; if the person liable to pay costs has consented in writing to taxation in his
absence; and for the taxation of writ and post-writ bills.”

As per the Government Gazette No. 43000 published on 7 February 2020:

1. Once the bill is drafted it must be served on the Respondent who will have 10 days
to inspect the file and a further 10 days to file an objection.
 2. In certain divisions the date for taxation can only be requested after the 20 days
period has lapsed. In other divisions the date can be applied for prior to notice of
taxation and indicted on the said notice.
(i) The request for date can be done personally of through email and the party
requesting the date must produce proof of service and that the 20 days has
lapsed which will then determine if the matter is opposed or unopposed. The
date allocated is a provisional date.
(ii) In the case of an opposed matter, the party setting the matter down must
serve a Notice of Set Down on the Respondent and provide proof of set down
to the Taxing Master at taxation.
(iii) If the matter is settled before the date is allocated the party who requested
the date bears the responsibility of informing the office of the Registrar about
the settlement for the matter to be removed. Should the matter be postponed
during taxation because either of the parties are not prepared or does not
have source documents, such matter should not get a preferential date.
3. If the matter is removed from the Roll due to non-appearance of the parties, the
matter should not get a preferential date and such matter must be set down before
the same Taxing Master unless the latter is unavailable on the day in question.
4. The parties allowed to appear before Taxing Master are the litigants themselves or
practising Attorney admitted practising in the Gauteng Division of the High Courts.

Magistrates’ Courts Rule 33(15) determines:

“Where costs or expenses are awarded to any party by the Court, otherwise than by a
judgment in default of the Defendant’s entry of appearance to defend or on the Defendant’s
consent to judgment before the time for such appearance has expired, the party to whom
such costs or expenses have been awarded shall…
(b) prior to enrolling the matter for taxation, by notice as near as may be in accordance
with Form 58 of Annexure 1 –
(i) afford the party liable to pay costs at the time therein stated, and for a period
of ten (10) days thereafter, by prior arrangement, during normal business
hours and on any one or more such days, the opportunity to inspect such
documents or notes pertaining to any item on the Bill of Costs; and
(ii) require the party to whom notice is given, to deliver the party giving the notice
within ten (10) days after the expiry of the period in subparagraph (1) written
Notice of Intention to Oppose, specifying the items on the Bill of Costs
objected to, and a brief summary of reason for such objection.

Appellate Division Rule 10 Part G (5) determines:

“Before the Taxing Master taxes the Bill of Costs, they shall be convinced that the party who
has to pay the account, or their legal representative, was properly notified of the time and
place of such taxation and of their right to be present: Provided that such notice is
unnecessary where the person liable for payment of costs has consented, in writing, to
taxation in their absence.”

Certificate

Section G Items 3(A) and (B) of Rule 70 of the High Court Rules states:

“Whenever an Attorney employs the services of another person to draft their Bill of
Costs, a certificate shall accompany that Bill of Costs in which that Attorney certifies that
– the Bill of Costs thus drafted was properly perused by them and found to be correct; and
every description in such bill with reference to work, time and numbers is consistent with
what was necessarily done by them.
The Taxing Master may –
If they are satisfied that one or more of the requirements referred to have not been complied
with, refuse to tax such bill;”

Rule 70 is repeated in the Appellate Division Rules under Note VII to Section G of Rule
10

A certificate is not required in the Magistrates’ Court

Where a Bill of Costs is drafted by a cost consultant, or an articled Clerk, the Attorney
issuing a Bill of Costs for taxation is responsible for any misstatements in such a Bill of
Costs. They cannot escape liability on the grounds of the person drawing the Bill not being
fully familiar with what may not have been done.

Consent to taxation in absence

Consent to taxation in absence is usually obtained in liquidation and sequestration matters,

from a trustee or liquidator, but is not necessarily limited to these. Presenting such consent
on taxation to the Taxing Master does not preclude the Taxing Master from exercising their
discretion, and from taxing off either fees or disbursements.

Example:
“I the undersigned, Mr X, in my capacity as liquidator of Y (Pty) Ltd (in liquidation), hereby
consent to the taxation in my absence of the Bill of Costs appended hereto marked
Annexure “A”.”

Taxation

Applicable Rules
Taxation has always been regarded as an integral part of the judicial process.

The obligations of the parties to a suit are not finally determined until the costs ordered by
the Court have been taxed or settled.

General rule governing taxation of costs in the High Court

Rule 70(3) determines:

“With a view to affording the party who has been awarded an order for costs a full indemnity
for all costs reasonably incurred by them in relation to their claim or defence and to ensure
that all such costs shall be borne by the party against whom such order has been awarded,
the Taxing Master shall, on every taxation, allow all such costs, charges and expenses
as appear to him to have been necessary or proper for the attainment of justice or for
defending the rights of any party, but save as against the party who incurred the same,
no costs shall be allowed which appear to the Taxing Master to have been incurred or
increased through over-caution, negligence or mistake, or by payment of a special fee
to an Advocate, or special charges and expenses to witnesses or to other persons or
by other unusual expenses.”

Over-caution and negligence cannot be condoned by the Taxing Master.

In terms of Section 14 to the general provisions of Part 1 of Table A of Annexure 2 to

the Magistrates’ Courts Rules:

“The Clerk of the Court shall on taxation disallow any charge unnecessarily incurred”.
Rule 33 of the Magistrates’ Courts Rules is also applicable.

Rule 9(1) of the Rules of the Appellate Division determines:

“The costs incurred in any appeal or application shall be taxed by the Registrar, who when
exercising this function is called the Taxing Master, but the taxation shall be subject to the
review of the Court.”

Taxability of costs

In terms of Magistrates’ Courts Rule 33(3)

“Unless the Court shall for good cause otherwise order, costs of interim orders shall not be
taxed until the conclusion of the action, and a party may present only one bill for taxation up
to and including the judgment or other conclusion of the action.”

On termination of an Attorney’s mandate, costs are taxable at any stage of the proceedings
as between the Attorney and his own Client. This is subject to the provisions of Section 80(4)
in respect of special agreements, which allows an Attorney to sue his client for costs in terms
of such an agreement, without first having to tax same.

The notion that Taxing Masters refuse to tax Bills of Costs if a Court order is absent or
is incorrect. A Taxing Master must tax such an account.

Interim applications

In the High Court, there is no Rule precluding a party from taxing a Bill of Costs for interim
applications, where a costs order was granted, or an undertaking to pay costs of such
application obtained. Costs will therefore be taxable immediately. This will also apply to an
order for wasted costs occasioned by a postponement.

The Taxing Master has the authority to tax costs incurred before and after the conclusion of
the action (Rule 70(1) and (3), and Section H of Rule 70).

In the Magistrates’ Court, interim applications may not be taxed without an order of Court.

Discretion and functions of Taxing Master

The Taxing Master has the discretion to allow, disallow or reduce various items of a
Bill of Costs. This discretion must be judicially exercised . His/her decision must be
reasonable and just, based on sound principles and with due regard to all the circumstances
of a case. It is his/her duty to carry out a costs order, not to vary it.

High Court Rules 70(5)(A) and (B) determine:

“The Taxing Master shall be entitled, in their discretion, at any time to depart from any of the
provisions of this tariff in extraordinary or exceptional cases, where strict adherence to such
provisions would be inequitable.

In computing the fee to be allowed in respect of items 1, 2, 3, 6, 7 and 8 of Section A; 1, 2

and 6 of Section B and 2, 3, 4 and 7 of Section C, the Taxing Master shall take into account
the time necessarily taken, the complexity of the matter, the nature of the subject matter in
dispute, the amount in dispute and any other factors which they consider relevant.”

Penalties
Rule 70, Section E item 3(b)(ii) of the High Court Rules determines:
“The Taxing Master may –
if they are satisfied that fees are being charged in a party-and-party Bill of Costs –
(aa) for work not done;
(bb) for work for which fees are to be charged in an Attorney-and-Client Bill of Costs; or
(cc) which are excessively high, deny the Attorney the remuneration referred to in items 1
and 2 of this Section, (drawing fee) if more than 20% of the number of items in the
Bill of Costs, excluding expenses, or of the total amount of the Bill of Costs, including
expenses, is taxed off.”

This Rule is repeated in the Appellate Division Rules, Note VII to Section E of Rule 10.

Magistrates’ Courts Rule 33(18) determines:

“Where more than one-fourth of the bill (excluding expenses) is taxed off, the party
presenting the bill shall not be allowed any costs for taxation.”

Section 80(4) also prescribes penalties.

Appearance on taxation

Only persons who are permitted to practice in the High Court are allowed to appear on
taxation before a Taxing Master.

Interest on a taxed allocatur

Once a Bill of Cost is taxed and signed by the Taxing Master it is immediately due and
payable if taxation takes place by virtue of a Court order.

Interest on a taxed Bill of Cost runs from the date the allocatur was signed by the
Taxing Master up to date of payment. The prescribed interest rate on taxed Bills of Cost
from date of taxation be as per Section 1(1) of the Prescribed Rate of Interest Act No. 55 of
1975.

Review of taxation

Applicable Rules
A Bill of Costs cannot be reviewed until the allocatur has been completed, and until it has
been signed by the Taxing Master or Registrar, certifying the amount for which the bill has
been taxed. Until then, review proceedings will be premature.

Items subject to review

Any item, or a part of an item, which was objected to at taxation before the Taxing Master, or
was disallowed mero motu by the Taxing Master, will be subject to review.

Although Magistrates’ Courts Rule 35 does not specifically state that items disallowed mero
motu by the Taxing Master will be subject to review, it was held in Court that an item can be
taken on review even where it was not objected to before the Taxing Master.

Principles on which the Court will interfere

The Court is reluctant to interfere with the Taxing Master’s discretion. It will do so
when the Taxing Master:
 acted upon a wrong principle;
  did not exercise their discretion properly, or not at all;
 disregarded factors or principles which were proper for them to consider, or
considered others which were improper for them to consider;
 incorrectly interpreted Rules of law;
 clearly misdirected themselves, their decision being incorrect.

3.8 Information and Communication Technology for Practice and associated aspects
of Cyber Law

o The classification and applicability of agreements under the Electronic

Communications and Transactions Act No. 25 of 2002

The expressions in formalities legislation, “contained in a deed”, “reduced to writing”,

“contained in a written document”, and the like, all envisage the same thing, namely a written
record of the contract. “Writing”, for these purposes, includes typing and printing.

The requirement of a written record consists of two basic rules:

Rule 1:

 The written instrument must, on the face of it, contain the essential terms of the type
of contract in question; and
 The wording of the document must be such that the identity of the parties, the force
and effect of the essential terms, as well as any further material terms set out in the
document, are ascertainable without evidence as to what the parties said or orally
agreed prior to signing the document.

Rule 2:

A written record of the contract/signature

The Electronic Communications and Transactions Act provides that:

 Contracts concluded online via the internet or by an exchange of emails are given the
same legal standing as written agreements. This is subject to the common law
requirements for the conclusion of agreements;
 The legal requirement that a document or information “must be in writing” is now
satisfied even if the document or information is in electronic format;
 Save for the sale of land, the conclusion of a lease for 20 years or longer, the
execution, retention and presentation of a will or codicil and the execution of a bill of
exchange, agreements that previously had to be in writing and physically signed by
the contracting parties can now be concluded electronically;
 Legal recognition is given to electronic signatures, provided that where a signature is
required in law, and an electronic signature is used, the electronic signature must be
an advanced electronic signature. An advanced electronic signature is on that is
accredited by the South African Accreditation Authority;
 An agreement which previously required the stamp of a notary can now be
concluded, signed and notarised, all electronically.

Validity and enforceability

Most contracts created by data communication are enforceable.

Offer and acceptance

Offer and acceptance can be communicated electronically by electronic mail, short message
service, social media or mobile apps or other interactions with internet websites.

Section 23 of the ECTA determines that a data message used in the conclusion of a contract
must be regarded as having been sent by the originator:
1 when it enters an information system outside the control of the originator or,
2 if the originator and addressee are in the same information system when it is capable
of being retrieved by the addressee.

It also stipulates that a data message must be regarded as having been received by the
addressee when the complete data message enters an information system designated or
used for that purpose by the addressee and is capable of being retrieved and processed by
the addressee. Such message must be regarded as having been sent form the originator’s
usual place of business and as having been received at the addressee’s usual place of
business or residence.

o Security of personal information

[?]

o Awareness and protecting against fraudulent transfers out of the trust

account, and cyber security

In the case of Jurgens and another v Volschenk, the Applicants sought an order for payment
in the amount of R967 510.53 from the Respondent (a legal practitioner and conveyancer)
after her secretary, while working on a conveyancing transaction, paid the amount into a
fraudulent banking account on the strength of emails. It later transpired that the secretary’s
email address had been hacked.

An attorney bears a legal duty to deal with the money in their trust account without
negligence. It is a term of the mandate that the attorney will exercise the skill, adequate
knowledge and diligence expected of an average practising attorney and an attorney may be
held liable for negligence even where they committed an error of judgment on matters of
discretion if they failed to exercise the required skill, knowledge and diligence.

The legal practitioner’s profession is an honourable profession which demands complete

reliability and integrity from the members thereof. It is the duty of an individual legal
practitioner to ensure, as far as they are able to do so, that they measure up to the high
standards demanded of them. A client who entrusts their affairs to legal practitioners must be
able to rest assured that the legal practitioner concerned is an honourable person that can
be trusted to manage their affairs meticulously in the interests of the client. When money
comes to a legal practitioner to be held in trust, the general public is entitled to expect that
that money will not be distributed for any other purpose than that for which it is being held
and that it will be available to be paid to the persons on whose behalf it is being held
whenever it is required.

o Electronic documents and signatures

See above.

o Business email compromise

See above.
 o Interception of payments to/from trust accounts

In Galactic Auto (Pty) Ltd v Andre Venter, the creditor sent the debtor an invoice via email
and thereafter sent the debtor its banking details. Instead of receiving the creditor’s banking
details, however, the debtor received an email containing a different set of banking details
from an email address that was similar but not identical to the one used by the creditor. The
High Court held that the creditor is obliged to prove only that it provided the debtor with the
correct bank details – that is, that the banking details which the creditor sent to the debtor
were correct. Once this onus is discharged, the onus shifts to the debtor to prove that the
money was transferred to the bank account provided by the creditor.

Payment, even when accepted by the creditor, remains unconditional and is only finalised
when the payment is honoured. The Court held that to detect interception and fraudulent
alteration, the debtor was merely required to verify the bank account details with the creditor
before making the payment. Had the debtor done this, the risk would have been mitigated.