April 2007


The price of freedom The Law April 2007

Of the three components of the French Revolutionary slogan (*) only two have survived into the 21st century: the authoritarian experiment with enforced fraternity has (the South African commitment to Ubuntu notwithstanding) come to an ignominious end. Of the remaining two, the constitutional court has generally preferred equality, but the principle of liberty has the support of the noted political philosopher, Alexis de Tocqueville, himself a product of the French Revolution, and author of the masterful work on democracy in America. (*) Liberty, equality, fraternity

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From My Window - April 2007 From My Window April 2007

For decades, the underpinning philosophy of this country's constitution was the supremacy of the state. Individual rights were effectively subordinated to the needs of the state, and the state's wishes were considered paramount. In theory, all that changed when the new democratic dispensation was introduced. The new constitution, labelled as among the most enlightened and liberal anywhere, put the individual at the centre of national life. Individual rights are set out in a Bill and are considered sacrosanct.

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Codifying directors’ duties – lively debate ahead Company Law April 2007

Director's duties as found in terms of statute and the common law are often described as complicated, inaccessible and sometimes confusing to directors. Frequently, many directors are unclear on what these duties are and what is expected of them and most need legal advice to understand what they should and should not do1.

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Swinging the corporate governance bat Company Law April 2007

The Corporate Laws Amendment Bill introduces a number of changes to the practice of corporate governance and aims to give effect to some of the principles articulated in the King II Report on Corporate Governance. The following have been identified as the most significant:

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The Pitje Chambers – flying the flag for change in legal advocacy The Law April 2007

"He served his articles," related the late Minister of Justice, Dullah Omar, "to become an attorney in the offices of [Oliver] Tambo and [Nelson] Mandela. For years [he] carried the firm on his shoulders when Tambo and Mandela were otherwise occupied and when few were prepared to do so. He was served with banning orders and defied apartheid laws. He was found guilty of contempt of court for refusing to move from a table in court reserved for whites."


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Rules of conflict The Law April 2007

A lawyer at a law firm stands for election in the local municipality – and she wins. Another draws up a will for a client, from which he stands to benefit. A third receives instructions from a new client to act against a former client.

Each of these examples presents a potential conflict of interest. Most firms, in resolving these conflicts, will turn to their own internal guidelines on these issues. However, there are some external points of reference for dealing with these ethical dilemmas.

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Not before time – improvements planned for the justice system The Law April 2007

In his State of the Nation address on February 9 this year, President Mbeki underlined government's intention to use new technology to reduce court case backlogs by improving management of the courts and the prosecution service.

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Silks working to reduce backlog of criminal appeals in Transvaal Division The Law April 2007

A number of Senior Counsel are participating pro bono in a project to reduce the backlog of criminal appeals in the Transvaal Provincial Division. It is hoped that all silks in Johannesburg and Pretoria will give at least one day per term to sit as acting judges. This will have a considerable impact on the backlog by facilitating the creation of additional criminal appeal courts.

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De la Rey, De la Rey, sal jy die boere kom lei? Constitutional Law April 2007

It's a long time since a song caused such debate in South African society. Well, at least not since Jacob Zuma popularised that other smash hit “Awulethu umshini wam" (Bring Me My Machine [Gun]).

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Asset forfeiture cases violate constitutional safeguards Constitutional Law April 2007

The Prophet series of court cases illustrate how the operation of South Africa's pernicious asset forfeiture legislation violates the most fundamental constitutional safeguards, intended to protect South Africans and their property from violent state action and seizure. Prophet had his house seized as being 'an instrumentality of an offence' but he was found not guilty of the charge that was brought against him.The state nevertheless took his house and the courts did not compel the state to return his property to him. In other countries with similar legislation, property forfeiture orders cannot be granted until after a criminal conviction. In SA, being found not guilty of criminality does not protect the individual, as it should, from asset forfeiture. An abbreviated summary of events describes how Prophet lost his house:

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Constitutional damages for sexual harassment Constitutional Law April 2007

Employers need to be aware that they can be ordered to pay constitutional damages if an employee is sexually harassed at work even if neither the employer nor the complainant know the identity of the perpetrator. The recent case of Piliso v Old Mutual Life Assurance SA (Pty) Ltd is the latest in a line of cases where the employer has been ordered to pay compensation to a harassed employee. This time, however, it was on a different basis.

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Notes on a scandal: Masethla vs the President Litigation April 2007

In Masethla v President of RSA & Another 1 the Court considered a number of interesting issues, from unilateral amendment of a contract of employment to the nature, authority, and exercise of executive power. The most interesting issue raised by the case, however, may be one which was not mentioned. Despite a suggestion of inappropriate spending of public funds, the Public Finance Management Act2 (PFMA) was not referred to either in the arguments presented by counsel, or in the judgement itself.

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Women and stress Medical Law April 2007

An article carried in the March 2007 issue of without prejudice, written by Mike Ewart-Smith, a practising psychiatrist, under the heading “Women (who are different) and stress," prompted a vigorous response. A senior partner of law firm Deneys Reitz e-mailed to say “..the article is incredibly offensive and bigoted.Its reasoning is unsound and deliberately insulting of women as a class without any basis for doing so."

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Deneys Reitz responds to Ewart-Smith Medical Law April 2007

The tone of Ewart-Smith's distasteful article 'Women (Who are Different) and Stress' (without prejudice March 2007) and his reliance on crude gender stereotypes is demeaning to women and offensive to readers.

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Send in the clones Medical Law April 2007

Cloning is an issue close to many peoples' hearts, not least those with degenerative cardiovascular disease.The proponents of research into therapeutic cloning maintain that it holds the hope of finding the holy grail of cures to a wide variety of life threatening conditions including Parkinsons, cystic fibrosis, organ failure and Alzheimer's, as well as spinal cord injuries. Those on the other side of what is, in essence, an ethical/medical divide, maintain that the research has not delivered on its initial promise and that the methods it uses (using aborted foetuses is one) to harvest the stem cells required for research and cloning are either unethical or opposed to those social and religious mores that form the bedrock of the Judeo-Christian way of life.

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