PERIODS OF APPOINTMENT OF CONSTITUTIONAL COURT JUDGES TO BE LENGTHENED

Cabinet approves Superior Court Bill and 19th Constitutional Amendment Bill

Business Day reports that Cabinet recently approved the Superior Court Bill and 19th Constitutional Amendment Bill.  In terms of the aforementioned Bills, the Constitution will, amongst others, be amended to provide that fixed, non-renewable terms of office for judges of the Constitutional Court are abandoned and that the terms of office of Constitutional Court judges are aligned with those of High Court judges. 

A similar amendment proposed in 2001 was rejected by Parliament after opposition from the legal community.  Currently, Constitutional Court judges' terms are fixed at 12 years to ensure new life is continually being breathed into the Court. 

The re-introduction of the provisions is certain to once again provoke fierce opposition, particularly when Parliament holds public hearings on the bills.

Click here for the full Business Day report

NATIONAL ASSEMBLY APPROVES CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL

Bill to provide access to the fingerprint databases of other government departments 

Polity reports that legislation giving the South African Police Service (SAPS), among other things, access to the fingerprint databases of other government departments was approved in the National Assembly.

Speaking during debate on the Criminal Law (Forensic Procedures) Amendment Bill, Justice Minister Jeff Radebe said that the measure was intended to deal with fingerprint and DNA evidence shortcomings - two pivotal aspects of forensic crime fighting.

Despite the fact that a number of government departments administered fingerprint databases, SAPS currently, owing to legal and information technology reasons, only had access to the fingerprints stored on the SAPS Afis system.  As a result, the SAPS currently had no direct access to the Hanis home affairs system where the fingerprints of 41-million citizens and about 2,5-million foreigners were kept.  Nor did SAPS have access to the transport department's eNatis system, where a further 6-million thumbprints were kept.

The bill intended to address all these shortcomings by ensuring that the SAPS had access to the fingerprint databases of other government departments for criminal investigations only, and by expanding police powers to take and return fingerprints, bodyprints, and photographic images of persons charged with or convicted of offences.

Radebe said that the bill contained strict safeguards and penalties to ensure that fingerprints, bodyprints, and photographic images were collected, stored and used only for purposes related to detecting crime, investigating an offence, identifying missing persons and unidentified human remains, or conducting prosecutions.

Click here to read the full Polity report

RECOMMENDED READING

Protecting the children (an article on hazardous work by children) ML Govender, Health & Safety at work in South Africa, March 2010

RIGHT TO HAVE IDENTITY OF ABUSIVE CALLERS REVEALED

Makhanya v Vodacom Service Provider Co (Pty) Ltd 2010 (3) SA 79

In the above matter, the North Gauteng High Court confirmed the applicant's entitlement to have his privacy protected against a telephone pest by way of an interdict.

The applicant was a party to a service contract with the respondent's service provider and requested the respondent to identify the telephone number of certain unsolicited early-morning cellphone calls. The respondent refused, stating that it was prevented by law from providing the information.

The court found that the right to be left alone, to be free from unwanted and unwarranted intrusions upon one's time, peace of mind and sleep could be asserted in at least the same measure, and was as enforceable against individuals and corporate entities in the private sphere as against government.  The applicant was therefore entitled to protect his privacy against the telephone pest by way of an interdict; in the same fashion as unwarranted noise intrusion may be prohibited.

The court further found that it was not in dispute that the respondent had the information stored in its records. It was also clear that the applicant required the information to protect his right to privacy as intended in s 50(1) of the Promotion of Access to Information Act 2 of 2000.  The respondent was ordered to provide the information.

ATTORNEY LIABLE FOR FEES CHARGED BY ADVOCATE HE HAS INSTRUCTED

Serrurier and Another v Korzia and Another 2010 (3) SA 166

In the above matter two counsel instituted action against an attorney for the payment of their fees. The court noted that the decision of Bertelsman v Per 1996 (2) SA 375 (T) is misunderstood by some to mean that an attorney is not liable to pay counsel's fees.  This is however incorrect in that the decision merely determined that it could not be accepted as law that an advocate had to be paid by his attorney, but that this had to be proved by evidence. 

While regarding itself as bound by the decision in Bertelsman v Per, the court in dealing with the liability of an attorney for the fees of an advocate opined that an attorney would always be liable for counsel's fees in view of the following points, namely:

-The obligation to pay fees had to flow from an agreement between parties.

-This agreement could either be an express agreement or by necessary implication.

-Counsel was not allowed in terms of their ethical rules to receive instructions or payment from a client.

-If there was not an express agreement between counsel and attorney, the necessary implication was therefore that it could never be an implied term of the agreement that counsel looked to the client to pay his fees.

-Counsel would not be permitted to conclude an express agreement that his fees be paid by anyone else than his attorney.

-It therefore followed logically that an attorney would always in South African law be liable for counsel's fees, even in the event of the client not paying him.

CONFERENCES AND SEMINARS

LEAD: ENVIRONMENTAL LAW 3 DAY WORKSHOP 2010

Attending this workshop will enable participants to identify relevant legislation pertaining to specific environmental issues, advise clients on the criminal and civil aspects of environmental law and represent clients who face prosecution for environmental crimes.

Dates: Midrand 11 - 13 August 2010, George 25 - 27 August 2010, Cape Town 08 - 10 September 2010, Durban 29 September - 01 October 2010, Bloemfontein 27 - 29 October 2010

Cost: R2500 per person for 3-day workshop, persons from firms located further than 200km from closest venue: R1800 per person

LEAD: ADMINISTRATION OF ESTATES 3 DAY WORKSHOP 2010

This workshop will be presented by ms Ceris Field and will focus on intestate and testate succession, the administration process, minor beneficiaries and also provide practical examples.

Dates: Cape Town 05 -07 August 2010, Durban 19 -21 August 2010, George 30 September -02 October 2010, Midrand 21 -23 October 2010, East London 28 October -30 October 2010, Bloemfontein 11 November -13 November 2010

Cost: R2500 per person for 3-day workshop, persons from firms located further than 200km from closest venue: R1800 per person

LEAD: PRACTICE MANAGEMENT TRAINING (NOW COMPULSORY)

The purpose of this course is to equip attorneys for the management aspect of their legal business and to enhance sustained business access and leadership for the legal profession. The programme ensures effective and efficient management of the attorneys firm as well as influencing the students for the ideals of best practice within the profession. All attorneys who are issued with an Attorneys Fidelity Fund certificate for the first time after 14 August 2009 must complete a course to the satisfaction of the relevant statutory provincial law society. (Sections 8 to 10 of the Judicial Matters Second Amendment Act 55 of 2003).

Duration and format:  The duration of the attendance course will be six months and training will be provided for 120 hours on an after hours basis in sessions of three hours. The duration of the distance course will be 6 months too and the course will include workshops and assignments. Both forms will include the submission of a business plan and completion of a final open-book problem-based test.

Cost: Full course R2900 (25% payable upon registration), individual module R550 each (50% payable upon registration)