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Advocate has no direct access to client for fees

The applicant was a practising advocate who sought to recover fees of nearly R500 000 from the Legal Practitioner’s Fidelity Fund Board of Control where the money due to the advocate had been held in trust by the attorney and misappropriated.  The court found that the money entrusted to the attorney by the clients was held … Continue reading

The meaning of “to pay” orders and the public health defence

In April 2021, the Constitutional Court handed down a seminal judgment relating to the public health defence which will influence medical malpractice claims against the state across the country. In Member of the Executive Council for Health, Gauteng Provincial Government v PN [2021] ZACC 6, the court considered whether an order finding the MEC liable … Continue reading

More debarment guidance from the Tribunal

More debarment guidance from the Tribunal A representative’s dishonesty, negligence or incompetence must be sufficiently serious to impugn the honesty and integrity of the representative as a person before debarment is justified. The ambit of the enquiry determining fit and proper characteristics is that a representative must conduct themselves with honesty and integrity and be … Continue reading

POPIA: 100 days to go

24 March 2020 marked 100 days to the deadline to ensure compliance with the Protection of Personal Information Act, 2013 (POPIA). The Information Regulator (IR) has prioritised certain processes that may be applicable to your organisation (which can be completed before 1 July 2021): Registration of information offices – registration commences on 1 May 2021. … Continue reading

Registration of your POPIA Information Officer (1 May 2021)

On 18 March 2021, the Information Regulator announced on Twitter that: the registration of information officers will commence on 1 May 2021; the Draft Guidelines will be finalised once all public comments are taken into consideration; and registration will be an on-going process to enable new entities to register and for existing one to update … Continue reading

Pension Funds: Section 37D(1)(b)(ii) and Employer requests to withhold member benefits

In February 2021, the Financial Services Tribunal (“FST”) in L.S Ngqengelele v Afrisam South Africa (Pty) Ltd considered the question of when a fund may withhold and deduct money from a member’s benefit in accordance with section 37D(1)(b)(ii) of the Pension Funds Act (“PFA”). Section 37D(1)(b)(ii) of the PFA, allows a fund to deduct from … Continue reading

Unrepresented parties carry the costs

A full bench of the High Court in Cape Town has handed down a punitive cost order against unrepresented applicants – an unusual move considering the more lenient approach our courts usually show unrepresented litigants. The Cassiems had instituted proceedings against the Government Employees Medical Scheme (GEMS) before various forums with “ostensible impunity”. In 2018 … Continue reading

Duty to protect the public prevails over a healthcare practitioner’s need to practice

A gynaecologist and obstetrician, appeared before the Professional Conduct Committee of the Health Professions Council of South Africa (HPCSA) on charges lodged against him by his patient, Mrs M. He pleaded guilty to 2 out of 7 counts of alleged unprofessional misconduct, and was found guilty only of the 2 counts which he pleaded guilty … Continue reading

Legal professional privilege promotes the rule of law

In a matter regarding unlawful surveillance the Constitutional Court held that the proper functioning of our legal system is reliant on the confidentiality of communications between lawyer and client. That promotes the rule of law. Although originally sourced from the common law, legal professional privilege is now supported by the Constitution. The court reaffirmed a … Continue reading

Protection of journalists’ sources is supported by the Constitution

In the course of a judgment regarding unlawful surveillance, the Constitutional Court found that journalists’ sources of information require special consideration and must be protected against disclosure to the extent possible. Journalists are not expected to reveal the identity of their sources. Freedom of the media is a fundamental requirement for democracy and when journalists … Continue reading

International law does not cover expropriations of property belonging to a country’s own nationals

An interesting case involving international law was heard in the US Supreme Court and lead to the conclusion that the US Foreign Sovereign Immunities Act which reflects international law does not entitle a foreign state to interfere with what is known as a ‘domestic taking’ where the state takes the property of its own nationals. … Continue reading

Meaning of payment for electricity under lease at ‘prevailing commercial rates’ (UK)

Where a tenant was required to pay for electricity and gas ‘at no more than … the … prevailing commercial rates’ the court held that this meant the prevailing commercial rates of the private utility networks of major UK airports including airports receiving international and internal passengers rather than the rates payable to public networks … Continue reading

Merger ends due to failure to operate in the ordinary course, but COVID-19 not MAE (US)

In December 2020 the Delaware court held that the COVID-19 pandemic did not cause a Material Adverse Effect on the target of a merger because the MAE excluded ‘natural disasters and calamities’. Despite this, the buyer was not obliged to close the transaction and was entitled to terminate the sale agreement because the target made … Continue reading