My Approach to Contracts

 

If there ever was evidence of the human being's inherent treachery it is a contract.

A bright eyed law student will tell you that a contract is an agreement and that same student will probably recite with enthusiasm that an agreement is the result of a meeting of minds. Life on this earth will quickly teach you, however, that signing a contract often brings about consequences to which no right-minded person would have agreed to if there ever was a meeting of minds.

You show me the contract and I will tell you what kind of person is behind the drafting thereof.

Contracts consisting of nearly microscopic fine print covering more than 1 page (that parties are expected to have noticed and remembered at the time of signing) are drafted by control freaks who seem to want the contract to enforce itself. They remind me of those hell-bent old ladies who try to rule their children's lives from the grave one day...

Contracts that say less than what is necessary are drafted by people who are ignorant of the law of contracts and who don't care to get legal assistance.

Contracts using words and terminology that are not understandable to either of the parties signing were drafted by legal practitioners who seek to justify the hefty price for the contract by demontrating how many Latin words and jargon they know.

Now- how do I approach the drafting of a contract?

Well- I want to make certain that all parties to the contract know what they are letting themselves in for. The smallest print that I have ever used in the drafting of a contract is Callibri 11. I reserve my knowledge of big words for when I have to explain somebody else's contract to a client. Lastly- I make sure that both parties know how disputes arising from the contract shall be resolved.

Now- you may ask- is a contract not supposed to be fancy with at least 5 000 words to be "iron clad"?

The law does not require that at all. What the law requires for a contract to have is:

1) A meeting of minds (also known as consensus);

2) The execution of the contract must be possible;

3) The execution of the contract must be legal.

With that last requirement one may laugh when you wonder who on earth would sign a contract to work as a drug runner on a street corner, but it gets more serious when you realise that many employers, service providers and other kinds of people who look down at you from a dizzy height often try to have you sign away your rights. In many cases certain rights can indeed be waived by agreement- or signed away if you will-, but in some cases a contracting party goes to far without the other even noticing.

Outdated provisions for notices pertaining to the agreement being sent by registered post are redundant in this day and age. I don't even bother to ask for a postal address anymore. 

I don't mind using dispute resolution clauses providing for arbitration as a dispute resolution process to follow before the Court is involved. I have to date hereof, however, not see the need to make the arbitration process more expensive than the court proceedings that are almost certain to follow by insisting that an Arbitrator be a Senior Counsel that charges R 50 000 per day. An Arbitrator from the Association of Arbitrators is adequate. 

The large print that I use deters me from sneaking in any clauses that provide for surcharges or other consequences that would deter a party from signing.

Even though a contract cannot eliminate all disputes- disputes that do arise can be managed and regulated by clauses providing for what kind of evidence shall be deemed sufficient and what presumptions shall be held until rebutted.

These days we learn more than ever how important good relations are between vendors and clients. Trust is an important part of such good relations. Unlike what many heirs of the previous generation would have you believe it is possible to create and foster a healthy and comfortable business relationship whilst both parties rights are secured and recognised. 

It is simply up to us to act in good faith.

Loadshedding: Where are the Lawyers?

 

Standing up to corruption in South Africa is bad for your health. I think we all know that.

By now I have heard of policemen that choose to rather not investigate murders for fear of retaliation from police officers who are actually involved in same. As unpopular as I have made myself in certain circles I have received my fair share of threats and verbal abuse from public servants whom I have dared to ask to just do their work. Still- I love standing up to those who abuse their power and I still do not get tired of making sure that those who want to laze about in their offices while being paid with our tax money actually get to do some work...

It goes without saying that I was going to buy André de Ruyter's book no matter what the cost.

Having read and enjoyed Jacques Pauw's the President's Keepers I knew that I was going to enjoy finding out how the actual reasons for loadshedding compares to the excuses that we were fed via the media for the last couple of years.

Mr De Ruyter did not disappoint. His accounts of struggles with law enforcement and bureacracy was not only believable, but downright relatable. According to him his term at Eskom had him face the following on a daily basis:

- Policy decisions made by Government Departments that were influenced by other considerations (mostly greed and corruption) than securing a reliable electricity supply to South Africa;

- Difficulty in recovering debts owed by Municipalities;

- Unwillingness from law enforcement to investigate and prosecute cases of criminal offenses committed within Eskom and against Eskom (it goes without saying that these offenses were actually committed against us- the people of South Africa...)

- Board Members being more concerned with keeping politicians happy than carrying out their legally imposed mandate.

My first question as I read about all this was- Where were the lawyers...? Yes- I know Eskom has in-house legal advisers and probably Attorneys on contract. Mr De Ruyter even made mention of his own lawyers when he related the events that occurred around the time of his resignation...

I asked:

Where were the lawyers to apply for a mandamus order against the SAPS and the Hawks when clear evidence could be produced of a matter having been referred to them for investigation?

Where were the Labour Law experts to make sure that people within Eskom who did not want to do their jobs would no longer be on the payroll? I especially would have loved to see those employees who had assisted in the committing of the fuel oil and coal fraud dismissed...

Where were the Administrative Law experts to challenge the Department of Mineral Resources and Energy's rejection of a plan that could have ended loadshedding in 6 years' time...?

These lawyers would have needed evidence and from what I have read Mr De Ruyter and those that stood by his side had plenty of that. It just needed to be used properly...

I have finished the book just as the Minister of Justice and Correctional Services issued a regulation that us legal practitioners had to render at least 40 hours of community service per year. It did not take me very long to decide what kind of community service I wanted to render- so I reached out on Facebook...

(Please forgive me if the link does not work. Technology and I have a toxic relationship at times...)

https://web.facebook.com/100001778128460/videos/1430136687587710/

I won't be surprised if  Mr De Ruyter is not the only one with evidence on hand with which to expose and persecute those responsible for the sorry state of our country's electricity supply. If any such person wishes to share useful information with me to use in this Community Service project they are welcome. I will understand if you would choose to remain anonymous.

This invitation is not extended to only those at management level, but also to any employee of Eskom in my area who finds him or herself victimised for just doing his or her job...

If other Attorneys want to step up and offer their services for this cause I can only imagine what change it will bring about. 

Let's start making a change...

Reconsidering Alternative Dispute Resolution

I can remember a time when the courts were much more efficient than they are right now.

Back then, defendants were very eager to opt for mediation or arbitration because they knew very well that doing so would actually prolong the inevitable and postpone the hiding that was coming their way.

Plaintiffs and applicants often avoided alternative dispute resolution measures such as mediation and arbitration because they found  litigation as the most efficient way towards getting to the judgment or the court order they were looking for.

After 2020 we saw changes in the Court Rules that required matters to be referred for mediation or that mediation at least be considered. By now each and every summons and notice of motion has to be issued along with a written notice that indicates whether the plaintiff or the applicant is in favor of having the matter referred for mediation.

One would expect that the plaintiffs would automatically opt to give written notice that they are opposed to having the matter referred for mediation. This may still be true in our District and Regional Court, but our High Courts have now become notorious for their long waiting lists for pre-trial and trial dates.

Matters may now actually be expedited with the obtaining of a settlement through mediation or an arbitration award by having the matter adjudicated by a jointly appointed arbitrator.

In this day and age we now see Defendants preferring to rather take their chances in Court rather than have their hidings brought to them sooner with an arbitration award or settlement.

Even though Arbitration and Mediation have been cited as cost-effective ways to resolve disputes they have actually become rather expensive. While you don't have to pay for a Judge to adjudicate your matter in Court a Mediator and Arbitrator do charge fees for attending to matters. In these matters parties already have their respective legal representatives to pay. The cost of a Mediator or Arbitrator is often daunting to parties. In claims for payment the Defendant is already unhappy to pay an attorney to delay the matter with a notice of intention to defend and all manners of stalling that he/she may find available. The Defendant would rather not pay the person that may speed up the arrival of a judgment against him/ her.

The above prompts parties to carefully consider that dispute resolution clause when drafting a contract or when considering the institution of legal proceedings.

In my view the agreeing to or refusal of alternative dispute resolution is also a strong indication of the homesty of a litigant's intentions.

Racial Quotas in the Workplace again- The Employment Equity Amendment Act of 2022 (that was signed in April 2023)

More than once every couple of months I would get a hysterical telephone call about a matter so urgent (that usually leaves no time to discuss the deposit needed) that I am required to immediately put all work aside and listen to this caller's problem. When the full story eventually comes out (because people who have urgent problems sometimes ironically have to take a lot of time getting to the point...) it turns out to be a debtor owing money from months ago and he has stopped answering his phone...

I tell you- people seem to want me to die from a heart attack or to just keep me in a sufficient state of fear so that inner peace be just this much out of reach...

So it is with the media as well-

Recently we had to hear that the Employment Equity Act 55 of 1998- which brought us Affirmative Action- was going to be amended to make provision for "racial quotas" at our workplaces again.

It gave talk shows something to discuss, political analysts the opportunity to make their voices heard on television and radio and- some might say- a lawyer something to type about.

I was actually very reluctant to write anything on this topic, but- when I began my research- I realised that other people than myself have been whipped into a frenzy by something that is not half as radical as it sounds...

You see this section here...?

  

Does it look like a grim preview of what is to come?

Well... it is not. That is a section from the old Employment Equity Act that is already in effect. I should know. My appointment as Candidate Attorney at Legal Aid SA in 2008 was a result of this Act...

If you understand this section (and the sections related to "Affirmative Action" and "Numerical Targets") you will realise that we already have "racial quotas" at some of our workplaces. If you have not seen any fussing over getting your area's demographics properly represented at your workplace it is likely because your employer is not a "designated employer" in terms of the old Act. That means your Employer does not employ enough people to qualify or that their turnover is simply not large enough...

So- what does the new Act change?

Well... the Minister of Labour can now intervene in certain sectors of our economy and determine numerical targets for employment. Intervention by the Minister was not necessary in the past and the "numerical targets" (exactly how many of each part of our demographics is to be employed i.e. how many from each ethnic group in our area, how many men, how many women, how many disabled individuals...) were mainly influenced by the demographics of our area.

So- what will influence these numerical targets now...? If the Legislature does not say we can fall back on already established principles on what should determine these targets...

The turnover threshold is also changed and some employers who have never been designated employers will now find themselves having to report to the Minister on employment equity plans that they have yet to learn how to put together...

Now- if you as an employer cannot come up with such a plan- will a death squad dressed in black show up at your house at night?

No-

The Minister may take into account that you have valid reasons for not having an employment equity plan or not meeting numerical targets. If you don't have any valid reasons there will still not be any death squad visiting you...

We also have to bear in mind here that existing jobs are not being threatened by this new Act. That means even less reason to be worried.

Now that you have one less thing to worry about I hope you can enjoy your week! 
 

What I have learnt about divorces over the years

 

The first case I had as a young Candidate Attorney at Legal Aid SA happened to be a divorce. It was the first of many and thereafter I had gained enough experiences in obtaining a decree of divorce with the occasional squabble over a room divider...

After my admission I found that my clients now had a longer way to court as their disputes were over far more than just a room divider.

Between 2008 and now the common law regarding divorce matters have changed a lot. Much of the advice you get from your aunt or your father's friend at the braai is likely to be outdated.

So- let me warn you about a couple of these changes in advance before you come to me:

1. Adultery no longer affects division of the joint estate:

Your parents may remember a time when it mattered a lot who had left the matrimonial home or whose eyes (or other body parts) started wandering first. Now, however, it no longer matters. Our Courts no longer deem it necessary to penalise a party to a marriage for her loss of love for her spouse.

In fact- our Courts no longer wish to blame either party for the breaking down of a marital relationship.

We already know that law in our society is viewed separate from morality and that our courts are concerned with upholding law- not morality...

2. You cannot stop your spouse's new partner from meeting your children

Seriously- you need to get over yourself if you are a man whose minor children are now living with your former spouse. The mother of your children is no longer your wife and she is most likely going to meet someone else and start living with him.

And divorved ladies- It is not the end of the world if your children get a kind stepmother instead of a wicked one...

Get over it!

If you really do not want your children to be alienated from you- there are ways to prevent that. You mainly have to be a reasonable parent...

3. The Divorce Court has no obligation to help you maintain any kind of lifestyle

Sure- The Court- and your lawyer- will try as far as possible to help you be maintained as close to the standard of living to which you have become accustomed during your years of marriage, but-

Do bear in mind that your maintenance is limited by the actual means of your soon-to-be former spouse and that your joint income shall now be split between two separate households...

4. The one with the most money does not necessarily win

Did you know that you can actually get a court order to get your spouse to contribute to your legal costs?

This mechanism was devised by our legislature to enable parties in divorce actions to litigate on equal footing...

5. A parenting plan does not give any parent the right to be disrespectful toward another

Your ex husband's lawyer may not agree with me, but if your ex is abusive toward you everytime he shows up to fetch the kids for the weekend he can be barred with a protection order from coming to your house again until he has learnt to behave properly. No child needs to spend a weekend with a toxic father anyway...

Lastly- divorces do not always have to be acrimonious or stressful. If you feel like handling your divorce is an insurmountable task you should really contact me. In fact- contact me even before you try to handle it by yourself...

Reach Out! Do Not Face Domestic Violence Alone

 

Your abuser may seem all-powerful to you. He is not...

What power he has over you is confined within the home that you share with him.

To maintain that power he shall try to isolate you by cutting you off from friends and family and by telling you that nobody cares about you. In order for you to see that this is not true you need to seek help from outside your home.

The question is just where you should look for help.

What your abuser does not want to hear is that Domestic Violence Courts are one of the most accessible institutions in our country. They are equipped to help applicants obtain an interim protection order that can be served on the abuser by the Police and when you report any contravention to that order an arrest will follow much sooner than it will in other cases. Yes- the Police take protection orders very seriously...

If you feel your matter is too complicated for the Domestic Violence Court Clerk or you experience difficulty in getting helped you can contact me. 

Yes- Attorneys other than Legal Aid South Africa cost money. I  have, however, over the last 11 years assisted clients from different income groups to obtain protection orders and to handle the hearings that follow from these orders. My clients earn salaries from R 5 000 per month, but have been assisted and have been able to pay me.

I understand all too well that being abused at home and needing help to deal with it is not something for which you have budgeted or saved up. I also understand how furious your abuser is going to be if he finds out that you have spoken to somebody...

I also understand that it is not easy to face your abuser alone- in court or otherwise. 

Let me help you put an end to emotional and physical abuse...

A Day at the Domestic Violence Court

In a Magistrates' Court you simply need to look for the benches in the passageway... The ones with rows and rows of mostly women, some with toddlers or babies, and a man here or there...

All Magistrates' Courts have them and the number of people waiting on these benches are a reflection on the health of a town's families.

These benches are situated near the door of the Family Court Clerk. The Family Court deals with two problems on a daily basis- 

Maintenance and Domestic Violence...

In our Magistrates' Court the Domestic Violence Court has a Clerk all to itself- separate from the Maintenance Court.

This Clerk listens to the complaints of abused women and men and assist them in filling out the forms and the commissioning of statements under oath.

An interim order is issued by a Magistrate while the complainant waits and, if it is deemed appropriate, an interim order is granted.

Two copies of this order are handed to a police officer to serve on the person accused of domestic violence. He shall have to explain himself before Court on the return date...

It all sounds simple and one would think that an attorney has no place in this process...

The truth, however, is:

- The ease with which these orders can be obtained makes the process easy to be abused. Innocent respondents often find themselves having a court order that was granted before their side of the story was even heard;

- Respondents often find ways to intimidate or deceive complainants into withdrawing applications for a protection order, leaving them as vulnerable as they were before they approached the Court;

- Domestic Violence Court Clerks sometimes find it easier to rather send a complainant with a difficult matter from pillar to post rather than adding her problems to their ever increasing workload.

I have assisted clients in dealing with these problems for 15 years now. Like many Attorneys I have begun handling domestic violence matters during my years of articles. By now I have the experience and insight to deal with these matters fearlessly, efficiently and in a sympathetic manner.

Whether you need a protection order or whether you had one wrongfully obtained against you- we can assist you.

Protection Orders against Harassment

Until the 5th of December 2011 protection orders (the American term for these is "restraining order") other than interdicts obtained from a civil court were available only in instances of domestic violence.

While in legal terms an interdict and a protection order may appear the same one major difference is that a protection order is issued by a Magistrate after a specialised Clerk at the Court has helped an unrepresented applicant free of charge to fill out the necessary forms. The protection order is further served by a member of the Police Service at not cost whatsoever.

Interdicts require the help of a legal practitioner to draw up court papers and it is often necessary for a legal practitioner to appear before the Court on a motion court day to have the application argued and considered.

On the 5th of December 2011, however, the Protection from Harassment Act 17 of 2011 was promulgated.

This Act provides for a protection order to be granted by a Magistrate and also a Clerk at the Court who helps applicants free of charge to fill out the prescribed forms.

Since the promulgation of this Act protection from harassment is now available to anyone in South Africa regardless of whether they have a lawyer or not.

"Against what kinds of harassment does this Act protect me?" you might ask...

The definition of harassment is wide enough to include every form of communication and interation with a person that can be abused to cause that person harm. That includes the sending of electronic messages such as Whatsapp messages and also annoying behavious like following and watching.

The court has to consider this type of behaviour if it causes you harm or if one is to reasonably know that it can cause you harm, The type of harm against which you are to be protected may be mental, psychological, physical or economic harm.

An Applicant who meets the above requirements gets issued with an interim protection order with a return date on which the Respondent (that is the person against whom the complaint is made) is to explain why it is not necessary to make the order final.

As is the case with interdicts a Respondent may after having received an interim protection order give the Applicant and the Court 24 hours notice of his/ her intention to oppose the matter and have it argued before the Court from which it was issued. 

One would expect that with harassment being defined widely enough and that even your mental wellbeing is taken into account that you will not get sent away if you approach the Harassment Court Clerk with your complaint about being pestered by that particular person who insists on sending you Whatsapps and who even phones your workplace to reach you after you have made it clear that he is to leave you alone. The truth, however, is that Harassment Court Clerks have devised a way of screening applications that are solely intended to lighten their workload. 

Applicants who approach these Courts without a legal representative are not supposed to be sent away if the conduct of which they complain fall within the definition of harassment as explained above. In many instances your Attorney can prevent you from being sent away and he can also ensure that your application is heard.

This Act was promulgated before our public had become aware of cyber-bullying on the level that it is now. The inclusion of electronic communication, however, means that social media and online chats also qualify as types of communication that the Court has to consider.

Nobody in South Africa has to endure being harassed by any person. If you find yourself being stalked, bullied, pestered with unwanted text messages- get a protection order. If the Court appears unhelpful to you- contact us!