COVID-19 Regulations: Who will make it through this?

Last week Thursday I have prepared myself for the announcement of a 3 month extension of the Lockdown that some of us have hoped to end 3 days from now. Well- I have also hoped that this coming Friday would have seen me back at court to pick up the pieces of matters that have to be enrolled anew and my friends back at their work, making the most of what is left of March 2020 to scrape together at least a semblance of an income.

Still- what I got was not what I shall call "the worst"- well- at least not yet. We got another 2 weeks- effectively erasing April as a month for many of us to earn anything.

As we will get reminded, however, there is always a bigger picture and some of us are just not important enough to feature in it. It can't be avoided. Had our Government opted to favour the economy and ended the Lockdown I am certain that the deaths of many South Africans would have been on its hands.

In the current model we see that some of our business owners are going to get left behind. So- some of us are going to end up as collateral damage in this war against what US President Donald Trump calls "The Invisible Enemy." Should it be this way? Definitely not.

In this post I am going to point out the flaws in the current financial relief structures that have been put in place. We will then identify those people who are currently not being provided for. Those people are the ones for which we still have to fight and- with our courts now having a lot more time on their hands as all of the matters that filled its rolls are put on indefinite hold (unless we do return to court as normal after the end of this month) I say we can and must fight for these people's livelihoods.

South Africa itself is a country whose racial tension gets avoided for good reason. It is counterproductive. Our Rugby World Cup Victory of last year has been used to the fullest by the media and politicians alike to create an atmosphere of unity and friendship throughout the entire country.

The current crisis, however, has now reminded many White South Africans that they have a Black government and in a time of crisis, when the government is forced to apply triage measures in distributing resources- this Government will first take care of its people, the ones that not only belong to their own ethnic group, but whose votes have been keeping them in power for the last 25 years or so. Normally we would tiptoe around this kind of issue, but as dark as the future seems for some of us now it is not going to be any use trying to shut us up.

Just a while ago we would have watched our mouths on Social Media.

The following post from Facebook, however, shows me that the desperation White South Africans feel now far outweighs any fear of being treated like Vicky Momberg:

"THE HIDDEN CORONA TRUTH?

What is most disturbing though- is that there seems to be a darker agenda creeping into this "Corona" business- one that is not notably visible- but when you start playing "devil's advocate" - becomes more apparent:

1. Mostly businesses in the private sector were forced to close down and suffers huge losses- while government institutions still are allowed to operate as normal. Now as we know- most government institutions consists out of mainly BLACK people and private businesses consist out of mainly white and other minority group people. Thus- the majority black people in the government still receives their full monthly salary, do not suffer any losses- and still are able to survive the "Corona" lock-down.

2. In the private sector certain concessions were made to the BLACK taxi business and the informal traders to proceed operating as normal. As we all know - again the taxi business consists of mainly BLACK people and so does the informal traders as well.

3. When loans to assist struggling businesses was granted- only businesses which are 51% BLACK owned could qualify for government assistance.

4. It also is the majority BLACK people that receives state grants.

5. We also took note that it is mainly struggling BLACK people that receives preference out of the government's Solidarity Fund when it comes to handing out food parcels. Not ONE white impoverished squatter camp resident received any assistance in this matter.

Do you note that the term "black" keeps popping up in all the cases where concessions and government assistance is given? Is it again another crude twist to hide the ANC's own terrible governance and drum up voter support again for the next elections ? AND all it would take to destroy the mainly white private sector is to keep on "extending" this "Corona" lock-down for several months. The white minority will then be totally destroyed, impoverished and at the mercy of the state all while the black majority will still be well looked after and Black Economic Empowerment also rule the business world. What a fine example of Ramaphosa's "Fourth Industrial Revolution " that will be- all hidden in plain sight under the "Corona" veil ?

Now the question to be asked is why is it so that the majority black people in government and in the private sector still are allowed to be able to earn their income while on the other hand other businesses that belongs to other groups were shut down and prevented from doing business and feeding their families as well? This includes suppliers which are not owned by black people such as the liquor and cigarette industries as well as hardware, confectionery , snacks and many other suppliers. Why does Ramaphosa and his cronies discriminate against non-black businesses in this subliminal way- knowing quite well that any "extensions" of this Corona-hoax will totally destroy the private sector? I mean everybody(mainly whites and businesses) pay the biggest part of taxes. Is it not fair to say that government employees as well as the taxi and informal business sectors also must suffer the same consequences as the rest? Why does Ramaphosa not stop all salaries of government employees and all black businesses bar "essential" services as well- including himself and his ministers? Is this a deliberate hidden nepotistic attempt to 1) Destroy the middle class entirely so only the super rich and super poor would be left- and 2) Destroy all non-black businesses in order for the black majority to survive and becoming stronger in a hidden " Fourth Industrial Revolution" scenario?

This way NO white business will survive, people will not be able to honor their obligations, foreclosure of property and assets will follow- and the majority whites will join their next of kin in impoverished squatter camps where the ANC feels " comfortable " with them to be. This is questions that now slowly came to mind if you look what is happening currently hidden under this "Corona"-lock down exercise. Am I wrong in this assessment?"

I am of two minds on whether to say I agree with the above post or not. What I am certain of, however, is that nobody would have felt brave enough to publicly post something like this on Facebook or any other social media platform if people knew that everything was going to be alright.

Now- I have said something about financial relief. 

At the moment I know of 9 different schemes:

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Note here that this is a loan and not a grant!

Sole proprietors that do not employ anyone but themselves do not qualify for this one...




This is the second one that provides for the Agricultural sector.

                                    

And- if you have started or want to get into the business of importing and selling rubber gloves, face masks and all other COVID-19 essential goods, the Industrial Development Corporation has thought of you:

Now- we have seen that you can get loans from the IDC to import COVID-19 essential products, but the National Empowerment Fund has even bigger long-term loans available to those who want to manufacture these goods:

- if the you are black, that is...


Employees are taken care of:

And then we have this scheme that seems to be the refuge of those businesses who are not in any of the above sectors or black-owned...

I would have preferred to attend to my divorce matters and the civil matters that I have pending at the moment, but like for many of us, my priorities have also shifted.

We should apply for funding with the above schemes. And- if any applications are refused- we need to be informed why. If the reasons we receive are not acceptable we still have access to the Courts. 

Given the 21 day period for administrative institutions (like the above organisations) to furnish reasons and the amount of months that it shall take for court cases to get finalised we might very well find that the lockdown ends before the cases are finalised and that some aggrieved applicants manage to get back on their feet before the matter gets finalised, but- if the number of new cases of infection do not drop soon enough this funding shall be all that many people have to rely on.

I know some people will want me to mention the tax relief, but I shall just say that I at least hope that our government is smart enough to know the source of their tax revenue and that they shall not mess with it too much. For one- I would like to see if I qualify to pay any tax next year after this huge knock... I think many of my fellow South Africans feel the same.

Nonetheless- Good luck to you all and Godspeed.

Our Courts and Lawyers during Lockdown

Hello, everyone!

I am not one to jump on bandwagons, and I am also not going to start, but I have felt that many of my clients have not heard from me since 27 March 2020 and I have also not heard from them either, so-

I think it is time to say something...

First- if the numbers that I got from the Covid-19 Info Centres of Facebook and Twitter are anything to go by we have almost halved the rate by which the Coronavirus has spread here in South Africa within a week.

Good job, everyone!

I hope we stay strong and safe together and that we will reduce the spreading to zero within the coming week. 

Until that happens- I have noticed that some of my clients still remain concerned about the progress in their matters.

That- in itself- is a good sign. It means we are still expecting life to return to normal much sooner than the economy will collapse...

Other lawyers will tell you that we are also confined to our homes now. Most of our court cases that were to be heard on dates that now fall within the Lockdown period have been either postponed to expected dates after the Lockdown or put on indefinite hold for us to enrol again once we return.

Those are your normal civil matters.

Soon after the Lockdown had begun, however, we have been informed that our courts now operate on skeleton staff being available to help with only urgent, essential matters. The interpretation of what exactly is deemed "urgent and essential" was not left up to us.

In our High Courts people that wish to challenge the constitutionality (in laymen's terms that would translate to fairness and validity) of the measures currently imposed by the State to combat the spreading of the Virus shall still be heard and the Court remains available for that.

Then- any other matter that is urgent and that can result in serious hardship for an applicant if it is not heard immediately-can still be brought before the High Court. High Courts have inherent jurisdiction, which means that you cannot really limit this category of cases to only a certain kind, but- don't be surprised if you have reckoned that the circumstances of your case merit urgent hearing and find that the Court does not share your view. The test I always apply is: "What will happen if we wait until after the Lockdown?"

As for Lower Courts I do not see any work for the Civil District Courts or Civil Regional Courts, but our Family Courts remain open and available to deal with the matters listed as follow in the Regulations:

That does not mean, however, that attorneys and advocates are now allowed to travel back and forth between home, office and court to attend to these matters.

The form that you see on top of this post is actually to be used by a lawyer to apply for a permit to leave his/ her home to attend to any of the matters mentioned above.

How long it takes for such a permit to be issued I do not yet know, because I have not yet had to apply for one. If I do find out I will let you know.

As for consultations- technology is of a much greater help these days. I can imagine the astronomic phone bill of anyone that opted for telephonic consultations if this Lockdown was imposed on us during the 1980's.

Now- with all the internet based voice and video chat applications- and even email- at our disposal, we can still maintain contact with our clients, give advice and get the information that we need. 

Before I stop typing I just want to thank my clients for their continued support. I realise that we are in for a tough time ahead and seeing that you are still here means a great deal to me.

Stay safe and, for the time being, let's stay out of court as far as we can...

  

What is going on in Mpumalanga?

Last year had the implementation of our new High Court Practice Directive here in Mpumalanga.

While it is true that this new practice directive was issued to implement the new Rule 37A of the High Court Rules it is clear that this directive was issued in response to something that the Judges did not like.

"What things do our Judges not like?" you may ask. Well- the things in particular to which our practice directive was a drastic response appears to be the following:

- Parties showing up on the date of trial only to say that they are unable to proceed;

- Parties reaching a settlement on the date of trial (I still don't get why an unexpected early end to a matter annoys a Judge so much...)

- Files that are not indexed and paginated

- Applicants and Plaintiffs getting judgments and orders by default (As you will see later herein- if you are the one instituting legal proceedings against somebody else- our High Court does not like you at all. I reckon that it is because they know that the work that they end up having to do originates from you. Ironically enough, however, Respondents and Defendants get given even more time to delay matters and to avoid liability- keeping matters on the roll for longer. I suspect that the only reason the Courts like them so much is because they are an easy way with which to punish Applicants and Plaintiffs...)

So- what has our Court done about these things with their Practice Directive?

Well... If you look at the practice directive itself it seems like it was really meant to ensure that practitioners are ready to proceed on their dates of hearing/ trial and that parties that contest proceedings merely for the sake of delaying a matter's finalisation get cut off from playing for time indefinitely. I mean- Having a case management meeting after having received a Notice of Intention to Defend to find out in advance by what dates our Defendants shall file their pleas and be ready to stand trial actually sounds like a good thing for the Plaintiff, right...?

Yes- that is the beauty of the whole thing on paper.

What nobody has bothered to put in writing was that after having received the Notice of Intention to Defend the date for that case management meeting is a month away. Yes! A month away!

So- In the Mpumalanga Division of the High Court of South Africa our Court has actually sanctioned a measure that automatically delays any defended matter before it with a month or more- as if a Notice of Intention to Defend does not already afford a debtor enough time to avoid you getting judgment against him!

So- If you owe anyone more than R 400 000.00 or cause anyone damages exceeding this amount- be sure to get sued here in Mpumalanga!

Well...

Our High Court was dismayed to find that the attorneys in our province had soon accepted the new status quo and had become adept at filling out the forms required by the Directive. This had led to the Judges having to face large numbers of attorneys in the mornings (not too early, though, as our Judges still make them wait until about 11h00 as with their normal motion court days) and they ended up having splitting headaches by lunchtime.

So- something had to be done. And indeed- something was done-

The forms were amended with immediate effect, regardless of when legal proceedings have been instituted.

So... those pesky attorneys were kept occupied with the filling out of the new forms and (tsk! tsk!) some would now even have to postpone their case management hearings- hopefully leaving the courtroom emptier and enabling the Judge to return to the tranquil bliss of his/ her office much earlier.

Litigants in Gauteng and other provinces will have no idea what I am talking about. No Judge in their jurisdiction has ever felt the need to keep matters on the roll for a while longer in order to look busy. They manage to be busy even when all matters before them get finalised in record time!

So- what lies ahead for us? Will our Judges change their minds when the Court's case load has grown large enough to make them more eager to see them getting finalised than dragged out indefinitely for the sake of looking busy for the Department of Justice and Constitutional Development? Somehow I think the probability is that they will rather find a way to make the Court less accessible to limit their workload...

So- If you have to approach the High Court- good luck to you!

If you want to get divorced here in Mpumalanga- try your best to get it done in the Regional Court! 

  

Best wishes for 2020- Another great year to serve

A warm hello to all clients and readers of this blog.

I hope that you have all managed to at least find some way to end the previous year and not just the previous month.

I have stayed open during this last December for the longest time I remember in this practice's history.

Now- I am at Year 4 if we count only count the full years of myself practicing for own account.

I was glad to have managed to prevent a dear old lady from being evicted from her own home in which she had been living for more than 30 years.

Last year was also the first year in which I have obtained a court order that allows a divorced mother to leave the country with her children without having to obtain the father's consent. To top it all- the order allows her to emigrate. I know of a couple of mothers who would just like to take their children across the border for a vacation...

This year, however, promises to be exciting.

Among the numerous developments in our Law the Uniform Rules of Court has gotten a new rule in terms of which a judgment can now be rescinded in the judgment creditor consents or if the judgment debt and costs are paid up.

What does this mean for you?

Well- just a year ago you were not able to get the judgment for your arrear bond payments removed from your name even when you have paid the full outstanding amount. That reason for rescinding or setting aside a judgment did not exist back then. Now, however, a judgment debt being paid- up and consent by the judgment creditor are grounds on which you can apply to get such judgments set aside.

I look forward to handling a couple of such matters.

In other news I am happy to say that I have learnt that motor vehicle financiers are not as merciless as I have initially thought them to be. I can now invite those of you who are trying to get hold of the bank when you need to make arrangements to accommodate you in your financial distress. Believe me- the result of communicating with the bank before summons is issued is a lot better than that of trying to negotiate after the court has already authorised the removal of your vehicle.

Then- although this is not the last in the list of services that I have to offer for this year- I want to remind businesses that I gladly help them recover debts owed by those entities who seem good at either hiding themselves or their assets. 

With regard to debt collections I have decided to take only 10 percent collector's commission on recovered debt payments rather than giving the client an itemised bill every month if that client gives me 10 or more debtors to handle. Although there may be some cases where I shall choose not to pursue some debtors altogether, mostly to avoid having to incur severe costs, this way of working actually saves the client more money and has a bigger likelihood of letting the client experience money coming in rather than paying more than the amount he is trying to recover.

And- with that- I wish you all a pleasant return to work and a wonderful year ahead.

Best Wishes for this End of Year

Here we are-

At the end of a tough 2019...

I am glad to see that I am not the only one who has experienced this year as a particularly long one.

I am now at the end of Year 3 for my practice. I am happy to say that I have had my second audit to be approved by this Legal Practice Council of ours.

One of the highlights of this year is that I have managed to get a court order authorising a mother to leave the country with her minor children without needing the father's consent. Now- before anyone starts raising issues such as child abduction and so forth- let me first tell you that this is one of two cases where the children reside with the mother and the father resides far away.

In one of these cases the father does not even bother to keep contact with the children and this hurdle of having to obtain his consent even for just a vacation in Mozambique is unreasonable when one considers this.

2020 is going to be my fourth year in this practice. I am really looking forward to it. It is just around the corner. By that I mean- really- it is only 23 days away...

So- before it shows up- let me thank my old clients, and the new ones that have just shown up, for their support throughout this year.

I wish all of you a blessed Festive Season. Those of you who have to work through this December- I am with you. I have decided to work all the way into the new year. :)

Those of you travelling on the roads this holiday- stay out of trouble.

If you can't- and that attorney that you have in your pocket is on vacation and out of reach- I hope that you have put R 8 000.00 aside for the occasion.

To all of you, however, I hope you take some time this Christmas to appreciate the people closest to you. I also hope that you have a prosperous and joyful 2020.

 

Attorneys and Advocates- who is more senior?

Am I an attorney or an advocate? 

Last week I have attended a meeting hosted by the LSSA at which one of the speakers mentioned during his speech that a Minister (it is really not important which Minister it was or in what context it was said) remarked that he "knew" that Advocates are more "senior" than Attorneys.

I know very well that it is not just a Minister that thinks this. This is a common view that pops up from the public every once in a while...

It sometimes appears in the form of a client who specially requests for an advocate to be appointed, without any knowledge of who this advocate may be or what he has done, just because his opponent has one on his side, or where an advocate gets requested because he or she happens to be well-known among the public.

Much of the legal profession runs on appearances. That cannot be disputed. I will admit that where appearance is concerned advocates often do appear better than attorneys. You don't see them rushing back and forth to deliver papers. They don't index and paginate court files. They don't make copies of documents. No no no... They instruct attorneys to do those things...

Western society has a tendency to give more respect to those people who are not seen to be involved in what is regarded as menial tasks.

We as attorneys? We take telephone calls, write letters, deliver documents, make sure that a court file is ready for trial or hearing and deal with the management of a court case long before the advocate gets his moment in the spotlight at court. Since none of these tasks are seen by the public watching from the gallery- it is understandable that the person that does all the talking, and sounding really clever while he or she is at it, shall be regarded as "more senior".

Truth is, however, that if one has to look for a reason to give the one higher regard than the other not even differences in legal knowledge will be of any use. Knowledge differs among attorneys as much as it differs between attorneys and and advocates. The difference with advocates, however, is that, fortunately, the advocate usually advertises his specialised field of expertise so that an attorney can know who to call upon to fill the gaps in his own knowledge if a case calls for it. This is why I hold the view that an attorney is in a much better position than a client to decide whether the appointment of an advocate is necessary or not.

You may ask: Hasn't an advocate studied longer for his profession than an attorney?

The answer is that is a simple "no".

It deserves to be mentioned that vocational training in addition to the LLB degree has always been a requirement for attorneys while new advocates only get to have this requirement after the enactment of the Legal Practice Act in 2014. Before this time an attorney had to serve a term of articles (usually 2 years of grunt work) and then write he Board Exam after he or she has obtained the LLB Degree. During this time many advocates got admitted as such just by obtaining the LLB Degree and then applying to the High Court to be admitted as such.

I love appearing in court and attending to my own hearings and trials. As a result I have litigated against many advocates in my time and will still do so for a long time to come.

The benefit that my clients derive from this is that they do not have to pay the unforeseen expense of an individual whose costs I was not able to estimate in the projection I give at the time of taking first instructions and costs get managed a lot easier. Whenever an advocate does become necessary I do not hesitate to appoint one, but the costs are always risky because you never really know what an advocate charges. I am glad to say, however, that I am fortunate to know some really competent advocates or counsels whose fees are really reasonable.

The benefit that I derive from doing my own trials and hearings is of course that I get to receive the day fee in respect of the court appearances.

Before I leave you- I want direct your attention to the above photos. That is my High Court wear. Advocates wear the same kind of attire. So- if you do not know us beforehand you will not be able to tell us apart in the High Court. :D

You the Unpaid Subcontractor

The story is heard more and more in South Africa, especially in the construction industry-

Your BEE score is definitely not even nearly right for you to be awarded the tender, but the contractor that did actually get it has given you your big break. You are now a subcontractor and in line for your slice of the pie...

Then comes the payday... or... it does not come...

You find out that your benefactor has already been paid by the government department that is his client, but he has conveniently forgotten to pay you.

So- what do you do?

Well... For many subcontractors the contract is still too big an opportunity to pass up and they stay on board- usually having received some promise of payment at a later stage or an arrangement with the client to pay them directly the next time.

Some wait for months on end for payment and pay their workers out of their pockets.

Others suffer huge losses and go out of business...

It is common knowledge by now that a large number of bidders who do get awarded tenders for government construction projects have absolutely no knowledge or experience of the work that they undertake to do. In cases like these the contractors rely on the expertise of their subcontractors to earn them the money that they pocket.

Some of these tenderpreneurs, however, care only about what the money paid by the Government can do for them and they have a habit of first spending this money on what they want before paying any of their business debts. This usually gets demonstrated very clearly and it is important from a legal point of view to take note hereof.

So- once you have found that your client, the Tenderpreneur or Government Contractor, has left you in the lurch- what can you do without involving the courts?

Well... the truth is- not much...

You may think that the signed undertaking to have the next payment go directly into your bank account instead of the main contractor's has solved the problem, but what you don't know is that the government department involved is not automatically bound by this arrangement between you and the Contractor- not even if that trusted contact at the government office is present when the arrangement has been made.

A government department's procurement and supply chain management policy is very strict about where public funds are to go during the course of a project and if your arrangement for direct payment is not approved by the government department in question you have a contractor that will defend himself with that the problem now lies between you and the Government and that trusted contact that stops answering your phone calls when the money does not come when it is expected.

So- you will most likely not get very far without an attorney when your mandator stops paying you.

So- what can your attorney do for you?

Here are the options that you can consider:


1. Business Rescue: 

No. Not for you! For the Mandator! Before this term had entered our law we used to have judicial management. Well- we still do, but it is called Business Rescue now. Not only the owner of a company, but also a creditor of such a company can approach the Court with an application for the company to be placed under Business Rescue when the creditor can demonstrate that the company has a steady enough cash flow, but that the money just does not go where it is supposed to, or, that the company does not have much of a cash flow, but that it SHALL improve if a competent person is placed in charge.


2. Anti-Dissipatory Order: 

You cannot get a garnishee order against an organ of state from your local Magistrates' Court. The High Court, however, can make sure that that retention money that is still lying with the government goes nowhere until the legal proceedings that you have instituted are finalised.


3. Winding- Up:

We may all know that winding-up is the automatic choice for a creditor when the debtor appears unable to pay his debts, but winding-up proceedings have another use as well.

Every now and then you find a crafty tenderpreneur who is the director of not just one company, but also a director of a couple of other companies, member of a close corporation or two or even a trustee or beneficiary of a family trust.

The moment you start looking for the money that was supposed to have come to you, you find that large amounts thereof have gone to all these different entities. A liquidator, however, is able to track down these lost funds and recover as much thereof as possible for the benefit of creditors.


4. Priovisional sentence:

Many learned colleagues can name a number of circumstances under which this remedy is appropriate. What these proceedings do is bypass the necessity of a full action procedure (which includes a trial) and jumps straight to the hearing of the matter. Instead of oral evidence, parties usually present their sides of the story in their affidavits and parties usually need not present oral evidence. Most of the time spent in court (besides waiting for the matter to get called, of course...) is spent on arguments presented by legal representatives of the parties. It is a much quicker way to get judgment in your favour than your normal action procedure that starts with a summons and that only reaches the trial stage after a lengthy process of exchanging all manners of paper.

Now- I have said that learned colleagues can name a number of circumstances under which you can apply for this relief, but I say your best bet is when you have the following:

1. A written acknowledgement by the debtor (who is of course the Mandadtor)

2. of the precise amount owed; 

3. that contains no conditions yet to be met by you (or which confirms that you have met all conditions for payment);

4. which can be a letter, email or a written undertaking to pay.


5. Action procedure:

This is really your last resort. This is your option when you have no such document that qualifies you for provisional sentence and your claim for payment is disputed.

Sure- it costs money and it takes time, but having proceedings like this on the court roll places you in a far better position than trying to phone people who have long since stopped answering your calls...


So- If you are a subcontractor that is experiencing non-payment by your mandator- don't just leave it to chance. Contact me and let us get something done about it!