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Speaking to colleagues, horror stories are plentiful. Stories of civil court files gone missing for months, sheriffs without vehicles, backlogs in courts regarding motions, default judgments and maintenance claims, sheriffs’ offices taking up to six months to serve documents, chaos in filing of documents at the Masters’ Offices, delays in transfers at the Deeds Offices, backlogs in courts, backlogs at the Masters’ Offices and other Registrars, loss of dockets or other important evidence, absence of knowledge and lack of work ethic.

Serious concerns regarding new legislation pertaining to the courts and the legal profession have some of us running for the hills, this time to Australia. It is a bleak picture indeed, because for some, the wheels are falling off and the end is nigh.

Why, then, did I recently encourage an exceptionally bright young man to study law and not engineering? This is because this country and its people need exceptionally bright people to become attorneys, advocates, state prosecutors, magistrates and judges. The law has such an influence on all aspects of our lives that we cannot afford to have a legal profession without the necessary knowledge and abilities to protect us all.

If it were not for exceptionally bright people in the legal profession, we would not have had the ability to register our child in the school we deem appropriate, free from the bounds of so-called “feeding areas”. We would not be able to return that set of encyclopaedias purchased from the salesmen who came knocking on the door, would have to pay extraordinary interest on our credit agreements and have no guarantee of safety of ownership of our property.

Bright, able minds in the legal profession are of utmost importance to us all. And yes, transformation regarding race and gender is crucial, necessary, and should be embraced and encouraged. Unfortunately, the low entry-level requirements of the LLB degree has resulted in a large number of students with very few, if any, exceptionally talented candidates. The latter prefer better paid, less regulated occupations. All the more reason why the brightest and most talented should study law. By abandoning the profession and thus the legal system we, as the people of South Africa, will be much worse off. The truth is that the legal profession actually makes a difference in your life, each and every day.

Life in an attorney’s office is not as portrayed in an American television series. It is not Suits or Boston Legal (although some of us wish!). We do not work in designer clothes and not all assistants and secretaries are beautiful, blonde, hourglass-figured and sharp-witted. Our offices are not all glass-walled designer areas with quirky memorabilia, couches and clean desks. We have files – hundreds of them. And that is why you in all probability only consult with your attorney in the boardroom or consultation room, as their office space is cluttered with towers of files!

The work requires long, lonely hours of drafting, reading, thinking, considering, re-considering, and arguing with oneself. You need to work exceptionally hard on each matter to achieve the best outcome for the situation for each of your clients. Not all clients have unlimited resources and thus you have to work within the constraints of their financial ability. Attorneys mostly do not charge fees for all of the effort and time spent.

The one thing that each branch of the legal profession has in common, is that at the end of each day, regardless of when the day ends, you can close your door knowing that you have actually made a difference in somebody’s life, whether it be settling a divorce or finalising an amalgamation agreement, collecting the outstanding levies for painting of a sectional title scheme building, having your client’s debt review successfully granted, or the successful opening of a township plan.

Another satisfaction is knowing that you will never know EVERYTHING – the law is too extensive, too complicated and develops too rapidly to keep up with the intricacies of it all. There will thus always be something new to read, learn or to consider. You will always be able to consider new approaches to old problems and may even argue the same point in law from different perspectives.

If you are willing and able to work hard, learn, and grow in the legal profession you will be able to look back one day on your career with delight and satisfaction because no two days were ever the same. No court appearance, litigation, transfer or contract is ever the same; and while you were busy you actually had fun – enjoyed the good argument, the adrenalin rush to get the urgent application served, the ticking clock on the service of the plea, answering affidavit, reply or summary judgment application.

That is why you should encourage your talented and bright child to study law. He or she might just make the difference you may need one day.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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Where did you grow up?

I was born in Cape Town and the first half of my life I lived in Edgemead with my mom, dad, younger sister and circus of animals. I attended Edgemead Primary School and thereafter moved to Rondebosch and attended Rustenburg High School for Girls.

When did you decide to become a lawyer?

It was sometime in Primary School, I remember wanting to study either law or accounting. In High School when it came to applying to universities I made my decision to apply for law. To my family and friends I am known as “Lor” – everyone thought that studying “law” was quite fitting – “Lor” studied law!

Where did you study?

I studied through Unisa taking full time classes at Varsity College in Rondebosch. Here we received one-on-one attention from the lecturers as our classes were usually restricted to no more than ten students per class. We were lectured by practising and retired attorneys thus we received first-hand knowledge which we found to be very enlightening.

Why do you want to be lawyer?

Simply put – I want to help people – that is why I decided to study law in the first place.

What challenges do you face in your profession as a young female attorney?

It can at times be difficult to be taken seriously as a professional since I am   young. It is also a well-known phrase that “the customer is always right” thus at times I find it challenging to know what is the best manner in which to explain and convince a difficult client that they are unfortunately mistaken in a certain situation and provide my professional advice.

Where do you see yourself in ten years’ time?

Only time will tell, but hopefully I would have climbed the “legal ladder” and perhaps be a director of a law firm.

What advice do you have for young people who are considering studying law?

I would advise that the road to qualifying as an attorney is very long and not an easy path. Before deciding to study law one must decide whether one is prepared and ready for much hard work and many sacrifices. The profession can be very rewarding at the end of this lengthy journey.

It was quite insightful to have a quick chat with my colleague and I, together with our firm’s directors and support staff wish Laura all of the best for her career in the legal profession. Be on the lookout in our next newsletter for more interesting interviews with the people behind the success story that is Schnetler’s Inc.

Compiled by: Annerine du Plessis

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As a young attorney I am often confronted with the question whether there is a body that governs the legal profession or whether we, as the peacemakers of a nation, have carte blanche to act as we wish, not abiding to any rules or regulations. Are we free to do as we please?  Strangely enough I do not feel offended by questions of this nature, and to be blatantly honest, I can comprehend why such a question may be asked. I once read a quote by Mario Puzo that is self-explanatory: “A lawyer with his briefcase can steal more than a hundred men with guns.” 

In South Africa there are four statutory law societies in place:  The Cape Law Society, The Law Society of the Northern Provinces, The KwaZulu-Natal Law Society and The Free State Law Society. Every attorney in our country is a member of the law society in which he / she is practising law.  Each of these law societies had their own separate sets of rules which applied to their members.  This worked all good and well until in more recent times law firms started to branch out to different parts of the country.

National law firms normally have offices and branches in various provinces and different sets of rules would apply to each different branch of the same firm – this created chaos and led to some untenable situations.

Little did we know back in 2009, when discussions on the nationalising of rules for attorneys initially kicked-off, that all South African lawyers will be painted with the same brush seven years later!

The unification of the four sets of rules was a long and complex process. During 2014 attorneys had to approve the new standardised rules at annual general meetings of the provincial law societies, where after the Judges President and Chief Justice had to give the proverbial thumbs up. These discussions and negotiations lasted nearly a decade and after the long wait, the National Rules for the Attorneys’ Profession finally came into operation on 1 March 2016.

The Rules consist of eight parts and 55 rules in total. Some of these rules include inter alia rules regarding the general practice of attorneys, accounting rules for law firms, rules on the conduct of attorneys and the process of disciplinary proceedings against attorneys whose conduct is unprofessional and dishonourable.

So, the simple answer to the popular question I am often asked is, yes we do! As with many other professions legal practitioners are also bound to their own set of rules.

Law is an imperfect profession in which success can rarely be achieved without some sacrifice of principle. Thus all practicing lawyers — and most others in the profession — will necessarily be imperfect, especially in the eyes of young idealists. There is no perfect justice, just as there is no absolute in ethics. But there is perfect injustice, and we know it when we see it. ALAN DERSHOWITZ, Letters to a Young Lawyer

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

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In a recent unreported decision in the High Court of South Africa, North Gauteng High Court, the Court was again faced with the principles regarding disclosure of material information by an insured to its insurer.

What is interesting about this case is that the insurer was estopped from raising the defence of non-disclosure by placing a burden on the insurer to undertake a certain risk assessment of the property. The facts of the matter are fairly simple. The insured instituted action against its insurer for a loss suffered as a result of a fire on its premises which destroyed the building. The insured further claimed for a loss of rentals. A lot of evidence was led about the underwriting of the policy. What is important is the fact that the insured, through its broker, requested that the property be insured. On 15 March 2010 the property was insured and the broker requested the insurer’s representative to urgently arrange for a survey of the premises. The insurer’s representative then requested the insurer to conduct an urgent survey to determine the risk pertaining to the premises. By 24 May 2010 the survey had still not been conducted. The insurer repudiated the insured’s claim on the basis that it was under the impression that it was insuring certain offices/warehouses, but that the actual tenant of the property conducted the business of fibreglass manufacturing. The insurer was of the view that fibreglass manufacturing is a different risk to that of an office or warehouse, or property developers and suppliers of bedding goods they thought they were insuring.

Our case law has developed to a point where the Short Term Insurance Act has cleared up what test should be applied to establish the materiality of a non-disclosure. It boils down to the simple question as to whether a reasonable person would have considered the facts that should be disclosed reasonably relevant to the risk and assessment thereof, to the insurer. In layman’s terms, if you sit down and apply for insurance, you must consider all facts that a prudent person would disclose to his insurer that may affect the risk. For example, if you have a property and a compost heap that has the risk of catching fire, it must be disclosed to this insurer that you have such a compost heap. Should you fail to do so this may have an adverse effect at claim stage if the compost heap catches fire and damages your property.

What is interesting, however, is that the Court in this instance upheld the insured’s Plea of Estoppel. The insured contended that it was stated to them that an urgent survey would be done.  The insurer did not revert to the insured to inform them that a survey would no longer be conducted, as a consequence of which the insured was entitled to accept that a survey had been done.

What we as consumers can take out of this case is that if you are in doubt as to what should be disclosed, you should request the insurer to conduct a survey of your risk. By doing this you place the burden on the insurer to make sure that they are satisfied with the risk that they are accepting.  This will in all probability raise potential problems for the insurance industry. Understandably, an insurer cannot employ people to assess every risk that it places on its books. If every insured requires such an assessment this can create an administrative and costly nightmare for the insurance industry.

The question should also be raised whether the insured should not from the outset have disclosed that its tenant was in the business of fibreglass manufacturing. Surely it would have been prudent to make such a disclosure at the outset. What the broker has done, however, is to place a burden on the insurer to satisfy itself about the risk, and the insurer failed to do this. That failure, in the Court’s view, entitled the insured to indemnification.

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After signing a deed of sale, the purchasers often want to move into the property with great excitement and as soon as possible.

When they are informed of the process involved prior to the property being transferred this may place a damper on their excitement.  Coupled with this there may even be delays in the transaction.

In order to avoid unnecessary frustration it is vital that parties to the transaction understand the processes involved and that delays are sometimes inevitable. Besides possible delays there are a number of processes that need to be followed before a house can be registered in a purchaser’s name.

At the outset, it must be determined if the deed of sale is valid and binding between the parties.  If not, a valid and binding contract will first have to be concluded between the parties.

The deed of sale will normally be the starting point in a transaction for a conveyancer who has been instructed to attend to the transfer. This conveyancer is also known as the transferring attorney and is normally the main link between the other attorneys involved the transfer transaction.  Other attorneys involved are normally a bond attorney and/or bond cancellation attorney.

A major role of the transferring attorney is informing any mortgagees, for example banks, about the transfer so that any notice periods for the cancellation of bonds can start running.  The notice period is normally up to 90 days.  If the bond is cancelled before then, there could be penalties payable. The transfer may therefore be delayed as a result of the notice period.

If the purchaser will be registering a new mortgage bond to finance the transaction, a bond attorney will be appointed. Since the transferring attorney will not normally be aware of whom the instructed bond attorney is, the bank will usually inform the bond attorney of who is attending to the transfer.  The bond attorney will then first make contact with the transferring attorney.

Obtaining the various certificates, receipts and consents applicable to the transaction in question also takes time.  Examples of these are rates clearance certificate, transfer duty receipt, homeowners association’s consent to the transfer, levy clearance certificate, electrical compliance certificate and plumbing certificate.

The transfer duty receipt is obtained from the Receiver of Revenue and should be lodged with all property transactions, even if no transfer duty is payable to the Receiver of Revenue.  During 2013 it took approximately seven working days from the submission of the request, until the transfer duty receipt was issued.

The rates clearance certificate is obtained from the local municipality in the area where the property in question is located.  The transferring attorney will first request the municipality to inform him of the amount they require in order to issue the certificate.  After receipt thereof the amount can be paid and the transferring attorney will then await the issued certificate.  The time this takes differs from municipality to municipality.  In the City of Cape Town, during 2013, figures were mostly issued on the same day they were requested and the receipt was issued within approximately five working days after payment.  This time frame is largely affected by whether or not the municipality works on an electronic system.

If the property is located in an area where a homeowners’ association is established, there will normally be a title deed condition in terms of which the consent of the homeowners’ association must be obtained prior to the transfer.  The time it takes for obtaining this certificate differs from one homeowners’ association to the other.

After an inspection by a plumber or electrician it may be found that certain work needs to be carried out before the certificates will be issued.  If the work that must be carried out is extensive this can cause major delays with the transaction.

If the property is being sold by an executor of a deceased estate, the consent of the Master of the High Court must first be obtained before the property can be transferred.  Major delays can be experienced if the Master of the High Court refuses to give such consent until certain requirements have been met.

Once the transferring attorney is satisfied that all relevant documents are in place he will arrange simultaneous lodgement at the Deeds Office by all attorneys involved in the transaction.  It is therefore vital that the bond attorney has by this time obtained the required approval to lodge from the mortgagee and that the bond cancellation attorney has the required consents in place to cancel the existing bond/s on the property.

Once all the documents are lodged at the Deeds Office, an internal process is followed, which has different time frames in the various Deeds Offices.  This time frame can also vary in a particular Deeds Office. It is best to enquire from your conveyancer what the Deeds Office time frame is at any given stage.

The list of possible delays in a transaction varies from one transaction to the other and the possibilities are endless.  It is advisable to contact your conveyancer for an explanation should you feel that the process is taking too long.

References: Aktebesorging, UNISA 2004, Department Private Law, Ramwell, Brink & West

Compiled by Riëtte Nel

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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