THE DIFFERENCE BETWEEN LEGAL PROFESSI ONAL …

1 SEPTEMBER 2016 THE SA ATTORNEYS JOURNALI HEARD IT THROUGH THE GRAPEVINE:THE DIFFERENCE BETWEEN LEGAL PROFESSIONAL PRIVILEGE AND CONFIDENTIALITYNADEL NEC resolutions discussed at press conferenceDying declaration should the dead have a say in a matter?When is it appropriate for the sentencing court to interfere with parole?Brie ng Pattern Task Team drafting brie ng protocol for the professionEvictions a sad reality in South AfricaNewly appointed judges acknowledgedBLA strengthens relations with the NBAOn the relativity of property rights in the PARTNERStop tier firmtop tier firm6top tier firmteam of the yearSA firm of the yearManagingIntellectualPropertyTMtop tier firmelite law firmrecommended firmrecommended firmTOP FOREIGNLAW FIRMSI N DI A B U S I N E S SL AW J O U R N A L2016top foreign law firmENSafrica | Africa s largest law 12016-07-12 12:56.

2 24 PMDE REBUS SEPTEMBER 2016- 1 -SEPTEMBER 2016 Issue 567 ISSN 0250-0329 CONTENTSR egular columns Editorial 3 News NADEL NEC resolutions discussed at press conference 4 Black Lawyers Association strengthens relations with the National Bar Association 5 Newly appointed judges acknowledged 7 Pathway to progress: One small act can make an impact 8 2016 annual general meetings 8 Cape Town Candidate Attorneys Association update 10 LSSA News Briefing Pattern Task Team drafting briefing protocol for the profession 12 LSSA fields election observer team 12 People and practices 14 Practice management Applying for a Fidelity Fund Certificate 15 Trust account risk and risk to the practice s business 17 Practice note The validity of a verbal antenuptial contract 18 Retirement funding obligations on the employer 19 The Special Voluntary Disclosure Programme.

3 Recent developments 20 Book for lawyers 21 The law reports 35 Case notes Lockout of members of trade unions not party to a bargaining council 41 Employer liable for damages caused to ex-employee due to non-compliance with debarment process 42 New legislation 44 Employment law update 45 Recent articles and research 47 THE SA ATTORNEYS JOURNALTHE SA ATTORNEYS JOURNAL107307428DE REBUS SEPTEMBER 2016- 2 -Dying declaration should the dead have a say in a matter?FEATURES28I heard it through the grapevine: The DIFFERENCE BETWEEN LEGAL professional privilege and confidentialityEDITOR: Mapula Thebe NDip Journ (DUT ) BTech (Journ) (TUT )EDITORIAL SECRETARY: Shireen MahomedEDITORIAL COMMITTEE: Mohamed Randera (Chairperson), Denise Lenyai, Giusi Harper, Peter Horn, Lutendo Sigogo EDITORIAL OFFICE: 304 Brooks Street, Menlo Park, Pretoria.

4 PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. Tel (012) 366 8800 Fax (012) 362 0969. E-mail: REBUS ONLINE: : Acceptance of material for publication is not a guarantee that it will in fact be included in a particular issue since this depends on the space available. Views and opinions of this journal are, unless otherwise stated, those of the authors. Editorial opinion or comment is, unless other-wise stated, that of the editor and publication thereof does not indicate the agreement of the Law Society, unless so stated. Con tributions may be edited for clarity, space and/or language. The appearance of an advertise ment in this publication does not neces sarily indicate approval by the Law Society for the product or service ad ver Rebus editorial sta use online products from: LexisNexis online product: MyLexisNexis.

5 Go to: ; and Juta. Go to: PRINTER: Ince (Pty) Ltd, PO Box 38200, Booysens VERSION: The audio version of this journal is available free of charge to all blind and print-handicapped members of Tape Aids for the : Main magazine: Ince Custom PublishingContact: Dean Cumberlege Tel (011) 305 7334 Cell: 082 805 1257 E-mail: eds supplement: Contact: Isabel JoubertTel (012) 366 8800 Fax (012) 362 0969PO Box 36626, Menlo Park 0102 E-mail: INQUIRIES: David MadonselaTel (012) 366 8800 E-mail: De Rebus, the South African Attorneys Journal, is published monthly, 11 times a year, by the Law Society of South Africa, 304 Brooks Street, Menlo Park, Pretoria. It circulates free of charge to all practising attorneys and candidate attorneys and is also available on general MAILING LIST INQUIRIES: Gail MasonTel (012) 441 4629 E-mail: inquiries and noti cations by practising attorneys and candi-date attorneys should be addressed to the relevant law society which, in turn, will notify the Law Society of : General, and non-practising attorneys: R 920 p/aRetired attorneys and full-time law students: R 710 p/aCover price: R 95 eachSubscribers from African Postal Union countries (surface mail): R 1 465 (VAT excl)Overseas subscribers (surface mail): R 1 790 (VAT excl)NEW SUBSCRIPTIONS AND ORDERS: David Madonsela Tel: (012) 366 8800 E-mail: Member ofThe Audit Bureau of Circulations of Southern Africa Copyright 2016: Law Society of South Africa 021-21-NPO Tel.

6 (012) 366 8800 PRODUCTION EDITOR: Kathleen Kriel BTech (Journ) (TUT )SUB EDITOR: Kevin O Reilly MA (NMMU)SUB EDITOR:Isabel Joubert BIS Publishing (Hons) (UP)22In the context of LEGAL professional ethics, the terms con-fidentiality and privilege are often used interchangea-bly. While these two terms may overlap in some respects, they remain two distinct concepts says Kristin Wagner and Claire Brett. The distinction BETWEEN confidentiality and LEGAL professional privilege is absolutely essential insofar as their differences ensure the proper functioning of the South African LEGAL system, which is dependent on freedom of communica-tion BETWEEN LEGAL practitioners and their dying declaration is based on the Latin maxim nemo moriturus praesumitur mentiri . Literally translated it means a man will not meet his maker with a lie in his mouth.

7 This article written by Sherika Maharaj, discusses the history of the dying declaration and the LEGAL principles prac-tised in South a sad reality in South Africa30 Madeleine Truter writes that South Africa s history is one where the majority of people have been deprived of land, and have experienced a lack of access to hous-ing and despite the progress made by the legislature and ju-diciary to ensure that no South African is left homeless, land evictions are still rampant, and officials on the ground are finding ways to circumvent the overarching test of justice and equity , introduced by the PIE Act. On the relativity of property rights in the Constitution32 The very first founding provision of the Constitution de-clares that the Republic is a state founded on values. Our social order is in the first place a value based soci-ety, and not rule based.

8 This article, written by Johan van der Merwe, aims to consider briefly, and in very broad strokes, how the concept of property rights in a democratic constitu-tion differs from the pre-constitutional dispensation, what the values are that underlie the rules of constitutional property rights, particularly vis- -vis use rights, the impact on social and environmental justice, and how the Constitutional Court is giving effect to these is it appropriate for the sentencing court to interfere with parole?26In practice there are judicial officers who impose a sentence that the accused will undergo a certain period of imprison-ment and will not be eligible for parole. Nicholas Mgedeza and Dumisani Masuku discuss whether the magistrates courts are vested with the powers to impose a sentence where parole is denied?

9 DE REBUS SEPTEMBER 2016- 3 -EDITOR S NOTEW ould you like to write for De Rebus?De Rebus welcomes article contri-butions in all 11 official languages, especially from LEGAL practitioners. Practitioners and others who wish to submit feature articles, practice notes, case notes, opinion pieces and letters can e-mail their contribu-tions to decision on whether to pub-lish a particular submission is that of the De Rebus Editorial Com-mittee, whose decision is final. In general, contributions should be useful or of interest to practising attorneys and must be original and not published elsewhere. For more information, see the Guide-lines for articles in De Rebus on our website ( ). Please note that the word limit is 2000 words. Upcoming deadlines for article submissions: 19 September and 17 October and fair elections?

10 Mapula Thebe EditorFollow us online:@derebusjournalDe Rebus, The SA Attorneys the heels of the local government elections held on 3 August, the Law So-ciety of South Afri-ca (LSSA) issued a press release, which states that the elections were on the whole free and fair . The LSSA fielded a team of over 300 admitted attorney election observers during the local gov-ernment elections. The press release goes on fur-ther to state that there were some irregularities that were observed during the elections. The LSSA will investigate the irregularities further; all the details regarding these will be noted fully in the final report, which will be published during August. It goes without saying that free and fair elections are part and parcel of any thriving de-mocracy.