The post What mandatory mediation means for civil litigation appeared first on RW Attorneys.

The post What to expect when you hire an attorney appeared first on RW Attorneys.

Bail is money paid to the police or court by an arrested person that ensures his release until the next court date. Bail is regulated by the Criminal Procedure Act and the amount thereof will be the discretion of the police or Magistrate.

THE DIFFERENT FORMS OF BAIL

POLICE BAIL

In terms section 59 of the Criminal Procedure Act, when a person is arrested on a criminal charge for allegedly committing an offence which falls outside Part II and Part III of Schedule 2, he may apply for bail at the police station before the expiration of 48 hours of his arrest. Common assault and theft under R2 500 are among the offences for which police bail may be granted. The police determine the amount of bail.

PROSECUTOR BAIL

In the event that police bail was denied, the arrested person must be brought before a Court within 48 hours and then becomes eligible for prosecutor bail.

Subject to conditions set out in Section 59A of the Criminal Procedure Act, the Director of Public Prosecution (DPP) or a Prosecutor authorised in writing by the DPP may allow an arrested person to be released on bail before the first court appearance.

Prosecutor bail may only be granted if the arrested person has been charged with a Schedule 7 offence. The process requires consultation with the arresting Officer or Investigating Officer. Schedule 7 offences include among others drug possession, robbery, assault and culpable homicide.

If you did not get Police Bail, you would need to be brought in front of the Court within 48 hours of your arrest to be eligible for Prosecutor Bail.

BAIL APPLICATION IN COURT

When a person is charged with a Schedule 5 or 6 offence, Section 60 of the Criminal Procedure Act requires the accused to make a formal bail application before a Court.

The offences in respect whereof a bail application is required are among others murder, including premeditated murder, attempted murder, rape, indecent assault, corruption and drug-related offences.

The application can be conducted by way of an Affidavit or oral evidence in front of a Magistrate.

It is important to inform the court of any previous convictions or pending cases. Failure to disclose this information is a criminal offence. The bail may be opposed by the prosecutor and the court will consider all of the information before making its decision.

The accused must satisfy the presiding officer that if his bail is granted, he will not be a danger to other people, will not intimidate any witnesses, will not commit any further crimes and that he will be present at all future court hearings.

The amount of bail will be the sole discretion of the presiding officer. The bail money paid by the accused person will be refunded to him once the matter is finalised but may be forfeited if the conditions of bail are not met.

It is always advisable to contact a criminal attorney to assist with bail applications.

The post Understanding Bail Applications appeared first on RW Attorneys.

What happens when it turns out that the original Loan Agreements were unlawful because they did not comply with the National Credit Act?  Will the parties be able to enforce their compromise Agreement or will it also be invalid like the underlying Loan Agreements?

This was the question considered by three Judges in the Western Cape High Court in the matter of Blacher v Josephson 2023 (3) SA 555 (WCC).

In that matter the parties entered into a Loan Agreement where they agreed on repayment terms and the interest that would accrue on the loan.  After only a portion of the loan had been repaid, the parties reached a compromise – they agreed on a fixed amount to be repaid and that interest would no longer accrue.

The Loan Agreement amounted to a Credit Agreement and therefore fell under the provisions of the National Credit Act.  The lender was not registered as a Credit Provider at the time of the loans and, as a result, the Loan Agreement were unlawful according to the National Credit Act and could not be enforced.

But what of the subsequent compromise Agreement the parties concluded?  Could that Agreement be enforced?  The Court made the following findings on this issue:

A compromise is commonly defined as an Agreement in terms of which the parties to a dispute, the outcome of which is uncertain, agree to settle it on terms whereby each of them recedes from their positions by conceding something, thereby achieving or receiving less than they intended.

Generally speaking, a compromise is a self-standing Agreement which stands independent of the underlying claim from which the compromise arose.  Once a comprise Agreement has been reached, ordinarily a party cannot then seek to enforce the original underlying claim.

However, in certain instances the unlawfulness or illegality of the underlying claim may render the compromise Agreement unenforceable.

Whether the compromise will also be unenforceable depends on the nature of the terms of the compromise agreement. If the compromise simply seeks to enforce the claim from the underlying invalid Agreement or, if a party is, in terms the compromise, attempting to benefit from the prior invalid Agreement, then the compromise Agreement will be unenforceable.  In those circumstances allowing enforcement of that type of compromise Agreement would amount to perpetuation of an unlawful act and to allow it would be contrary to public policy.

The Court found that the compromise agreement in question was not “something new and valid”, it merely constituted an agreement to repay a lesser amount than that which was claimed on the prior, existing indebtedness, and set out fresh terms as to when this was to occur.

The Court accordingly found that the compromise Agreement was unenforceable.

Does this mean that the lender, who paid out the loan capital, is simply out of luck?

Not necessarily.  The Court pointed out that a Credit Provider under an invalid Credit Agreement could claim his loan capital back based on an enrichment claim (it would not be possible under an enrichment claim, however, to claim the interest that would have accrued if the Loan Agreement were valid).

The Court also pointed out that a compromise Agreement may be valid and enforceable where, in terms of the Agreement, the parties expressly acknowledge that the earlier agreement is invalid, and the terms of the compromise are based on an enrichment claim.

Conclusion:

Where parties enter into a Loan Agreement which turns out to be invalid, they cannot remedy the situation by entering into a compromise Agreement which merely seeks to enforce the invalid Loan Agreement. The terms of their compromise will need to be based on an enrichment claim.

The post When parties have reached a compromise, based on an unlawful credit agreement, can that compromise be enforced? appeared first on RW Attorneys.

For persons pursuing an Application for their Admission and Enrolment as a Legal Practitioner, a base level requirement in such pursuit is to satisfy the Court that he or she is a South African citizen or permanent resident in the Republic. This is required in terms of Section 24(2)(b) of the Legal Practice Act (“the LPA”). The erstwhile Attorneys Act and Admission of Advocates Act had the same requirement, which will still apply in the case of Section 115 of the LPA being invoked.

An Application was brought in the Free State Division of the High Court, seeking an order declaring Section 24(2) and Section 115 of the LPA unconstitutional and invalid (Rafoneke v Minister of Justice and Correctional Services and Others 2021 JDR 2476 (FB)). The issue was that non-citizens and non-permanent residents cannot be admitted and enrolled as Legal Practitioners and are therefore unfairly discriminated against. On 16 September 2021, the High Court declared the provisions of Section 24(2) unconstitutional and invalid, but only to the extent that they do not allow foreigners in South Africa to be admitted and enrolled as non-practising Legal Practitioners.

The Applicants, unsatisfied with the limited nature of the Declaration of the High Court, brought an Application for Leave to Appeal to the Constitutional Court. The Application was opposed by the Minister of Justice and Correctional Services and the South African Legal Practice Council, who both submitted that the High Court erred in finding that Section 24(2) of the LPA is unconstitutional and invalid to any extent.

The Constitutional Court’s enquiry entailed first determining whether there is differentiation between people or categories of people and, if so, whether the differentiation bears a rational connection to its stated purposes. In this instance, the answer to the former was common cause and in the affirmative. There is clear differentiation between persons. However, the Court held that there is a proper basis to distinguish the position of permanent residents and other categories of residents. Section 22 of the Constitution provides that only citizens embody the right to choose their trade, occupation or profession freely. The legislature, in drafting the LPA, had therefore gone further than what is required in terms of Section 22 by allowing permanent residents to be admitted as Legal Practitioners. The rationale for accepting permanent residents is that they have been granted a right to live and work in the country on a permanent basis, subject to the country’s immigration laws. The same could not be said for non-citizens who are refugees, or who are on study or work visas. Therefore, the line drawn in the LPA is permissible and serves a legitimate Government purpose.

Having found that there is a legitimate Government purpose served by the policy, the final steps of the enquiry entailed determining whether the differentiation amounts to discrimination and, if so, whether such discrimination is unfair. The Constitutional Court proceeded on the assumption that the differentiation does amount to discrimination, without making a finding in this regard. In determining whether it was unfair, the Court held that the restriction for purposes of admission does not operate as a blanket ban to entry into the legal profession i.e. employability is not curtailed in different capacities that do not require admission as a Legal Practitioner. The activity which the applicants sought constitutional protection for is the enjoyment to choose one’s vocation. As already discussed, the Constitutional Court found that this right does not fall within a sphere of activity protected by a constitutional right available to foreign nationals such as the Applicants. As such the Court held that the differentiation cannot be held to amount to unfair discrimination.

The Constitutional Court did not confirm the High Court’s declaration of constitutional invalidity and dismissed the Application for Leave to Appeal.

The post Is it unconstitutional to exclude foreigners who are not permanent residents from admission and enrolment as Legal Practitioners in South Africa? appeared first on RW Attorneys.

What is Mediation?

In a mediation procedure, a neutral intermediary, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. Any settlement is recorded in an enforceable contract (The settlement agreement, drafted by the mediator). A party to a mediation cannot be forced to accept an outcome that it does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator’s role is, rather, to assist the parties in reaching a settlement of the dispute.

In a mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot, be provided to anyone – including in subsequent court litigation or arbitration – outside the context of the mediation. The existence and outcome of the mediation is also confidential. Mediation’s confidentiality allows the parties to negotiate more freely and productively, without fear of publicity.

In court litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In mediation, the parties can also be guided by their business interests. As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship as to their past conduct. When the parties refer to their interests and engage in dialogue, mediation often results in a settlement that creates more value than would have been created if the underlying dispute had not occurred. Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits.

What is Arbitration?

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding and enforceable decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. Arbitration can only take place if both parties have agreed to it or if arbitration has been built into a commercial agreement as the default dispute resolution method. In the case of future disputes arising under a contract, the parties insert an arbitration clause in the relevant contract. An existing dispute can be referred to arbitration by means of a submission agreement between the parties. In contrast to mediation, a party cannot unilaterally withdraw from arbitration.

Under most Arbitration Rules/Laws, the parties can select a sole arbitrator together. If they choose to have a three-member arbitral tribunal, each party appoints one of the arbitrators; those two persons then agree on the presiding arbitrator. Alternatively, we can then appoint the relevant experts from our panel of arbitrators. In addition to their selection of neutrals of appropriate nationality/expertise/experience, parties can choose such important elements as the applicable law, language and venue of the arbitration. This allows them to ensure that no party enjoys a home court advantage. The arbitrator/arbitration tribunal’s decision is binding and easy to enforce, the parties agree to carry out the decision of the arbitral tribunal without delay.

The post The difference between Mediation and Arbitration appeared first on RW Attorneys.