January Talking Point


A succinct discussion of selected topical, legal matters

Dear Friends and Colleagues

I take great pleasure in submitting the January 2017 edition of Talking Point to you.  This edition and the previous two editions are also on our website at http://walkers.co.za/.  This is is the first edition for 2017.  Accordingly, I use this opportunity to wish you joy and peace throughout 2017.

Richard Posner (1939 –), an American jurist and economist, currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago, is also an academic, and a prolific author.  He is regarded as the most cited legal scholar of the 20th century.  However, due to his occasionally outrageous statements, he has not been elevated to the Supreme Court.  A book titled The Quotable Judge Posner and described as “a collection of pithy and penetrating observations and rulings by one of the most famous appellate judges in America” was published in 2010.

Some examples:

  • Fact is often stranger than fiction because most writers of fiction try to make their stories plausible.

  • The filing of an appeal should never be a conditioned reflex.  About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.

  • There would be fewer executions if the sentencing judge had to administer the lethal injection.

  • Much modern legislation involves targeting government largesse on politically influential groups and the burdens of government on politically impotent ones.  Not infrequently the legislation benefits a tiny handful of individuals or firms or even a single firm – the latter is especially common in tax legislation.”

  • Since thought, unlike sight and hearing, has no physical bounds, the state’s claim to regulate private behavior leaves no zone of protection for experiments in living; and it promotes a meddlesome, intolerant, censorious, and sectarian spirit.”

  • [C]lassical liberalism … can be summed up in seven words: ‘Your rights end where his nose begins.’  Government interference with adult consensual activities is unjustified unless it can be shown to be necessary for the protection of the liberty or property of other persons.”

  • Gilding the lily, the officer testified that he was additionally suspicious because when he drove by [the suspect] in his squad car before turning around and getting out and accosting him he noticed that [the suspect] was ‘star[ing] straight ahead’.  Had [the suspect] instead glanced around him, the officer would doubtless have testified that [he] seemed nervous …  Whether you stand still or move, drive above, below or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you.  Such subjective, promiscuous appeals to an ineffable intuition should not be credited.”

As always, I would greatly appreciate your feedback on Talking Point. Please email me at charlt@walkers.law.

Note that Walkers has changed the top-level domain of its email addresses to “.law“.  However, the top-level domain “.co.za” will also be delivered to the Walkers recipient.

Regards

Charl Theron

Chairman

In this issue:

  • Trouble with the Neighbours

    The conflict between a landowner’s right to build, and the neighbour’s right not to be adversely affected, is a perennial theme in the High Court, Cape Town. Under the relevant legislation, a municipality, when deciding an application for the approval of building plans, must be the guardian of the owners of the neighbouring properties. We discuss a recent case evaluating the performance of the City of Cape of Town.

  • Tax puppeteering is out of fashion

    For obvious reasons, many a tax structure, usually relying on a double taxation agreement, is designed to avoid being tax resident in a harsh tax jurisdiction (such as South Africa or Australia). We report on a recent Australian tax structure that was “too good to be true”.

  • Grounds for being fired

    Employees overstating expenses, and submitting false quotations, are as old as the hills. We discuss a recent case on whether such conduct warrants dismissal, despite long service and a clean disciplinary record.

  • Nuclear power generates litigation

    The government’s controversial procurement strategy for the additional nuclear programme is currently the subject of litigation in the High Court, Cape Town. More litigation in such regard is under consideration. We report on a recent judgment concerning Koeberg nuclear power station.

  • An “agreement to agree” is not a contract

    Whilst an “agreement to agree” can be enforceable if correctly drafted, an ‘informal’ agreement to agree may create moral obligations, but cannot be enforced by legal proceedings.

  • Solicitors from Hell

    The Protection of Personal Information Act (POPI) has been law since 2013, but is at present not fully operative. We discuss a UK case involving an unhappy client and the legal profession.

  • A Cry in the Dark

    The famous legal case in this issue is the story of who/what killed Baby Azaria – the “dingo case”. Meryl Streep was nominated for an Oscar for her role in the 1988 film, which made this the internationally best known Australian criminal case. The case also illustrates why, in South Africa, the jury system should not be reintroduced.