Talking Point March 2018


A succinct discussion of selected topical, legal matters

Dear Friends and Colleagues

I take great pleasure in submitting the March 2018 edition of Talking Point to you.  This edition is also on our website at http://walkers.co.za/.

William Blackstone (1723 –1780) was an English jurist.  He struggled in private practice, and gave it up to become a roving lecturer on English law.  He had spotted a gap in the market, and the lectures were financially and reputation-wise very successful.  The same applied to his subsequent legal text book, and he was appointed to a prestigious Oxford professorship in English Law.

His treatise on the common law of England, Commentaries on the Laws of England, was originally published in four volumes in the late 1860s.  It was republished many times, up to the late 1940s; and is perhaps the most influential of all English Law publications.  The Commentaries are still regularly referred to in Courts in the English speaking countries, including recently in our Constitutional Court.

His most famous quote is known as Blackstone’s ratio:

It is better that ten guilty persons escape than one innocent person suffer.”

Some of his views may be considered dated by today’s standards, but decide for yourself:

So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.”

The public good is in nothing more essentially interested, than in the protection of every individual’s private rights.”

[Self-defence is] justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the laws of society.

More quotes from William Blackstone

In this issue:

Auditors at it again

We discuss a Canadian case with certain elements perhaps similar to a matter currently very topical in South Africa.  “Garth Drabinsky and Myron Gottlieb built a North American theatre empire ….  Seeking ever more spectacular success, they resorted to manipulating the company’s financial records.  When the scheme came to light, [they] went to jail.

Marital strife and the workplace

We discuss a case involving a SARS employee and her spouse committing fraud, and the latter becoming the whistle-blower when marital strife and acrimony arose.

Good, old-fashioned insider trading

We discuss a Canadian case of which local investors in listed shares ought to take note.  The extended definition of an “insider” is broad; and if the source is reliable, it is probably inside information.

Hurry up and do not wait

What should the purchaser do if the seller of immovable property fails to effect transfer promptly?  We discuss a case that illustrates that simply sitting back idly is a bad idea.

Uber confusion

Are Uber drivers employees (with concomitant rights) or independent contractors?  There have been different answers to this question in different jurisdictions.  We discuss a local judgment relating to this question.

Does freedom of speech include the right to shut up?

The famous legal case in this issue is one of the most inspired cases in USA history; in which the Supreme Court overruled its previous opinion regarding children in public schools being obliged to salute the American Flag and to recite the Pledge of Allegiance.

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

Regards

Charl Theron

Chairman