Attorneys and Matters relating to Rules of Court Amendment Act

2 DESEMBER 1998 No. 19536 OFFICE OF THE PRESIDENT KANTOOR VAN DIE PRESIDENT No. 1550. It is hereby notified following Act which information:-

2 December 1998 No. 1550.

2 Desember 1998 that the President has assented is hereby published to the for general Hierby word bekend gemaak dat die President keuring geheg het aan die onderstaande Wet wat hierby algemene inligting gepubliseer word:- sy goed- ter No. 115 of 1998: Attorneys relating and Matters Court Amendment Act, 1998. to Rules of No. 115 van 1998: Wysigingswet op Prokureurs en Aange- leenthede rakende Hofretils, 1998. 2 No. 19536 GOVERNMENT GAZETTE, 2 DECEMBER 1998 Act No. 115,1998 ATTORNEYS AND MATTERS RELATING TO RULES OF COURT AMENDMENT ACT, 1998 GENERAL EXPLANATORY NOTE: Words underlined with a solid existing enactments. line indicate insertions in ACT in the areas of the former Republics of Bophuthatswana To amend the Attorneys Act, 1979, so as to limit liability of the Attorneys Fidelity to liability of the Attorneys Fidelity Fund; to insert transitional provisions relating of the Attorneys Fidelity Fund to Fund for investments; to extend the jurisdi&on practitioners and Venda; the filling of a vacancy on the council of a society; and to to further regulate to exercise certain powers in respect of empower practitioners practising and Venda; to amend certain Rules of the High Court Bophuthatswana, therewith. fresh provision with regard to the of Transkei, connected in the areas of the former Republics of Bophuthatswana in the areas of the former Republics the Law Society of the Wansvaal Venda and Ciskei; laws; to make for matters to provide and (English text signed by the President.) to 20 November 1998.) (Assented B E IT ENACTED follows:- by the Parliament of the Republic of South Africa, as Amendment of section 47 of Act 53 of 1979

1. Section 47 of the Attorneys Act, 1979 (hereinafter referred to as the principal Act), is hereby amended- 5 (a) by the addition to subsection (1) of the following paragraph: .‘ &) by any person as a result of theft of mc%y which a practitioner has to invest on behalf of such person after the date of of this paragraph.“; been instructed commencement and (3) of the following subsections: 10 (b) by the addition after subsection “(4) Subject to subsection (5), a practitioner must be regarded as to invest money for the purposes of subsection 1 having been instructed (I)(g), where a person- (a) who entrusts money (b) instructs the practitioner investment or in an investment for whom the practitioner regarded as not having been instructed by a person- (a) to the practitioner; or holds money, to invest all or some of that money in a specified of the practitioner’s choice. (5) For the purposes of subsection instructed (l)(g), to invest money a practitioner must be if he or she is to pay the money into an account contemplated is for the purpose of investing such payment account or conclusion or implementation tion which is already in section 78(2A) if in such such money the basis only pending of any particular matter or transac- in existence or about to come into existence at temporary interim on a 20 25 4 No. 19536 GOVERNMENT GAZETTE. 2 DECEMBER 1998 Act No. 115,1!W3 ATTORNEYS AND MATTERS RELATING TO RULES OF COURT AMENDMENT ACT, 1998 (b) (c) exercises exclusive the time that the investment practitioner holder or in any fiduciary capacity; to lend money on behalf of that person agreement where that person, being the lender- to whom the money the borrower (i) specifies (ii) has not been introduced is made and over which investment : the control as trustee, agent or stake to give effect lo a loar 1 to the borrower by the practitioner fol is to be lent; (iii) the purpose of making that loan; and is advised by the practitioner conditions of the loan agreement; or in respect of the terms an( to give effect to any term of a transaction to whict to utilise money that person which gives effect to a loan agreement scope of paragraph (6). is a party, other than a transaction which is a loan 01 that does not fall within the (6) Subsection (I j(g) does not apply to money which a practitioner i: acts in his or her capacity ar authorised executor, to invest where the practitioner trustee or curator or in any similar capacity. instructed (4) shall, as soon as practicable (7) A practitioner who has been in subsection as contemplated after he OI she has received such instruction but prior to the receipt of the money tc be invested, notify the person giving the instruction of the provisions of subsection in the form and manner prescribed by the board of control to invest money (I)(g) (8). in terms of subsection (8) For the purposes of subsection (7), the board of control shall issue in which a notice referred to shall be given and may from time to time review and, the form and manner directives prescribing in that subsection if necessary, revise such directives. contemplated in subsection (9) Pending the issuing of the directives (8). a notice referred to in subsection (n) be drawn up by the practitioner; (6) be signed by both the practitioner (7) shall- and the person giving the (c) and instruction; contain a written acknowledgment he or she- by such person to the effect that (i) has been informed by provisions of subsection the effect thereof; and the practitioner (l)(g) and that he or she understands concerned of the (ii) admits that the fund shall not be liable in respect of any loss suffered by him or her as a result of theft of such money. (10) Any practitioner who contravenes subsection an offence and on conviction be liable to a fine or to imprisonment period not exceeding two years.“. (7) shall be guilty of for a 5 10 15 !O !5 10 5 .O Insertion of section 47A in Act 53 of 1979

2. The following section is hereby inserted after section 47 of the principal Act: “Transitional provisions relating to liability of fund for investments 45 fund

47A. The is not committed by a practitioner, practitioner where the money instructions where- (a) given before liable theft loss of money for candidate attorney, employee or agent of a is invested or should have been invested on and in section 47(l)(g) caused by the date contemplated the money is to be repaid, at any time after that date, to the beneficiary specified in any agreement whether with the borrower or practitioner; the theft is committed at any time after the expiration of 90 days after (6) 6 No.19536 GOVERNMENT GAZETTE. 2 DECEMBER 1998 ActNo.115,1998 AITORNEYSANDMAII-ERS RELATINGTORULESOFCOURT AMENDMENTACT. in section 47(l)(g); the investment matures or after the expiration of 90 days after the date contemplated repayment occurrence of an impossible or uncertain event; or the repayment date is not fixed.“. is subject to the lender making a demand or is subject to the (c) (d) Substitution of section 55 of Act 53 of 1979, as substituted by section 1 of Act 116 of 1981 and amended by section 22 of Act 87 of 1989

3. The following section is hereby substituted for section 55 of the principal Act: “Application professions Venda or Ciskei of Chapter in respect of persons exercising legal in area of former Republic of Transkei, Bophuthatswana, 55. (1) For the purposes of this Chapter- (u) includes ‘practising practitioner’ profession in- (i) the former Republic of Transkei or Ciskei; or (ii) the former Republic of Bophuthatswana on his or her own account or in partnership, and- or Venda, any person who exercises a legal (au) who is required by a law of the former Republic of Transkei or Ciskei, or by section 6( 1) of the Attorneys and Matters relating to Rules of Court Amendment Act, 1998, as the case may be, as a prerequisite in possession of a valid fidelity fund certificate issued to him or her in terms of section 42(3); such profession, for exercising to be (bb) who is in possession of such a certificate; and (b) to- a person referred in paragraph (u)(i) must be regarded as being a practitioner who (i) is a member of the society known as the Law Society of the Cape of Good Hope; in paragraph (a)(ii) must be regarded as being a practitioner who is a member of the society known as the Law Society of the Transvaal. (ii) theft committed (2) This Chapter shall apply with the necessary changes in the area of the former Republic in respect of any of Transkei, Bophuthatswana, Venda or Ciskei, as the case may be, by a practising practitioner, his or her candidate attorney, employee or agent, of any money or other property referred to in section 26.“. Amendment of section 62 of Act 53 of 1979

4. Section 62 of the principal Act is hereby amended by the addition in subsection (2) of the following paragraph, the existing subsection becoming paragraph in any council “lb)-Any vacancy occur&g as a result of the increase in the number of members of such a council, may be filled by a person appointed by that council from the members of the society concerned aid such a person shall hold office until the completion of the next election of members of the person concerned.“. of the council held subsequent to the appointment (a): Insertion of section 84A in Act 53 of 1979

5. The following section is hereby inserted in the principal Act after section 84: “Law Society of Transvaal may exercise certain powers of practitioners Bophuthatswana practising and Venda areas of in former Republics in respect of

84A. Notwithstanding any other law, the Law Society of the Transvaal in respect of practitioners and secretary, may and its council, president practising Venda, perform any function which is similar in the areas of the former Republics of Bophuthatswana to a function assigned and to that 5 10 15 20 25 30 35 40 45 50 8 No. 19536 GOVERNMENT GAZETTE, 2 DECEMBER 1998 Act No. 115,1998 ATTORNEYS AND MATTERS RELATING TO RULES OF COURT AMENDMENT ACT, 1998 Law Society, council, president or secretary, as the case may be, by section 22(l)(d) or (e), (2), 67(2), 69(a), fe) or (ml, 70, 7 I, 72,73,74( 1 )(a), fe) and If), 78, 8 I(1 )(e) and cf), (2)(a), (d), (e), (i) or (j), (5) or 83(9), (13) or (15)“. Savings and amendment of certain provisions 6. (l)Any practising practitioner contemplated who, at the commencement must, within 21 days after that date and subject Transvaal in section 55(a)(ii) of the principal Act of this Act, is not in possession of a fidelity fund certificate to the rules of the Law Society of the relating (2) Notwithstanding to the issue of a fidelity fund certificate, apply for such a certificate. section 55 of the principal Act, as amended by section 3 of this in respect of any practising referred to in section 55(a)(ii) of the principal Act, for any theft committed fund (I) and issued in terms of section 42(3) of the Act, the Attorneys Fidelity Fund does not incur any liability, practitioner prior certificate as contemplated principal Act. to the day upon which he or she becomes the holder of a valid fidelity in subsection (3) Notwithstanding any other law, section 83( 10) of the principal Act applies to any (1) after 60 days have practising practitioner who fails to comply with subsection elapsed from the date on which this Act takes effect. 5 10 15 (4) The laws mentioned in the second column of the Schedule are amended to the extent indicated in the third column thereof. (5) Rules of court made under any provision amended by this Act which were in force 20 immediately before the commencement Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), and notwithstanding the amendment terms of the Rules Board for Courts of Law Act. 1985. of this Act, shall, subject to the provisions of the of that provision by subsection in force until repealed (4). remain Short title and commencement

7. This is the Attorneys and Matters relating to Rules of Court Amendment Act, 1998, which takes effect on a date fixed by the President by proclamation in the Gazette. in 25 10 No. 19536 GOVERNMENT GAZETTE.

2 DECEMBER 1998 Act No. 115,1%‘8 AITORNEYS AND MATTERS RELATING ACT. AMENDMENT TO RULES OF COURT I998 SCHEDULE (Laws amended by section 6(4)) No. and vear of law Short title Extent of amendment Act No. 59 of 1959 Supreme Court Act, Amendment of section 43 by the deletion of (Venda) I959 subsections (I). (2)(a) and (3). Act No. IS of 1976 Republic of Transkei The following section is substinned for section 49: (Transkei) Constitution Act, 1976 “Rules of court 49. (I) Subject lo the provisions of subsection (2) the [Chief Justice] Judge President may make rules regulating the conduct of proceedings in the [Supreme Court] High Court and prescribing any matter whatsoever which [it] is necessary to prescribe in order 10 ensure the proper despatch and conduct of the business of the court [jncluding rules prescribing court fees, the fees payable for the service or execu- tion of process and the fees chargeable by advocates, attorneys and notaries as well as rules relating to the taxation of bilLF of costs and the recovery of costs]. (2) Any rules made by the [Chief Justice] Judge President under subsection (I) shall be [subject to the approval of the President and any rules so approved shall be] made known by notice in the Gorerre. (3) The rules which immediately prior to the commencement of this Act applied in respect of the High Court referred 10 in seclion 44(3) shall. norwithstanding the provisions of section 74(I), apply muroris mufandis in respecr of [he [Su- preme Court] High COW of Transkei and shall he deemed 10 have been duly made, approved and published in Ierms of this section.“. Act No. 18 of 1977 .epublic of \mendment of section 64 by rhe substiturion for :Bophurharswana) ophutharswana ubsection (I) of the following subsection: ‘onstirution Act. 1977 “(I) Subject to any contrary provision existing in any other law, the [Chief Justice] Judge Presi- dent may make rules regulating the conduct of - proceedings in the [Supreme Court] High Court and prescribing matters which may be necessary to prescribe in order IO ensure the proper dis- patch and conduct of the business of that Court, and may amend. subslirute or withdraw any rule so made.“. 12 No. 19536 GOVERNMENT GAZETTE.

2 DECEMBER 1998 Act No. 115,1998 ATTORNEYS AND MATTERS RELATING TO RULES OF COURT AMENDMENT ACT 1998 No. and year of law Short title Extenl of amendment ACI No. 9 of 1979 Republic of Venda The following section is substituted for section 47: (Venda) Constitution Act, 1979 “Rules of court 47. (I) Subject IO the provisions of subsection (2) the [Chief Justice] Judge President may make rule> regulating the conduct of pro&edingr in the [Supreme Court] High Court and pre- scribing any matter whatsoever which is neces- sary to prescribe in order to ensure the proper despatch and conduct of the business of the couri [jncluding rules prescribing court fees, the fees payable for the service or execution of process and the fees chargeable by advocates, attorneys and notaries as well as rules relating to the taxation of bills of costs and the recov- ery of costs]. (2) Any rules made by the [Chief Justice] Judge President under subsection (I) shall be [subject to the approval of lhe President and any rules so approved shall be] made known by notice in the Gazerfe. (3) The rules which immediately prior to the commencement of this Constitution applied in respect of the High Court referred to in section 42(3) shall, notwithstanding the provisions of section 75(l), apply muraris murandis in respect of the [Supreme Court] High Court of Venda and shall be deemed to have been duly made, approved and published in terms of this sec- tion.“. 4c1 No. 32 of 1982 upreme Court of .mendment of section 27- :Bophuthatswana) ophuthatswana Act. I) by the substitution in subsection (I) for the 982 words preceding paragraph (0) of the following words: “Wkhout in any way derogating from the authority of the [Chief Justice] Judge Presi- *. in terms of the provisions of section 64 of the Constitution Act, to make rules of court, or from the generality of the said pro- visions, such rules may prescribe-“; and 1) by the substitution for subsection (3) of the following subsection: “(3) Any rules of court of force immedi- ately prior to the commencement of this Act under any law repealed by section 28(I) shall. subject to the provisions of this Act, and notwithstanding such repeal, remain of full force and effect until amended, substi- tuted or repealed under this section orany other law.“. 14 No. 19536 GOVERNMENT GAZETTE, 2 DECEMBER 1998 Act No. 115,1998 ATTORNEYS AND MATTERS RELATING TO RULES OF COURT AMENDMENT ACT, 1998 No. and year of law Short title Extent of amendment Act No. 29 of 1984 Attorneys, Notaries and By the deletion of Chapter II. (Bophuthatswana) Conveyancers Act, 1984 Act No. 42 of I987 Attorneys Act. 1987 By the deletion of Chaprer II. (Venda) Decree No. 43 of 1990 Supreme Court Decree, The following section is substituted for section 37: (Ciskei) 1990 “Rules of Court 37. (1) Subject to the provisions of subsection (2) the [Chief Justice] Judge President may make rules regulating the conduct of proceedings of the divisions of the [Supreme Court] H&&I Court of Ciskei and prescribing any matter what- soever which [it] is necessary lo prescribe in order to ensure the proper despatch and conduct of business of such courts [,including rules pre- scribing court fees, Ihe fees payable for the service or execution of process and the fees chargeable by advocates, attorneys and nota- ries, as well as rules relating to the taxation of bills of costs and recovery of the costs]. (2) Any rules made by the [Chief Justice] Judge President under subsection (1) shall be made known by notice in the Gazeffe. (3) Any rules of court made under any law repealed by section 39 and in force immediately prior to the commencement of this Decree shall. notwithstanding such repeal, remain of full force and effect until amended, substituted or with- drawn in terms of this section or any other law.“. Act No. 18 of 1996 Justice Laws Amendment of section I1 by the deletion of sub- Rationalisation Act. section (2). 1996