7 reasons to avoid the trap of the free or bargain-basement will (or: How is a professionally drawn will like car insurance?)

 

Car insurance is a grudge purchase. So much so that a leading insurer is offering cash incentives to prospective clients, simply to get them on the phone long enough to sign them up. But if you are a careful, reasonably lucky driver, you may pay premiums year after year and never make a claim.

Along comes Penny Wise Pound Foolish Car Insurance (“Penny Wise”). They guarantee the lowest premiums or a free holiday to Disney World. Naturally, you are on the line to their call centre in minutes – and discover to your great joy that you can save R1000,00 a month in premiums! It’s a no brainer. Each month, you admire the teeny premium on your bank statement, and pity those poor suckers still insured by No Corners Cut Car Insurance (“No Corners”).

And then the worst happens. You are in your first-ever car wreck. Thankfully no one is hurt, but your beloved car is a write-off. To replace it would cost R100 000,00. Penny Wise informs you that your excess is R25 000,00, and that your car was insured for a total value of R50 000,00. It’s time to dust the cobwebs off your bicycle. Or prepare to take on a mountain of debt to replace your fully paid-up car.

So what does car insurance have to do with wills?

Legal fees, like insurance, are a grudge purchase. No one gets a bonus at work and enthuses: “It’s finally time to draft the co-habitation agreement of my dreams!” No one writes on their wedding invitation: “Instead of gifts, please consider a donation to our fund to finally sue that dodgy contractor that left us with an uneven, potholed driveway!”

Legal fees, like insurance, are an area where one can be “penny wise and pound foolish”. Especially in the area of wills. Why see a lawyer to prepare your will when your bank is offering to do it for free? Or you can pick up a fill-in-the-gaps version at PNA?

I visited a prominent bank’s website this morning. The website suggests that legal advice is a “nice to have” when drawing your will – only really necessary when you want to put “lots of special conditions” in your will. The website concedes that a will drafted by a lawyer is unlikely to be open to interpretation and so end up in legal disputes. That’s a pretty big advantage, I would say. If you want to put in “lots of special conditions”, the website concedes that professional advice would be worthwhile, and hyperlinks to a terrifyingly pared-down website that promises you a downloadable will for R350,00 in six easy steps (the first of which is “sign up” and the last of which is “print” – so actually four steps).

As an attorney with 16 years’ experience, I charge R1500,00 for a will. On the face of it, a bank customer who uses the web-based service is saving R1150,00. However, a client who sees me for their will gets a lot more than 4 answers plugged into a template:

  1. There are a wealth of different options available to testators to achieve exactly what they want with their estate. The best option in each case depends on the testator, the size of their estate, the nature of their assets, and even the personalities of their heirs. Is your youngest son terrible with money and in need of a trustee to look after his financial interests? Is your eldest daughter a home owner who would benefit more from a cash bequest than from inheriting a third of your house? Will it mean a lot to Aunt Mildred that she gets Granny’s emerald ring even though you are leaving the rest of your jewellery to your cousins? Come drink a cup of coffee with me and tell me about your family. There is no algorithm for that.
  2. Lawyers are trained to ask “what if” – and to confront head-on the worst case scenarios that most of us like to avoid thinking about. This is where things can go badly wrong. When I consult with a client for a will, I try to look around all the corners, and provide for every eventuality. You cannot assume that life will unfold as you expect it to, and there is tremendous benefit to being led to apply your mind to the unexpected, and covering all the bases.
  3. Once we have selected the options that make the best sense for you and your heirs, I will ensure that your wishes are put to paper in unambiguous terms. Your executor will know exactly what you meant. Your heirs will understand what they are getting. The aim is to enable an easy process to wind up your estate, and not leave confusion and conflict in the wake of your passing.
  4. You don’t have to use your own paper to print my wills. Seriously, I will print it for you (not on R1000 paper, but still.) I will supply a sturdy cover to store the will in. I will help you sign the will in accordance with all legal formalities. You do NOT want to sign a will incorrectly and have it rejected by the Master when your heirs try to wind up your estate. If that happens, your heirs must apply to the High Court to have your will accepted, and your initial saving of R1150,00 from Penny Wise Wills Ltd will fade into insignificance when those fees start rolling in.
  5. Once your will has been signed, our relationship continues. I will register your will online so that it can be easily located when needed. I will store the original will for you, should you so choose. I will make contact with you each year to ask: how has your life changed since we met, and does your will need to change to keep up with it?
  6. In my view, banks do not offer free wills to benefit their customers. They offer free wills to snag lucrative executors’ fees when their customers pass away. Should your estate be deemed small potatoes, the bank will drop it like a hot potato and your heirs will need to get the Master to appoint another executor in their place. Should it be sufficiently large, a bank official who probably never met you will wind up the estate and charge the maximum allowable fee (3,5% of asset value) for doing so. I recommend to my clients that they appoint their major heir as the executor, unless there is good reason not to do so. The heir can then approach an attorney of their choice for assistance in winding up the estate. That may be me. It may be their own attorney. Some clients prefer to appoint me as their executor, as they trust me to treat their heirs with care. We have a relationship, and winding up a client’s estate is generally the last service I can offer them. My fees for winding up an estate are negotiable, and unlikely to be the maximum fee unless the estate is very small in value and the work still considerable.
  7. And the website offering a four-step will for R350,00? Whoever owns it has a great passive income business and may be getting quite rich. I hope they have had a professional draw up their will. Ha.

 

 

Exiting the exit agreement: a departing employee’s claims of coercion and duress

It happens with some regularity that an employee refers a dismissal dispute to the CCMA, and the employer arrives at the hearing bearing a termination agreement with the employee’s signature. In it, the employee agrees to resign from employment, often in return for some benefit such as an extra month or two’s pay, or the privilege of leaving honourably rather than being dismissed and incurring a disciplinary record for serious misconduct. The employee will usually concede that they signed the agreement, but argue that they were bullied into it. The CCMA commissioner will advise them that the agreement is binding until set aside by the Labour Court on solid grounds, such as duress, and close their file.

In the recent matter of Gbenga-Oluwatoye versus Reckitt Benckiser SA, an employee went as far as approaching the Labour Court and, thereafter, the Labour Appeal Court, in his quest to get out of a termination agreement he admitted signing with the employer.

The employee was approached by a headhunter while employed in a lucrative position with a large multinational. He later left his lucrative position, but actively concealed this from the headhunter, negotiating a generous sign-on bonus on the false basis that he was losing a handsome shareholding by leaving the large multinational to join the employer. In short, he deceived and defrauded the new employer.

Some months into his employment with the new employer, the employee’s misconduct came to light. He was suspended pending a disciplinary hearing,  and then summarily dismissed. On receipt of his termination letter, the employee approached the employer requesting a “softer exit”. He offered to repay the money over time, in exchange for the employer delaying action to revoke his work permit and housing allowance. The employer agreed, and the employer expressed his gratitude for the humanity shown him.

A termination agreement was then drawn up in draft form. The employee was unwilling to sign the first draft, but agreed to sign a second draft. The agreement recorded that it was in full and final settlement of any claims between the parties, and that it was entered into voluntarily without any coercion or pressure. The employee agreed, in the agreement, that he waived any right to approach the CCMA and Labour Court arising in any way from his employment and the termination agreement.

A week later, however, the employee brought an urgent application to the Labour Court, for an order setting aside the termination agreement and reinstating him into his employment. He argued that the agreement was against public policy and that he had been coerced into signing it through fear of losing his work permit and housing and other allowances.

The Labour Court was unsympathetic. It had regard to the fact that the employer had a legal entitlement to dismiss the employee summarily on account of his serious misconduct, and also the fact that the agreement had been further negotiated after the employee had been dissatisfied with the first draft. There were no facts to indicate that he signed the agreement only as a result of duress by the employer.

The employee was unrelenting, and took the matter further to the Labour Appeal Court, on appeal.

The Labour Appeal Court pointed out that, in order to get out of an agreement on the basis of duress, intimidation or improper pressure had to be proven of such magnitude that the purported consent of the signatory was no true consent. There had to be actual violence or a fear caused by the threat of a considerable evil. The threat had to be unlawful or against the morals of the community.

Although the Court did not point this out, it goes without saying that the loss of a work permit and of allowances due to termination of employment by resignation or by summary dismissal for gross misconduct, are lawful and reasonable consequences. They cannot be construed to be unlawful or against the morals of the community.

The Court did point out that, while everyone has the constitutional right to seek redress through the courts, this right could be limited in reasonable circumstances. Parties were free to limit this right in their free contractual dealings. The Court found that the employee was an experienced, senior managerial employee, who would understand the import of what he was agreeing to. Clauses limiting the right of redress were standard in termination agreements, and of practical value.

Finally, the Court point out that it had no power to set aside agreements simply because they appeared to be unfair.

The Court accordingly upheld the termination agreement, and dismissed the employee’s application with costs.

Caveat subscriptor – “signer, beware!” – is a well-worn legal maxim for good reason. All parties should be slow to sign any agreement unless they are completely satisfied with the terms, and should be aware that by signing an agreement they trigger important legal consequences which cannot be easily evaded. In the absence of compelling evidence of significant unlawful pressure, a party who foolishly signs an unfair or prejudicial agreement, will be held to its terms.

 

 

 

A paper shield? The email and social media disclaimer

“On this date, in response to the new guidelines of Facebook, pursuant to articles L.111, 112 and 113 of the code of intellectual property, I declare that my rights are attached to all my personal data drawings, paintings, photos, video, texts etc. published on my profile and my page. For commercial use of the foregoing my written consent is required at all times. The content of my profile contains private information. The violation of my privacy is punishable by law (UCC 1-308 1-308 1-103 and the Rome Statute)…”

What a feeling of empowerment, that small post on social media that instantly and indefinitely protects your rights from the predatory acts of big corporations! Except that it doesn’t. As pointed out by legendary internet myth-buster snopes.com, “Before you can use Facebook, you must indicate your acceptance of that social network’s legal terms, which includes its privacy policy and its terms and policies. You can neither alter your acceptance of that agreement nor restrict the rights of entities who are not parties to that agreement simply by posting a notice to your Facebook account.”

It is not only social media users who issue unilateral disclaimers, however. Receive an email from a large company or law firm, and in many cases the final words will be along the lines of “The information contained in this transmission is confidential and is intended solely for the nominated addressee. The information is private in nature and is subject to legal privilege. If you are not the intended recipient, you may not peruse, use or disseminate this transmission or any file attached thereto. Such actions are prohibited and may be unlawful. If you have received this transmission in error, please notify us immediately and delete same and all copies from your system.” Heavy stuff, but how enforceable is it, really?

In her recent feature in the attorneys’ journal, De Rebus (available in full at http://www.derebus.org.za/reading-the-small-print-are-e-mail-disclaimers-really-important), local attorney Jesicca Rajpal cited a US domestic violence case in which a man emailed his estranged wife, amongst other things, that “pay-back is really a b****… you and your others still have a gigantic debt to pay to me, which will be paid no matter what. I spend every second of every day contemplating an appropriate method of payment… Your most determined, unstoppable, and visceral enemy”. The email ended with a disclaimer: “Not one word herein should be construed by anyone as meaning violent or threatening intentions, and instead the entire contents is to be taken by the strict literary meaning. There have not been, and will be any elucidated threats of violence or intent, either expressed or implied, within the entirety of this document.”

The above disclaimer seems ludicrous and did not eventually protect the sender from the censure of the courts. But is it any more or less meaningful than any of the fancier disclaimers added to commercial and legal emails every day, with the intention of protecting parties’ critical legal and financial information?

Rajpal points out the weaknesses of the disclaimers so many of us use without a thought:

  1. We use them indiscriminately – not only when their use is appropriate but also when clearly non-confidential and trivial communications are sent.
  2. The disclaimer can be completely contradicted by the content of the email itself.
  3. There is no guarantee that the recipient will see or read the disclaimer.
  4. The disclaimer is usually only read after the confidential information, if at all.
  5. The sender cannot control the recipient’s response to the disclaimer.
  6. Most importantly, the disclaimer is issued unilaterally, without the recipient’s agreement to its terms. You cannot unilaterally impose obligations on another person. A disclaimer is not a contract and does not have the effect of binding another person without their consent.

Rajpal concludes her article with advice gleaned from the Minnesota Law Review. Do not place confidentiality disclaimers at the foot of your email – by the time a recipient sees it (if at all) they will have read the confidential information. Place them at the top of your email, if you must. If a communication is privileged, this can be marked in the subject line to bring it to the attention of a recipient even before they click on a message and see its content. For further protection, confidential information can be placed in an attachment and the email body can consist only of a disclaimer.

Even if the above advice is heeded, however, the sender cannot prevent an unintended recipient from ignoring the warnings in the subject line and email body, and accessing information the sender had hoped to keep confidential, without there being some sort of encryption in place. Mere disclaimers rely upon the attentiveness, goodwill and co-operation of an unintended recipient. Where confidentiality is critical, password protection is a better option, although also not fail-safe.

 

A R10 million oversight – the consequences of inadequate disclosure to an insurer

In the recently decided Supreme Court of Appeal case of Regent Insurance Company versus King’s Property Development, the court considered what was a material non-disclosure which would entitle an insurer to reject a claim on insurance.

In the case, King’s Property, the owner of a commercial building, insured the building against fire and other possible losses. Regent Insurance provided the insurance cover. The building burnt to the ground in 2010, and King’s duly lodged an insurance claim for approximately R10 million. Regent rejected the claim.

Regent stated that the building was let by King’s to a business which manufactured trailers using fibreglass and resin, both highly flammable materials. It had not been informed of this fact, and would not have agreed to insure the building had it been so informed. It alleged that it was not liable under the insurance policy as King’s had committed a material non-disclosure.

The fire had indeed arisen from a manufacturing process within the building, done by the tenant’s staff.

King’s approached the High Court for an order compelling Regent to pay out. The High Court was sympathetic. It noted that, when King’s took out the insurance policy, its broker had requested that Regent do an urgent survey of the property, which Regent apparently agreed to do but did not do. King’s was unaware that the survey was not done, and paid the premiums in the belief that the building was properly covered by the insurance policy. Under the doctrine of estoppel, so the High Court held, the insurer could not now reject the claim, as it had misled the insured into believing that the premises had been surveyed and the insurance was valid. The High Court ordered the insurer to pay out the R10 million.

Regent took the matter on appeal to the Supreme Court of Appeal, relying pertinently upon the non-disclosure by King’s that the premises were let to a business manufacturing goods with fibreglass and resin. King’s had disclosed that the property consisted of a warehouse and offices and, so they argued, the insurer should have realised that a warehouse could involve manufacture utilising flammable goods. By failing to undertake a survey as agreed, King’s argued, it was Regent’s own fault that it did not establish the extent of the risk, and by nevertheless accepting premiums in those circumstances, they waived the right to rely upon non-disclosure of the risk and were estopped from now doing so.

The SCA noted that King’s had at no time informed Regent that its tenant manufactured using flammable materials on the site. The presence of this tenant had a substantial impact on the risk to the insurer. The court reasoned that the reasonable person would have found this fact to be material and thus would have disclosed it to the insurer. The agreement that the insurer would undertake its own survey did not relieve King’s of the duty to disclose. Regent was able to show the court that its standard operating policies would have led to insurance being declined had it been aware that the building’s use fell into a high fire risk category. Thus the non-disclosure had induced it to enter into an agreement which it would otherwise have declined. The proven fact that another insurer had been satisfied with the management of fire risk at the property and had earlier extended insurance cover, did not detract from this.

With regard to estoppel, the SCA found that the prejudice to King’s had arisen from its own non-disclosure of the extent of the fire risk – and not from Regent’s failure to survey the premises as agreed.

The SCA accordingly reversed the ruling that the claim of R10 million be paid out, instead confirming that the claim was rightly rejected.

This case highlights the importance of ensuring that all material facts are disclosed to an insurer when insurance cover is sought.

In addition to disclosing particulars of the uses of tenanted commercial premises, it is wise for commercial landlords to include provisions in their leases with commercial tenants, directed at preventing any actions or omissions by the tenant which might affect the landlord’s insurance cover.

Key changes to the labour laws in 2015 – part 8: PART-TIME EMPLOYMENT

As this blog series comes to a close, we have yet to consider the recent changes to the law on part-time employment.

Again, the new law applies only to employees who earn below the currently prescribed threshold of R205 433,30 per year. It does not apply to employees who ordinarily work fewer than 24 hours a month for the employer, nor does it apply in the first three months of employment.

Employers with fewer than 10 employees, and those with less than 50 but in the initial two year start-up phase, are exempt.

The part-time employee is entitled to be treated on the whole not less favourably than a comparable full-time employee doing the same or similar work, unless there is a justifiable reason for different treatment. She is further entitled to access to training and skills development which is on the whole not less favourable than the access applicable to a comparable full-time employee. She is entitled to the same access to opportunities to apply for vacancies at the employer.

A justifiable reason may include seniority, experience or length of service; merit; the quality or quantity of work performed; or any other criterion of a similar nature.

A comparable employee is one who is identified as full-time in terms of the employer’s custom and practice, but not an employee on agreed temporary short time. One should compare with a full-time employee with the same type of employment relationship and performing the same or similar work at the same workplace, and only at another workplace of the employer if no such employee exists at the same workplace.

As with the new law governing fixed term contracts, greater equity between those enjoying standard (permanent, full-time) employment and those subject to non-standard (fixed term, part-time) employment is the objective. In the event of an infraction, the aggrieved employee may refer a dispute to the CCMA within six months. If not resolved at conciliation (that is, mediation) then the dispute may be referred for arbitration.

Key changes to the labour laws in 2015 – part 7: FIXING THE FIXED TERM CONTRACT

Many people are employed on fixed term contracts which are renewed time and again with no promise of job security beyond the current term of the contract. After the third or sixth or twelfth renewal, the employer announces that the contract will not be renewed further, and the employee’s attention is drawn to the term of the contract stating that she agrees that she has no expectation of further renewal. After three or six or twelve continuous years of employment, the relationship has been terminated without any fault on the employee’s part, and in the employer’s view no due process is called for.

The LRA has long provided that a failure by an employer to renew a fixed term contract (or an offer to renew but on less favourable terms) is a dismissal IF the employee can establish that she reasonably expected renewal. This has assisted affected employees who have the stomach to contest their dismissal at the CCMA AND who are able to produce the necessary evidence to show that they had an expectation of renewal which was reasonable in the circumstances. Many more have walked away from their employment situations with a sense that injustice has prevailed.

As of 2015, the LRA has been amended to come to the assistance of employees earning less than the currently prescribed threshold of R205 433,30 per year. Higher earners do not benefit from the new law. Exempted from compliance are employers with fewer than 10 employees, as well as employers with fewer than 50 employees who are in the initial start-up phase of two years.

The new law allows fixed term contracts (including renewals) for periods up to three months only. Fixed term contracts (including renewals) may exceed three months in duration only if (1) the work is of limited or definite duration in nature or (2) the employer can show another justifiable reason. The latter might include:

  • replacing an employee temporarily absent from work (such as on maternity leave)
  • a temporary increase in work volume not expected to last beyond one year (such as a one-off large order)
  • the employee is a student or recent graduate being trained or gaining work experience to enter a job or profession (such as a candidate attorney)
  • the employment is for work on a specific project only, of limited duration
  • a non-citizen employee has a work permit for a limited period only
  • the work is seasonal (such as apple picking)
  • the work is part of an official public works scheme or other job creation scheme
  • the position is funded by an external source for a limited period (such as in the NGO sector)
  • the employee is post-retirement age

The Act goes on to state that a justifiable reason includes the application of a system that takes account of seniority or length of service, merit, the quality or quantity of work performed, or other criteria of a similar nature.

Where the fixed term employment exceeds three months and there is no valid justification, the employment is deemed to be indefinite (that is, permanent) employment.

The employer’s offer of fixed term employment must be in writing and must specify a valid reason for the fixed term nature of employment.

In any proceedings, the employer bears the burden to prove that there was a valid reason for fixed term employment, and that the term was agreed with the employee.

Absent a justifiable reason, fixed term employees performing the same work as permanent employees are entitled to no less favourable treatment. Permanent and fixed term employees are also to be provided with equal opportunity to apply for vacant positions.

Where an employee is employed for a fixed term to work exclusively on a specific project of limited duration, for a period of over twenty-four months, then on termination the employer must pay that employee severance pay equal to one week’s pay per completed year of the contract. This applies prospectively to any work subsequent to the amendment date (1 January 2015) even if the contract was concluded before the amendment. No severance pay is payable, however, if before expiry of the contract the employer offers the employee, or procures for the employee with another employer, employment commencing at expiry on the same or similar terms.

This amendment is one of the most welcome changes to our labour law from an employee perspective, with the scope to prevent a great deal of abuse of the fixed term contract. One waits to see how strictly or generously the CCMA and courts will interpret the requirement that an employer demonstrate a justifiable reason for fixing the term of a contract.

Key changes to the labour laws in 2015 – part 6: BRINGING LABOUR BROKERS IN LINE

Throughout recent deliberations on amendments to the Labour Relations Act, the status of labour brokers, or “temporary employment services (TES)” was a hot button issue. Trade unionists called for their outright banning. At last, however, the law governing their operation was instead tightened up, in the interests of protecting those employed by them. Many of the amendments are aimed at halting abuses whereby employers circumvented  labour laws, sectoral determinations and collective agreements by employing staff via a TES.

Since a prior amendment, the Act has held a TES and its client jointly and severally liable for contraventions of basic conditions and other requirements – even though technically the TES is the employer, and the client is a third party to the employment relationship.

The new amendments go further.

(a) Where the TES and its client are jointly and severally liable for contraventions:

  1. The employee may sue either or both of them;
  2. The Department of Labour can take enforcement action against either or both;
  3. A court order or arbitration award issued against one in favour of the employee or labour inspector, may be enforced against either.

(b) TES employees must be given written employment particulars, compliant with the law on basic conditions of service, when they are employed.

(c) The terms and conditions of employment must comply with the Act and any labour law. In addition, significantly, where a TES employs an employee to do work for a client in whose sector there is a collective agreement or sectoral determination, the TES must comply with those too.

(d) A special level of protection is offered to employees of TES who earn below the threshhold currently set at R205 433, 30 per year. Such an employee remains an employee of the TES only if she works for the client for less than three months, is substituting for an employee of the client who is temporarily absent, or performs work which has been defined as temporary work in a collective agreement, sectoral determination, or notice by the Minister of Labour. Failing falling into those categories, the employee is deemed in law to the employee of the TES’s client. She is entitled to treatment which is not less favourable than that given to an employee of the client performing the same or similar work unless there is a “justifiable reason” for different treatment.

Key changes to the labour laws in 2015 – part 5: SOME RELIEF FOR AGGRIEVED EMPLOYEES IN SMALL RETRENCHMENTS

Prior to 2002, any dispute arising from an employee’s retrenchment from work, had to go to the CCMA for conciliation (a sort of mediation) and thereafter, if not resolved, to the Labour Court for adjudication after a full trial. This was of course costly, time-consuming and complex, and deprived a great many employees from access to justice. Those who did not have personal wealth or the support of a well-resourced and capable trade union, could often not afford legal representation to pursue their dispute, and lacked the skills to pursue the dispute as an unrepresented layperson.

In 2002, the legislature amended the Labour Relations Act to state that an employee who was dismissed following a retrenchment process that applied to her only, had an election to approach either the Labour Court for adjudication of the dispute, or the CCMA for arbitration.

This proved to be insufficient, however, as it did not assist other employees in a similarly isolated and vulnerable position in the retrenchment context.

This year, the legislature again amended the Act, now to extend the election between approaching the Court or the CCMA also to:

  • single employees retrenched, even where the preceding processes involved a larger pool of employees; and
  • employees retrenched by smaller employers (with ten of fewer employees) no matter how many employees were retrenched.

Whilst this is a move in the right direction, the different treatment of dismissals for conduct or capacity (which go to the CCMA for arbitration) and dismissals due to retrenchments (which usually go to the Labour Court for adjudication) is still open to criticism. The apparent rationale that retrenchment disputes are more complex may not be valid, and a more sweeping amendment allowing all employees in retrenchment disputes to elect to approach the CCMA instead of the Labour Court, would arguably be more appropriate.

What does the South African attorneys’ profession look like in 2013?

 

The extent to which South Africans of all races and genders are equally able to enter the attorneys’ profession has long been a matter of concern. The Justice Portfolio Committee of Parliament recently quizzed the Law Society of South Africa on the demographics of the profession, and the extent to which it has become increasingly representative of the population.

The Law Society furnished Parliament with the following statistics:

In 2013, South Africa has 21 463 practising attorneys. Of these, 41% are white men. Black men and white women come in with considerably lower figures, almost tied for second place at 24% and 23% respectively. Black women come in with much lower figures, representing only 12% of practising attorneys in this country.

Five years ago, in 2008, South Africa had 17 922 practising attorneys. Nearly half of these, at 47%, were white men. 22% were black men and following closely, 21% were white women. A mere 10% of practising attorneys were black women.

The statistics show a very gradual shift towards representivity, however with official statistics indicating that black women make up nearly 47% of the population, it seems highly improbable that the demographics of the profession will match those of the population in our lifetimes unless something changes rather drastically.

Much focus has been placed on the admissions policies of universities as a solution to the challenges, however mere possession of a law degree is insufficient to guarantee entry into and sustained, successful practice in the legal profession. More soul-searching within the profession is needed to explore why, in 2013, the profession does not attract and maintain greater numbers of women and black professionals.

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Decoding Legalese: Part 1 SEVERABILITY

Most written agreements end off with a number of “boilerplate” clauses, being the small print that is usually glossed over. These are standardised clauses which deal with general matters and appear in most contracts, regardless of whether the specific agreement concerns a simple sale of apples or the manufacture of jet planes worth billions of rands.

Examples include clauses about severability, the whole agreement, variation, disputes, jurisdiction and so on.
These clauses are often clumsily drafted in high legalese. For the sake of covering all bases, they may go on much longer than is strictly necessary.
This series of updates seeks to decode the legalese in some of the most common boilerplate clauses.
Towards the end of most agreements, one comes across words to the following effect under the heading “SEVERABILITY“:

Except as expressly provided to the contrary herein, each paragraph, clause, term, and provision of this AGREEMENT, and any portion thereof, shall be considered severable. If for any reason, any provision of this AGREEMENT is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation by any Court in any proceeding between the parties, that ruling shall not impair the operation of, or have any effect upon, such other portions of this AGREEMENT as may remain otherwise intelligible, which shall continue to be given full force and effect and bind the parties hereto.

The effect of this clause is, in a nutshell, that if any part of the agreement is found to be invalid, it will not result in the entire agreement being invalid. Instead, the invalid part will be ignored as if removed from the agreement, and the rest of the agreement will stand.

For example, we might agree:1. I shall purchase ten apples from you every week for a year.

2. I shall pay you R3,00 per apple.

3. If I fail to pay for any single apple, then you may cause the words “bad debtor” to be tattooed in large black capital letters across my forehead.

4. The clauses of this agreement are severable, one from the other.

Clause 3 would be found to be against public policy (that is, morally repugnant and socially undesirable) and thus unenforceable. However as the clauses are expressly severable one from the other, you could still enforce your right to payment against me. The failure of clause 3 would not mean that the agreement fell away in its entirety and you were left out of pocket.

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