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Letters to the Editor

• PO Box 36626, Menlo Park 0102

• Docex 82, Pretoria
• E-mail: derebus@derebus.org.za

• Fax (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

Legal job cake

I have just read the editor’s note in the July issue of De Rebus. Everything the editor said is so true and has really touched me as I am a living example of what she wrote about. I have been in the legal fraternity for seven years now and in 2010 I and 13 of my colleagues were retrenched from work due to my employer losing one of his major clients. This caused a major setback in my life as I had quite a number of responsibilities to take care of. I decided to send out as many copies of my curriculum vitae as possible in a bid to find work, but nothing came up. I also registered for a number of short courses in order to improve my knowledge, skills and chances of getting employed. However, I would be called for an interview once in six months, which caused me to lose hope and go through a phase of stress. I even thought that maybe I had made the wrong choice by choosing this career. As a result, I moved into farming, which has always been my hobby, but then realised I was not fulfilled. My love for my chosen career never died. As such, I decided to be proactive and create employment by starting my own law firm. It was, and still is, not a walk in the park; among other things, the challenges I face are lack of enough work to sustain myself and, even with the few individual clients I manage to get, payment is delayed and sometimes not made at all. I have knocked on quite a number of doors marketing my law firm but have received no answer. I then realised that the ‘legal job cake’ is getting smaller and smaller by the day. In my experience, the only firms benefiting from the aforementioned ‘cake’ are big firms and a few lucky medium-sized firms. These firms may not be willing to take the risk of hiring new staff because their share in the ‘cake’ is also being reduced daily. This results from the fact that big clients with more work may not be willing to give small firms opportunities to do work for them; instead, work is pumped into their ‘trusted’ big law firms. Furthermore, the gap between the attorneys who are making it and the attorneys who are not making it is vast and keeps getting bigger by the day. This is not necessarily as a result of the work experience of the attorneys who are making it and/or their IQ, but in some instances is pure luck. There are those who were lucky enough to be given opportunities to do their articles in big firms, who were subsequently appointed as associates and eventually become partners in those firms. On the other hand, there are those who never received the aforementioned opportunities and are struggling so much that they barely survive. Come to think of it, it is heartbreaking to see an attorney who has spent four years studying towards an LLB degree, two years completing articles and who has written admission examinations in those poor conditions. This has, in turn, put a mental and financial strain on a number of young attorneys, thereby leading them to lose hope and eventually engage in self-destructive behaviour. Luckily, I have not lost hope and I am determined to hold on, even if it is very hard. What motivates me is my love for my career, which is the result of my ability to assist my clients and my desire to play a big role in attaining justice for all.

Bogosibotsile Mogajane, attorney, Pretoria

Beware the law of unforeseen consequences

A recent development that practitioners should be aware of is that the eThekwini Municipality in KwaZulu-Natal will not open an electricity account for a residential tenant – only the landlord can do this in his own name. This is a direct result of the Constitutional Court judgment in Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (1) SA 530 (CC), in which the court ruled that services pertaining to land are (ultimately) payable by the owners and not the persons who have contracted for those services. So, if a tenant does not pay rental or reimburse the landlord for these services, is the landlord entitled to instruct the municipality to discontinue these services? How can the municipality refuse to do so if the agreement provides for cancellation, or is it going to be impossible for landlords to cancel agreements?

Beware the law of unforeseen consequences when meddling with long-established legal principles! I fear that there are going to be many problems facing landlords and attorneys as a result of such developments.

Graham Theunissen, attorney, Westville

Master of the High Court, Pretoria

I have been experiencing problems with an estate in which I am one of the executors. I was dealing with the Master’s Office in Pretoria by telephone and by correspondence and I eventually decided that it was necessary for me to personally discuss the matter with the Assistant Master involved.

I am aware that some time ago there was much adverse publicity regarding the Master’s Office in Pretoria and it was with some trepidation that I undertook my first visit to its new offices in Pretoria.

The person who had been dealing with the estate was Thuso Nkonyane and the Assistant Master dealing with the matter was Elizabeth Sekome.

I must at the outset record that I was very impressed with the security arrangements at the office and I trust that the security will be continued on this basis. I met with Mrs Sekome and I discussed my problems with her. We discussed the possible way forward in the estate and she was most helpful in assisting me. I found the approach by Mrs Sekome to be very professional and at the same time I got the impression that she was prepared to assist in any way that she could to try and have the estate dealt with in a manner that would be most beneficial to all concerned. We discussed certain possibilities in the administration of the estate and I left her office with the feeling that my initial concerns about the Master’s Office in Pretoria were totally unfounded. I was treated very professionally and courteously by both Mrs Sekome and Mr Nkonyane and I was left with the impression that the staff at the Master’s Office would at all times do everything possible to assist in dealing with problems that may be encountered in deceased estates and that I would be able to approach them at any time and be able to rely on their advice and professional assistance.

I also found the offices, or what I saw of them, to be well organised and in a neat and tidy condition.

I appreciate that many of my colleagues may not have been so fortunate in their dealings with the Master’s Office and I also understand that they may feel that I was impressed with the service because of the fact that I was given every assistance in dealing with my problem. However, I feel that one reads so many negative comments about the Master’s Office, particularly in Pretoria, that having had a good experience there, I should record this. I must say that this is not the only positive experience that our offices have had with the Master’s Office in Pretoria and one can only hope that the workings of this office will reach the stage when everyone’s experience in dealing with it will be on the same basis as my recent experience.

Kevin Mahon, attorney, Krugersdorp

Pasop vir SARS

’n Uitdrukking wat gewoonlik gebruik word om jou te waarsku dat jy eerlik moet wees met jou belastingsake.

Die uitdrukking het nou ’n ander uitleg gekry: ‘Jou persoonlike sake wat as vertroulik beskou word, is nie meer vertroulik nie.’

Die volgende het met ons gebeur: Ons beredder ’n boedel. Die mede-eksekuteur reël met sy rekenmeester om die oorledene se opgawe tot datum van dood in te dien by die South African Revenue Service (SARS) en die rekenmeester ontvang die aanslag met sy korrekte posadres daarop. (Die rekenmeester is dus by SARS op rekord).

Ons dien die boedelrekening by die Meester in en ontvang ’n aanslag vir boedelbelasting.

Die aanslag vir inkomstebelasting was betaalbaar op 31 Julie 2012 en die aanslag vir boedelbelasting op 7 Julie 2012. Die betalings is gemaak op 5 Julie 2012 en 21 Junie 2012 by wyse van tjeks wat gepos was en behoorlik deur die bank betaal was kort na die tjeks gepos is.

(Die boedelbelastingaanslag het ons adres op.)

Op 9 Julie 2012 ontvang ons ’n e-pos van ’n onbekende instansie wat beweer dat hulle ons firma kosteloos op hul webwerf adverteer en daarby aangeheg is ’n afskrif van die aanslag vir inkomstebelasting vir die boedel en ’n brief van SARS aan ons, tesame met ’n staat wat aantoon watter bedrae nog deur die boedel verskuldig is. Op die e-pos verskyn ook besonderhede van ’n e-pos wat SARS aan die betrokke instansie gestuur het.

Na ’n telefoniese navraag by SARS word ons meegedeel dat hul ons firma ‘ge-google’ het, kontak gemaak het met die onbekende instansie wie hul meegedeel het dat die onbekende instansie namens ons optree en dat SARS enige korrespondensie na hul kan stuur vir deursending aan ons, wat SARS en hulle gedoen het.

Ons het onsself toe ook ‘ge-google’ en die advertensie gevind, ongelukkig was die e-pos adres ‘info@(onbekende instansie).com’ en het SARS dus met hulle kontak gemaak.

Wees dus gewaarsku dat SARS nie meer jou sake as vertroulik beskou indien jy ‘ge-google’ kan word nie.

PC Luttig, prokureur, Bredasdorp

SARS response

SARS has looked at the letter from Mr Luttig and would require more information from him in order to trace the call(s) made to the call centre and in order to establish whether the complaint has merit. This would allow SARS to pursue the matter further. At this stage, SARS will view the allegations as untested.

The cautionary note in the heading of the letter: ‘Pasop vir SARS’ appears to be disingenuous.

It must be emphasised that s 4 of the Income Tax Act 58 of 1962 prohibits any SARS official from disclosing taxpayer information to any unauthorised third party, including the media. All SARS officials, including call centre staff, must observe these confidentiality provisions in law and officials are trained accordingly. All calls to the call centre are recorded and reference numbers are issued to callers.

Taxpayer confidentiality is an obligation imposed on SARS by the Income Tax Act, among other pieces of legislation. SARS must respect the legal rights of all taxpayers regarding confidentiality, on the one hand, while striving to preserve the integrity of SARS’ own procedures and the integrity of this institution, on the other hand.

Taxpayer confidentiality extends to whether or not a taxpayer is under investigation. Taxpayer confidentiality ends only when a matter is formally brought before a court of law, other than a Tax Court. It then becomes a matter for public record.

Your attention is drawn to s 4(1) of the Income Tax Act, which reads:

‘Every person employed or engaged by the commissioner in carrying out the provisions of this Act shall preserve and aid in preserving secrecy with regard to all matters that may come to his or her knowledge in the performance of his or her duties in connection with those provisions, and shall not communicate any such matter to any person whatsoever other than the taxpayer concerned or his or her lawful representative nor suffer or permit any such person to have access to any records in the possession or custody of the commissioner except in the performance of his or her duties under this Act or by order of a competent court … .’

As a point of emphasis, SARS views contraventions of s 4, among other provisions, as a serious breach of protocol. We need further information to pursue the matter.

Adrian Lackay, spokesperson, South African Revenue Service

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