The Monthly Review

Lawyer, who was called more than 300 times in 5 days by alleged harasser, wins high court appeal

Jeanette Chabalala – News24 on 23 April 2022

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An attorney, who wanted a protection order, won an appeal in the Gauteng High Court.

Last year, the court dismissed the lawyer's application after it asked why he did not just block the man's number.

The high court has now remitted the matter back to the magistrate's court to be dealt with afresh.

In July last year, a Gauteng attorney approached the Randburg Magistrate's Court in an effort to have a man, who had called him more than 300 times in five days, to stop "harassing" him.

But the lawyer, Rudi Pottas, was asked by a magistrate to explain why he could not simply block his alleged harasser's number.

In his court papers, the attorney had stated that, on one or two occasions, he would answer Shaun Plath's call, but he would "not speak or engage in any type of conversation and simply remain silent".

He said the continuous calls were a clear indication of harassment. He said the alleged harassment had continued for many months, and when he had asked the respondent to stop harassing him, he received 68 calls.

He listed the summary of the calls in July 2021:

20 July 2021 – 28 calls

22 July 2021 – 68 calls

23 July 2021– 17 calls

26 July 2021 – 167 calls

27 July 2021 – 68 calls

Pottas said:

I am unable to conduct consultations as my phone keeps ringing from the respondent's incessant calls. My battery life on my phone is drained prematurely from the respondent's continuous calls. I am unable to send messages to clients as the calls interrupt the process and cause frustration and delays. The respondent has illustrated his harassing conduct by continuously attempting to contact me telephonically.

He asked the court to order Plath to refrain from contacting him via telephone or WhatsApp. He also requested the court to grant him a protection order against the man.

But an additional magistrate at the Randburg Magistrate's Court wrote a query on the file containing the application: "I don't understand why the applicant [the lawyer] cannot resolve the matter by simply blocking the respondent's number. Please explain."

The lawyer's case was dismissed after he "refused to comply with the query".

However, the Gauteng High Court in Johannesburg found there was no rule, regulation or section in any act which grants a presiding officer the authority to raise a query in respect of an ex parte application in terms of the Domestic Violence Act or The Protection from Harassment Act ('the Act').

"The Act is clear in that section 3 stipulates what guidelines a court ought to follow, that being, inter alia, is there prima facie evidence that the respondent has engaged in harassment. If the answer is affirmative, then the court should grant an interim order as prayed for. (The Founding Affidavit clearly sets out the harassing conduct of the respondent – 167 phone calls in a single day as [an] example)," said the acting judge of the high court, L J du Bruyn.?

"A court cannot, with respect, suggest in what manner an applicant should resolve the impasse. The court should simply ascertain whether the respondent has engaged in harassing conduct or not."

Du Bruyn said that, if this were the position, it would mean each and every matter would be resolved on the basis that the victim can simply mitigate or prevent the wrongful conduct of a perpetrator.

"The Act does not provide that a court may dismiss an ex parte application for a protection order against harassment without it first having been considered on a return date."

The high court ruled in favour of the lawyer, setting aside the magistrate's ruling.?

Du Bruyn remitted the matter to the Randburg Magistrate's Court to be considered afresh before another magistrate.

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SCA judgment ‘puts fund retirement members’ accrued benefits at risk’

Moonstone Compliance and Legislation - Mark Bechard - 21 April 2022

The Supreme Court of Appeal’s “deeply disturbing” decision in the case of Municipal Employees’ Pension Fund vs Pandelani Midas Mudau puts at risk the accrued retirement benefits of millions of fund members, says pension fund attorney Rosemary Hunter.

The court’s ruling that a retirement fund’s rules may be amended to reduce the benefits that have already accrued by the time the amendment is approved and registered “flies in the face of conventional legal principles”, said Hunter, who has 25 years’ experience in retirement and financial services law and regulation.

She said the judgment should be challenged in the Constitutional Court, given the importance to members and to the country of the social security benefits provided by retirement funds, and the tax incentives provided by the state to promote retirement savings as part of the measures adopted by it to comply with its social security obligations in terms of section 27 of the Constitution.

In Hunter’s view, the Pension Funds Adjudicator was correct when she determined that the MEPF’s amended rules could not be applied to the calculation of a benefit that had accrued before the amendment had been approved and registered, even if the amendment was intended to be retrospective to a date before then.

In what Hunter called a baffling judgment handed down on 8 April, the SCA unanimously held that:

Section 12 of the Pension Funds Act (PFA) empowers a fund, subject to the approval of the registrar (now the FSCA) to amend its rules and to determine the date on which the amendment will become effective;

If by the amendment of its rules the fund intends to interfere with rights retrospectively, this intention must be given effect to; and

As the MEPF had decided that the amendment would have retrospective effect from 1 April 2013, its application to the calculation of Mudau’s benefit had not been invalid.

Potential financial planning implications:

Hunter said if the SCA’s ruling is not overturned, the rights of members and beneficiaries of retirement funds subject to regulation and supervision in terms of the PFA will become “wholly uncertain”.

She provided the following example to illustrate her point:

When planning her finances, a fund member may take into account that, if she dies before retirement, then, in terms of the registered rules of her retirement fund, the fund will pay a lump-sum benefit equal to three times pensionable remuneration plus accumulated retirement savings. That lump sum can be shared among the deceased member’s beneficiaries in proportions the board of the fund considers fair and consistent with the social security purposes of section 37C of the PFA.

According to the SCA judgment, however, the trustees would be entitled to amend the rules with retrospective effect from a date before the member died to reduce or even eliminate the amount of the lump-sum benefit payable on death, even if, by the time the rule amendment has been registered, the board has allocated shares in the lump-sum benefit among the deceased member’s beneficiaries.

‘SCA has made an incorrect assumption’

Hunter said the SCA started its analysis at the wrong point: the intention of the fund when it adopted the rule amendment.

“The court should have started with an analysis of what sub-section 12(4) allows and does not allow in regard to the effective date of a rule amendment.”

She said the sub-section states that the fund can determine the date from which an amendment will be effective. It does not explicitly state that the amendment may be made either:

Retrospective in that it is prospective in effect, but imposes new consequences in relation to events that occurred before the amendment was approved; or

Retroactive in that it changes the rights and obligations of members and the fund from what they were before the amendment was approved, and thus can have adverse impact on rights accrued by members and beneficiaries in terms of the pre-amendment rules.

“The court was not entitled to assume that section 12(4) was intended to authorise retrospective, and even retroactive, amendments. Instead, time-honoured legal principles required it to find that the section does not permit any interference with rights accrued in terms of the pre-existing law or rules.

“By doing the opposite, the SCA implicitly endorsed past conduct by the MEPF that was not authorised by the then registered rules of the fund (that is, calculating and paying a benefit on a basis other than that provided for in its registered rules), which was, as the SCA in Mostert NO v Old Mutual Life Assurance Company reminded us, therefore unlawful and invalid,” Hunter said.

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Strong foreign demand for new South African bonds

Fin24 – Staff reporter – 13 April 2022

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The SA government received bids worth more than $7 billion for the $3 billion (~R44 billion) in new dollar-denominated bonds on offer this week.

The 10-year bond coupon rate of 5.875% represents a spread of 309 basis points above the 10-year US Treasury.

This is in line with the spread in 2019, when government last issued dollar-denominated bonds.

There has been strong foreign appetite for the $3 billion (~R44 billion) in new dollar-denominated bonds placed by government this week. The bonds attracted bids of $7.1 billion – more than double the amount of bonds on offer.

Treasury says a range of investors - including fund managers, pension and hedge funds as well as banks - from the UK, North America, Europe, Asia and Africa showed interest.

"The strong demand by foreign investors is indicative of South Africa's improved terms-of-trade outlook, an improved fiscal position, as well as its position as a relative 'safe-haven' in this environment when compared to other emerging market economies such as Turkey and Russia," says Yunus January, portfolio manager at Futuregrowth.

The 10-year bond coupon rate of 5.875% represents a spread of 309 basis points above the 10-year US Treasury. The bigger the spread above Treasury rate, the more risk is associated with the bond.?

When South Africa last issued US dollar bonds in 2019, government bonds were still rated as investment grade by Moody’s. All three of the large credit rating agencies now rate South Africa as "junk", or below investment grade.

Still, the spread on the latest bonds is similar to the spread at issue for the 10-year US dollar bond that was issued in 2019, says Carmen Nel, an economist and macro-strategist at Matrix Fund Managers.

The spread is also broadly in line with that of Brazil, South Africa’s "rating peer", which has a similar credit rating and is also a commodity producer, says Nel.

The Brazilian 10-year US dollar bond is trading at around 280bp above the US 10-year yield.

January says that South Africa’s sovereign risk premium has come down materially since the start of the Russia-Ukraine conflict and the recent upgrade in South Africa's outlook from "negative" to "stable" by Moody's would have also supported spread compression.

Nel says Moody’s decision indicates that the ratings are set to stabilise – a positive development. "Previously there was elevated risk that South Africa would continue to experience credit rating downgrades."

In a statement, Treasury said the final yields reflect a tightening of 37.5 basis points and 45 basis points from the initial price - indicating that due to solid investor demand, government will pay less in interest than expected.

"The South African government views the success of the transaction as an expression of continued investor confidence in the country’s sound macro-economic policy framework and prudent fiscal management," it added.

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Want to send your child abroad to study? Start saving now

IOL - By Erik Olwagen, Head: Distribution, Standard Bank International Personal Banking (South Africa & Africa) - Published Mar 30, 2022

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Unless your child manages to receive a comprehensive bursary to study internationally, funding their education without the necessary savings could potentially put you out of pocket.

Unless your child manages to receive a comprehensive bursary to study internationally, funding their education without the necessary savings could potentially put you out of pocket.

As Africans become increasingly global, many families are considering opportunities for their children to study abroad.

Accessing specialised fields of study and experiencing new cultures and ways of living are just some of the benefits associated with a global education. However, the cost of funding such an endeavor is significant and one that requires careful financial planning well in advance.

So, unless your child manages to receive a comprehensive bursary to study internationally, funding their education without the necessary savings could potentially put you out of pocket. If you have the suspicion that they might want to study abroad one day and want to be able to offer the opportunity to them, you are going to have to start ring-fencing some funds for this purpose as soon as possible.

The reason being is that there are just so many costs to factor in. It’s not only the primary costs of tuition and fees, but there are also secondary costs such as books, transport, accommodation, health insurance and other general living costs to consider. If you plan to visit your child while they are there, or bring them back home during the holidays, that will also set you back financially.

How and where to start:

Let’s say you have a time horizon of 10 years; the first port of call is to set up an international bank account in your jurisdiction of choice. The tricky part is selecting a currency. While you may plan for your child to study in the UK, they may have different ideas for themselves. Of course, you can’t save in every currency just in case.

However, it won’t be sufficient to simply place foreign currency in this offshore bank account. It is critical to consider investment options that will help your money grow in time. The type of investment will depend on your unique circumstances such as time horizon, and appetite for risk.

If you have time on your side, you may want to consider a more aggressive investment approach to start off with. As you get closer to the time for your child to leave home, however, you will need to strategise around your risk approach. This could mean taking some of the cash and placing it into a more conservative investment to buffer against any potential market volatility.

But it might be that you only have three to four years to save and in that case, your risk approach would look different. It is therefore advisable to consult an advisor to specifically address the objective and to map out an investment plan to achieve that goal.

Investment vehicles to consider:

In this scenario, you could consider a combination of:

Fixed term deposits and notice accounts, which are like bank accounts but provide elevated [interest] rates and liquidity and are therefore more appropriate for short-term needs.

More structured investments like capital protected-style products (structured deposits and structured notes) which vary between one- and six-year terms.

Unit trusts for additional flexibility.

Whereas if you want to put down a lump sum now, you may want to look at discretionary portfolio management services. So, instead of placing say USD1 million in one fund or investment, it could be used to invest in a well-diversified portfolio of investments.

It is important to note that these vehicles are all linked to risk. Depending on whether you are cautious, balanced, or aggressive, there will be different funds and different portfolios for each of those types of profiles. This is where the value of a professional comes into play.

A decision that requires careful consideration and planning:

We understand that educating your child at a tertiary level presents many financial challenges and even in South Africa, it is difficult to forecast with complete accuracy on the exact costs associated as there may be a need to repeat courses or your child might change their field of study.

These costs may be exacerbated when they are in foreign terms, due to fluctuating currencies, and so one should carefully assess whether it is the right choice for their child.

Standard Bank has been in business for many years across the African continent and its International Client Solutions is well-established and equipped to provide clients with access to international banking and investment solutions.

Having recently won the International Investment Award for excellence in private banking, Standard Bank is poised to facilitate all your international banking needs and assist in your planning with regards to sending your child offshore to study.