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<< November 2008  | December 2008 |  January 2009 >>
Customary marriage decision
The decision of the Constitutional Court with regard to customary marriages prior to 2000 is a welcome one, and one that will bring relief to many women in many divorces. Those women married before 15 November 2000 had been placed in a position that could result in them obtaining nothing in the event of a divorce.  A number of clauses of Kwazulu Natal law relating to the father being head of the household and owning all assets were declared unconstitutional as well as a code that provides that those who live in a kraal owe their obedience and loyalty to the head of the kraal.
Posted by Michael de Broglio on Tuesday 09-Dec-08   |  Permalink   |  0 Comments  Comments
Vusi Pikoli fired
I don’t know Vusi Pikoli well, although I suspect he has got a brilliant labour case against the government coming up.  I met him at the Johannesburg Attorneys Association Annual General Meeting and although I missed his speech, a copy of it, which I assume had been handed out to all people, was right in front of me and I read it through in detail.  At the end of the meeting, and he stayed for the entire meeting as well as snacks, I was about to leave with my copy of his speech when he quite politely asked me for it back, revealing that it was his only copy of same!  I explained to him that I am quite used to our speakers bringing a number of copies, because the media generally ask for copies and the event was, as usual, attended by media.  In any event, he seemed like a very decent man and I was quite surprising to hear, at the end of the whole report vindicating him, that he was fired from his job for reasons that he was never charged with in the first place.  I certainly am not a labour law expert, but I cannot imagine anything other than a big settlement going his way, and my prediction would be on about two years’ salary.  They can hardly afford to have his case back in the media for another year.  Of course, it is always easier when you and I as taxpayers will be paying the settlement in any event.

Posted by Michael de Broglio on Wednesday 10-Dec-08   |  Permalink   |  0 Comments  Comments
LSSA statement on the firing of Pikoli
The full text of the LSSA statement on firing of Vusi Pikoli

The Law Society of South Africa (LSSA) says the decision by President Kgalema Motlathe to recommend the dismissal of National Director of Public Prosecutions (NDPP), Vusi Pikoli, albeit the President’s prerogative, appears to have failed the test of rationality for various reasons. LSSA Co-Chairpersons, Max Boqwana and CP Fourie, say the enquiry raised a number of shortcomings in the system.

‘Instead of taking the narrow approach and dismissing the NDPP, the President should have taken this opportunity to reorganise and strengthen the prosecutorial authority, and in particular the manner in which it relates to the Executive,’ said the Co-Chairpersons.

 As regards the test for rationality, the LSSA points out that Mr Pikoli’s dismissal raises a number of questions:

  • The Enquiry Commission was set up in terms of the National Prosecuting Authority Act, 1998; but its authority is not clear.
·         Can the President, in future, on his own and without the application of the facts, dismiss the head of the prosecutorial services?

·         Should the President, in future, be guided by political considerations in appointing a National Director of Public Prosecutions, rather than by the internationally acceptable principles of independence and the discharging of prosecutorial responsibilities without fear, favour or prejudice.

The LSSA understands that the parties involved in this matter may still exercise their legal rights and, therefore, does not wish to deal with the merits of this matter at this stage, save to point out that

·         in exercising its responsibilities the NDPP must appreciate its independence from the Executive;

·         Parliament should consider all the facts before confirming the President’s decision;

·         the grounds on which the President can ignore the recommendations of a properly constituted committee and take his decision, should be assessed;

·         the impact of the precedent created by the decision of the President; and

·         above all, Parliament must consider the interest of the nation rather than a narrow political stance.

Since President Motlanthe chose to recommend Mr Pikoli’s dismissal on the ground that he was insensitive to national security and the political environment, the LSSA urges the President to explain clearly his understanding of where prosecutorial independence to carry out prosecutions without fear, favour or prejudice, as guaranteed by the Constitution, is superseded by the protection of national security. ‘The President should explain the basis for his decision to both the public and Parliament,’ say Mr Boqwana and Mr Fourie.

The LSSA believes the South African public is entitled to a proper explanation by the President so that, when presenting his case to Parliament, Parliament is not seen to be simply rubber-stamping a politically motivated decision.

Posted by Michael de Broglio on Monday 15-Dec-08   |  Permalink   |  0 Comments  Comments
JSE
Investing in shares and unit trusts at the right time has proven to be probably the best investments out over the last 100 years.  I have been lucky enough to have some pretty good timing over the last 10 years, but the one thing I always notice when they announce what the Index has done over the last 100 years or 10 years, is that they never tell you how the Index is constituted.  It essentially is an Index at the current time the 40 biggest companies on the JSE by market capitalisation.  How do they get that?  It is a question of the valuation of the shares.  In other words, when a share price goes up, the company’s capitalisation increases.  When the opposite happens and the capitalisation goes down and the company’s value starts dropping, they kick them off the top 40 Index!  What does that mean?  If means that if you bought a large capital of Index shares, say 20 or 30 years ago, and held them all this time, you may not be doing anywhere close to as well as what you have read in the newspapers happened with the Index Fund since then.  For example, this year alone, because their performance or overall value has gone down, Barloworld, Imperial, Murray & Roberts and Aveng were removed from the Index and shares on the way up, including Pick ‘n Pay, Shoprite and Abil were added to the bundle of shares that constitute the Index.    This is obviously very convenient, because of the top 40 stocks this year the only one that has made any notable gains is Shoprite, which is up 15%.  It was not however a part of the Index at the beginning of the year!  The point I am making is if you just blindly follow the Index, and there are lots of people who follow that tactic, given that that approach tends to beat about 75% of the equity managers who actually “apply their minds”, then you need to do so via a Fund which constantly changes the constituent elements of its index of which there are a few pure index tracking funds in South Africa.  In some ways, this is a manipulation, because by the process they use, the Index may well, although that is not necessarily always going to be the case, provide a slightly more positive view of the market as a whole than would otherwise be the case with the losers getting tossed out each year, and being replaced on a continual quarterly basis, with the winners in terms of growth of the company’s capitalisation. 

Posted by Michael de Broglio on Tuesday 16-Dec-08   |  Permalink   |  0 Comments  Comments
Drive carefully and hope you are not ruined for life
I think one of the concerning things, this festive season, as people head out to holiday destinations, is how very few of them seem to be aware of how little compensation and cover they will get in the event of an accident that could ruin their lives. I'm quite sure, at the end of this particular holiday season, that some families will be ruined for life, due to the loss of a dear one, and others who suffer severe injuries will not only be left physically ruined, but most probably bankrupt too.  How are people going to pay bonds on R13 300 of maximum compensation a month in the event of a death of a loved one?  And have no claim against the wrong doer?  Of course, a Constitutional Court challenge by the LSSA looms, but until that is heard, people really are going to found themselves in a precarious situation and are going to need to take very costly insurance from which ever insurance companies do now offer this cover.

Posted by Michael de Broglio on Monday 22-Dec-08   |  Permalink   |  0 Comments  Comments
Major companies pay fines for way of doing business
I see that the major German company, Siemens, is admitted to and paid a massive fine for, in America, to what essentially is bribery. One of their employees has been arrested and sentenced to a period of two years and he was responsible, in the main, for happily putting these items through their books! Of interest, is that they had to pay the highest bribes in Russia, China and Israel. The person in the company who was responsible for effecting such payments budgeted approximately $40-$50 million a year for payment of such bribes.

Posted by Michael de Broglio on Wednesday 24-Dec-08   |  Permalink   |  0 Comments  Comments
Tickets for Confederations Cup
One of the keys to the Internet is the way that it makes things generally a lot more accessible, and easier to do. Every now and then you come across a site where the opposite is true and the Fifa.com site is certainly one of those. At all levels we see street advertising that we must apply online to obtain our tickets to the event that is in away the official warmup for the next World Cup and that is next year's confederations cup. I did eventually manage to book my tickets, but I can tell you that the website is an ordeal requiring you to register and then asking you if you would like avatars and all sorts of other things and just finding the location to book the tickets takes quite some time, is fairly difficult and it will not surprise me at all to later hear that ticket sales have not been going well at all - well not through this option in any event. Something that should have taken me perhaps 3 to 5 minutes must've taken at least 20 minutes and I am pretty good when it comes to doing things on the Internet. Quite frankly, after an ordeal like that I would rather have joined a short queue at Computicket and obtained tickets that way.

Posted by Michael de Broglio on Wednesday 31-Dec-08   |  Permalink   |  0 Comments  Comments

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