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| This page contains short opinions on different aspects of South African law and is not presented as, nor intended to be legal advice. Readers are requested to contact an attorney of their choice for professional legal advice.
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| SASRE BILL 2005: Safety at Sport and Recreational Events Bill 2005 | |||
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General Comment as requested, deadline April 2005 [April 2005]
The Safety at Sport and Recreational Events Bill 2005 (SASRE Bill) was released for comment in early March 2005. SASRE Bill is an extensive document, extending over almost 100 pages and covering a number of sport and recreational issues relating mainly to events, as the title implies. This document deals in broad terms with the scope, structure and contents of the SASRE Bill. This document aims to highlight perceived ambiguities and perceived problem areas in the SASRE Bill. The nature of this document is to focus attention and highlight certain perceived problem areas. It is possible that reasons for certain provisions exist which are not apparent to the author. This is not a definitive discussion of SASRE Bill. Scope The SASRE Bill does not contain a defining chapter on events specifically included or specifically excluded. One would expect such a chapter to follow on the definitions in Chapter One. The SASRE Bill as it stands extends to all conceivable social events. The only current exclusion is limited to events of 'a private individual.' It should be noted that certain 'private individuals' such as former President Nelson Mandela may attract substantial numbers of eager, yet unwanted and unexpected attendees to a specific event. SASRE Bill does not provide for the specific exclusion of public/private events of a minor nature. Multi-event venues Further more, certain venues, such as Sun City or Montecassino are comprised of multiple event venues at the site, and host and offer multiple events simultaneously at the relevant site. Certain of these venues may be used for private events, while others may be open to general public access. Although each of these events may be of minor importance the synergy created between the various events occurring simultaneously at the same venue, may effectively create a situation not expressly covered in the SASRE Bill. It needs to be pointed out further that the 'event organizer' is not always in a position to have knowledge of, nor act in reasonable time based on changing circumstances where the venue owner is a different and independent entity. Sponsorship The SASRE Bill creates extensive liabilities and obligations which do not necessarily exist at common law and creates a minefield for any persons (natural and juristic) involved in sport and recreational activities. The concurrent right to protect such interest and rights are not necessarily covered, see item 26.1(b) of the SASRE Bill. In particular, it should be noted that obtaining sponsorships may become much more onerous as prospective sponsors may be intimidated by the extensive obligations and possible liabilities envisaged by the SASRE Bill. This will obviously have a detrimental effect on Sports Federation country wide as only the larger federations will be able to provide security toward prospective sponsors, while most small and medium size federation should expect to find themselves shunned in future by current sponsors. This additional threat to the viability of sport sponsorships is expected to have a serious detrimental affect on smaller scale sports federations. Administration Due to the non-exclusion of certain minor public events, the onerous duties and obligations envisaged in SASRE Bill may make certain such minor public events non-viable from an administrative point of view. Especially the extensive record keeping and the appointment of suitable individuals to certain positions envisaged by the SASRE Bill will place heavy burdens on the already limited and over-extended administrative and financial resources of many organizations. This is in addition to the level of liaison which will be required by the SASRE Bill between the various role-players, including the event organizer, venue owner, the SAPS, sponsorship rights holders and participants and/or their agents. Back to top | |||
| THE LEGAL PROCESS | |||
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Members of the public often misunderstand what an attorney can do and how attorneys do their work. Most members of the public have excessively high expectations of what attorney can achieve in the short term and underestimate what attorneys can do in the long term. Even on very simple facts an attorney would normally
The time delay between the letter of demand and the summons may be as few as ten days, while it is not unreasonable to expect a time line of a minimum of three months from the issue of the letter of demand to taking the first tentative steps towards attempting an insolvency application. The very real effect of sequestration for a debtor is probably much worse than the attorney's client ever intended, however this is typical of the slow working of the legal system. Back to top | |||
| POWER OF ATTORNEY | |||
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A POWER OF ATTORNEY comes in many forms and may be described as a 'mandate,' 'a letter of authority,' 'a proxy' or 'power of attorney.' In its most basic form, a power of attorney is simply a (written) instruction by one person, giving certain powers in certain matters to another person. In its most complex from a Power of Attorney is a lengthy, extensive document properly executed and notarialy sealed and registered at a Deeds Office with a 'PA' number. Why use a registered 'Power of Attorney'? Especially in the case of older people, it is quite common that a parent give an extensive Power of Attorney to a child to take care of his or her affairs. With the increase in South African citizens living in foreign countries while still owning property in South Africa, the necessity to appoint formal agents has increased, and with it the use of properly registered Powers of Attorney. This allows the absentee owner the peace of mind that a trusted agent with a clear mandate and supported by unambiguous legal documents may act on his or her behalf. Back to top | |||
| AUTHORITY: PERMISSION AND CONDONATION | |||
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Organizations develop formal authority structures to ensure effective execution of activities and efficient decision making at all times. Authority in law then stems from this appointment of agents by the organization to act on the organization's behalf, the organization to be bound by the actions of these agents. Such agents may be true agents, or employees, in the case of the latter the job description of the employee defines the extent of authority. In the case of other functionaries the scope of their authority will usually be defined by a letter of appointment or agreement 'Permission' is a form of consent given by a competent authority prior to any activity being undertaken and is often equated with 'delegation'. When actions are taken without the necessary prior permission the entire formal decision structure of the organization is undermined. 'Condonation' is a form of consent given by a competent authority after an activity has been undertaken and due to retro-active or subsequent nature of the authority granted cannot be equated to 'permission' although the external results are often indistinguishable. In the event that a functionary performs an unauthorised (ie non-permitted) action and fails to secure condonation for the act, the organization itself may not be liable and the functionary may be held liable by the other party. Further the functionary who acted without authority should expect to face internal disciplinary action.
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| VEHICLES TURNING RIGHT ACROSS THE PATH OF ONCOMING TRAFFIC | |||
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On South African roads the most important traffic rule is 'to keep left.' Right of way is allocated first to pedestrians, followed by bicycles and finally motor vehicles. On a public road only one vehicle will at any one time have right of way, and this is normally the vehicle driving on a straight line. Vehicles which have stopped at traffic lights and are waiting for a green 'go' signal must not only wait for the green light but are also required to wait until it is safe to proceed. A green light does not indicate that the vehicle must go, it means that the vehicle may go if it is safe to do so. Vehicles going straight or turning left normally have right of way. Vehicles turning right, across the path of oncoming traffic do not have right of way and typically have to wait for (i) a green signal, (ii) that their route is safe and unobstructed, (iii) and may not interfere with other traffic going straight.
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| RESCISSION OF ADMINISTRATION ORDERS | |||
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Section 74Q of the Magistrates' Court Act 32 of 1944 as part of the scheme arranging the application for, granting of, and management of Administration Orders, allows for the re-opening of an Administration matter by way of application. Any party with an interested in the proceedings , including the debtor may so apply for the re-opening of the proceedings. Notice is given to all parties involved, including the Administrator and creditors. On good cause shown, the court may then suspend, amend, or rescind such an Administration Order.
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| ADMINISTRATION IN TERMS OF SECTION 74 | |||
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Section 74 of the Magistrates' Court Act 32 of 1944 allows for the protection of debtors under a Court appointed Administrator. In the event that a debtor cannot satisfy the demands of the creditors, typically due to hardship or excessive monthly repayments, the Court may upon application grant an order protecting the debtor. The costs of the Administration are then recovered from the payments made by the debtor to the Administrator. Due to the structure of the cost recovery of the adminsitration, creditors should start receiving settlements from the Administrator within nine months of the date of the Court order.
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| HOLDING OUT AS AN ATTORNEY | |||
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In South Africa an attorney must successfully sit the professional admission examination of one of the four Law Societies, and subsequently be admitted to practice as an attorney by a division of the High Court. An attorney is an official of the Court and as such the attorney's name appears on the official list of attorneys, known as the Roll, and kept by the local Law Society. Only persons duly admitted as attorneys are allowed to present themselves as attorneys and a person who is not an attorney and who holds out as such is guilty of a crime. In South Africa the terms 'attorney', 'attorney-at-law' and 'lawyer' generally have the same meaning. The English word 'barrister' or 'soliciter' have a corresponding meaning and are common in countries which are or were colonies of Great Britain, but are not in use in South Africa. The American word 'counsellor' is not generally used in South Africa, although Advocates are often referred to as 'Counsel', and not 'Councillor' which means a person sitting on a council.
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| COLLECTION COMMISSION | |||
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Collection Commission as charged by Attorneys is defined in the Magistrates' Court Act (32 of 1944) and is a professional fee calculated on the value of payments received by the attorney. This collection commission is usually limited to ten percent of the value of the payment received and subject to a maximum amount. As a professional fee only attorneys are entitled to recover the same from debtors. Persons who are not attorneys and who recover such collection commission (or other professional fees) from any person other than their own client is in contravention of the Attorneys Act and the Magistrates' Court Act and accordingly liable for repayment and may also have committed a crime.
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