Mairéad Edwards unravels the new Labour Court and Labour Appeal Court Rules, that were published in the Government Gazette on 3 May 2024

Mairéad Edwards presented a seminar titled “Coming to grips with the new Rules for the Labour Court and Labour Appeal Court (3 May 2024)” at the Rivonia Group of Advocates on 15 May 2024.

The new rules, once implemented, will make some important and far-reaching changes to the procedures in these courts.

Edwards, a member of the Labour Court sub-committee of the Johannesburg Society of Advocates (JSA) and previous acting Judge of the Labour Court, did a practical comparison between the old and new rules to assist practitioners.

The seminar was attended by more than 50 members of the JSA and the attorneys’ profession.

The slideshow of Edwards’ presentation can be accessed here.

Kevin Hopkins examines the consequences of Julian Assange’s possible extradition to the United States

Kevin Hopkins presented a seminar titled “The implications of the Julian Assange Case on extradition law, freedom of expression and investigative journalism” at the Rivonia Group of Advocates on 1 February 2024.

Julian Assange’s final appeal against his extradition from the United Kingdom to the United States will be heard on 20 and 21 February 2024. If extradited, Assange could face 18 criminal charges, and may be sentenced for up to 175 years, if convicted.

Hopkins examined the possible effect of the appeal on the development of extradition law, freedom of expression and investigative journalism, and how South Africa, as a country that has constitutionalised freedom of expression, might be affected.

In an article published in the Daily Maverick on 5 February 2024, Hopkins interrogates whether the exposure of corruption and criminality, and the exposition of war crimes by Assange, should be treated any differently from the same kind of exposure in the mainstream media. He argues that, if Assange is convicted in the United States, it may have a chilling effect on the freedom of expression and on investigative journalism.

The Rivonia Group Welcomes Barry Roux SC and Gabriel Cross as New Members

The Rivonia Group of Advocates is pleased to announce that Barry Roux SC and Gabriel Cross have joined the group from 1 January 2024 and 1 November 2023.

Barry Roux is a senior counsel who joined the Johannesburg bar in 1982, and took silk during 2000. His areas of practice include administrative law, arbitration, aviation, civil and criminal litigation, environmental law, insurance, medical negligence and personal injury.

Gabriel Cross is a former member of Group One Advocates and the independent bar. He completed pupillage during 2011 and conducts a general civil and commercial practice that includes alternative dispute resolution, property law, insolvency law and business rescue.

The group is excited to welcome Barry Roux and Gabriel Cross as new members.

Vicky Heideman discusses State Security Agency’s role in State Capture

Following on from her work with the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State (‘State Capture Commission’), the Rivonia Group’s Vicky Heideman has been investigating the shadowy sources of funding to the State Security Agency (‘SSA’) that allowed for its capture.

In his Final Report on State Capture, Chief Justice Raymond Zondo found that deliberate efforts were made post-Polokwane to capture national intelligence.  Furthermore, had the SSA not been captured, the capture of other state-owned entities that followed could have been averted.  Given these far-reaching findings, it is even more alarming that some of the Apartheid-era legislation which allows for secret funding of covert operations in the SSA remains in place.

In a series of two articles and a webinar with the Daily Maverick, Vicky discusses the highly problematic Secret Services Accounts and proposes some possible mechanisms to avert capture of intelligence services in the future. 

Rivonia Group congratulates Jan Langa

The Rivonia Group congratulates Jan Langa on his induction into the Mail & Guardian’s 2023 class of 200 Young South Africans.

As the Mail & Guardian notes, Jan is “a brilliant legal mind who has appeared in the courts on matters of public interest and matters which have warranted being recorded as reportable”.  The Rivonia Group cannot agree more.

Jan is also a proud South African committed to transformative constitutionalism.  The core idea of this broad concept of transformative constitutionalism being that we as a country, industry and as professions, respectively, must change in a democratic, participatory and egalitarian direction.

As Jan says:

“I would like to see more accountability and a leadership that is not afraid to lead and is proud to be South African.  There is a lot of good work that has been done over the years but in the same breath, I think as a nation we have lost our pride.  We have the tools to be a great nation such as the Constitution and other legislation.  What we lack is the political willpower to shun mediocrity and kill the biggest cancer we face as a nation, corruption.  I would like to see the spirit of pride in being a South African revived and our people living a better quality life with better access to basic needs such as healthcare, education, transport, electricity and ablution facilities.  I would also like to see more young people and women at the helm of organisations and institutions, moreover that they are supported to drive our great nation forward.”

The Rivonia Group is proud of Jan and all our junior members who continue to fly the Rivonia flag high.  

Supreme Court of Appeal changes its mind on appealability

Until recently, the locus classicus on appealability was Zweni v Minister of Law and Order 1993 1 SA 523 (A).  In that judgment, the Appellate Division held that three requirements had to be met in order for a judgment or order to be “appealable”:

  1. the decision sought to be appealed must be final in effect. This means it must not be susceptible to alteration by the court appealed from;
  2. the decision must be definitive of the rights of the parties; and
  3. the decision must have the effect of disposing of at least a substantial portion of the relief claimed.

Over the last decade, however, the Supreme Court of Appeal seems to have foregone the test in Zweni in favour of the constitutionally prescribed “interests of justice” standard.  Thus, in S v Western Areas Ltd 2005 5 SA 214 (SCA), the Supreme Court of Appeal held that a decision might be appealable even if it did not meet the requirements laid down in Zweni so long as the interests of justice required that it should nevertheless be subject to an appeal (at para 28).

Similarly, in Philani-Ma-Afrika v Mailula 2010 2 SA 573 (SCA), the Supreme Court of Appeal held that the facts of the case provided a “striking illustration of the need for orders…to be regarded as appealable in the interests of justice” (at para 20).

Because of these and other judgments, the assumption over the last decade has been that the interests of justice, and not Zweni, defined the test for appealability.  As Moseneke DCJ, writing for the Constitutional Court, said in International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 4 SA 618 (CC), “the Supreme Court of Appeal has adapted the general principles on the appealability of interim orders, in my respectful view, correctly so, to accord with the equitable and the more context-sensitive standard of the interests of justice, favoured by our Constitution” (at para 53).

Thus was born a new orthodoxy.  But, as pointed out by Quentin du Plessis in the Journal of South African Law, the budding orthodoxy had some issues.  For one, both S v Western Areas Ltd and Philani-Ma-Afrika were decided in the context of the Supreme Court Act 59 of 1959, which has since been repealed by the Superior Courts Act 10 of 2013.  Second, because section 17(1) of the Superior Courts Act 10 of 2013 expressly defines necessary conditions for the granting of leave to appeal, and does not make the interests of justice the standard for appealability.  Third, because the dicta in both S v Western Areas Ltd  and Philani-Ma-Afrika were obiter: in neither case was the “interests of justice” standard actually applied to determine the appealability of the decision in question.  And fourth, because section 167(6) of the Constitution expressly makes the interests of justice the standard for appealability to the Constitutional Court, but not to any other court.

The Supreme Court of Appeal has recently vindicated many of Quentin’s arguments.  In TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggins (Pty) Ltd and Others [2023] ZASCA 63, the Court held that “[r]ecent decisions of [the Supreme Court of Appeal] which may have been tempted into the general orbit of the interests of justice should now be approached with the gravitational pull of Zweni” (at para 30).

In doing so, the Court argued that the “interests of justice” standard has a specific constitutional provenance: section 167(6) of the Constitution, which governs appeals to, and only to, the Constitutional Court (at paras 25-26).  Unterhalter AJA, writing for the court, also argued that section 16 of the Superior Courts Act “determines to which court an appeal lies.  It does not define the class of decisions that can be appealed” (at para 22).  As it was put in the article referred to above: “Section 16(1) deals merely with the question where an appeal lies.  It does not deal with the question which decisions are amenable to an appeal.”

On the whole, the decision in TWK Agriculture Holdings is to be welcomed.  The “interests of justice” standard is too indeterminate to act as a reliable guide to litigants who wish to know whether their decisions are appealable.  On the other hand, the decision leaves unclear what role section 17(1) of the Superior Courts Act plays in determining appealability.  This is unwelcome.  A further clarificatory judgment may be needed. 

Meet our staff

Cerrie Tomassini

Cerrie took up the position of Rivonia Group’s Administrator in December 2019.  She is also the PA to Advocate Andrew Snider SC.  She has been in his employ since 2013.  Andrew and Cerrie joined Rivonia Group in July 2019. 

In 1989 Cerrie started working in the legal field with a small attorney as a secretary / girl Friday.  Cerrie then worked as a property manager for 3 years.  In 1998 she re-joined the legal field as a secretary / receptionist.  In 2004 she became a secretary to two directors in the litigation department of one of the big five law firms.   In 2009 Cerrie and her husband also opened their own restaurant which was sold in 2015.

Lingani Ngwenya

Lingani is the youngest of our staff members.  Since 2019 she ensures that our workspace is neat and tidy.  Lingani worked as a domestic worker prior to joining Rivonia Group of Advocates.  She recently obtained a certificate in data capturing and graduated in July in Office Administration. 

Thulisile Emmarentia Mokena (known as Catherine)

Catherine is our receptionist.  She has worked at several groups of advocates of the Johannesburg Bar.  Over and above her duties at reception, Catherine assists group members with administrative tasks like filing and the updating of legal text books.  She has been with the group since 2020.

Mpho Nonjelela

Mphoza has been employed as a tea lady since the inception of the group in 2017. During her spare time, she assists with reception duties, including switchboard monitoring.  Mpho previously occupied the same role at Group One Advocates.

Portia Zuma

“Posh Posh” is also employed as a tea lady.  She started working at the Rivonia Group of Advocates in 2017.  She also enjoys assisting with reception duties, including switchboard monitoring. 

We are very proud of Lingani

Lingani Ngwenya was employed by the Rivonia Group of Advocates in July 2019.  Her role was to ensure that the offices remain meticulously clean and to assist with providing beverages for the staff.

Lingani expressed an interest to better herself by doing a computer course.  Therefore, the Rivonia Group of Advocates enrolled and paid for her to do a business/computer course.

On 15 January  2022 Lingani started this course and after months of attending classes and hard work she graduated on 16 July 2022.

Lingani completed the following modules for her course:

Office Administration, Microsoft Word, Microsoft Excel, Windows and file management, Microsoft PowerPoint, Business English, Internet, Travel arrangements, Administrative, Speed typing and how to compile CV, Outlook, Call Centre and customer service.

We are very proud of Lingani and hope to use her new acquired skills in due course.  

The Rivonia Group is excited to have Dana du Plessis SC join as a member

Dana joined the Johannesburg Bar in 1990 and took silk during 2010.

He holds a BProc degree from the University of Pretoria and an LLB from the University of South Africa.

Before joining the Bar he completed his articles and was admitted as an attorney, conveyancer and notary.

He has a general commercial practice that includes banking, insolvency, company law, property law, building disputes, administrative law and environmental law. He is also a specialist in the field of medical negligence.

Dana has held numerous appointments as an acting judge and as an arbitrator in commercial disputes. He is on the commercial panel of AFSA.

Dana’s hobbies include scuba diving and offroading to neighbouring countries. He is also a permanently frustrated golfer.  

Garth Hulley SC joins the Rivonia Group

The Rivonia Group takes great pleasure in announcing that Garth Hulley SC is now one of its members.

Garth Hulley was called to the Bar on 7 July 1997. Two years after admission, he took up a post at the Constitutional Litigation Unit.  He took silk on 16 September 2014.

In January 2020 he took up an appointment as an evidence leader with the State Capture Commission where he was the leader of the Law Enforcement Agencies work stream.

His areas of practice include constitutional and administrative law, labour and employment law, commercial law, medical malpractice and personal injury law, aspects of municipal law and construction law.  He has been involved in many tender reviews both for and against state entities and works frequently with various aspects of the Public Finance Management Act and the Local Government: Municipal Finance Management Act.

He has been involved in a wide array of cases in areas ranging from criminal and labour law, on the one hand, to judicial independence and the constitutionality of municipal rates, on the other. He has appeared in Swaziland and Botswana.

He has acted as a Judge of the Labour Court and the High Court of Gauteng (Johannesburg and Pretoria) on numerous occasions and has written several reported judgments particularly in the Labour Court.