The decision to mediate, and when, can be a matter of strategic and fundamental importance in resolving a dispute and should be given full consideration in each situation. Even where mediation is prescribed, by court or contract, for example, a considerable amount of preparation, planning and strategy is required. This is where a legal representative who is fully versed in the mediation process can prove to be invaluable.
Unfortunately, in South Africa, and in many other countries around the world, the mediation process is often considered to be a ‘soft option’. This is quite untrue. Mediation requires a significant amount of hard work from participants and their representatives to achieve an outcome that is acceptable to both.
Your legal representative should properly understand the benefits of mediation, how it can be used to resolve a dispute, and should know when mediation is appropriate. Some legal representatives may even be able to guide you through the mediation process.
Some of the roles that legal representatives play in mediation are that they:
The success of mediation depends, to a large extent, on strict confidentiality and on your willingness to participate in an active way.
It’s a good idea to involve your attorney, particularly if he or she is open to being collaborative and is also open to helping you to solve the issues at hand.
Questions are being asked about how the confidentiality provisions of the Tax Administration Act are aligned with legislation providing for whistle-blowers and freedom of expression.
The questions arise in relation to the legal action launched by South African Revenue Service (Sars) commissioner Tom Moyane against author Jacques Pauw on the grounds that he unlawfully divulged information about the tax affairs of individuals including President Jacob Zuma.
A tax law academic - who did not want to be named - was emphatic that the act not only prohibited the disclosure of information about taxpayers by the tax authority, but also prohibited individuals from doing so when they came into possession of information about the tax affairs of others.
The secrecy provisions of the act were stringent and applied to Sars officials and all other individuals, he said.
If Sars wanted to report a crime to another authority, it would have to go through prescribed processes.
However, what makes the current situation tricky is that the whistle has been blown about lack of action by Sars over the tax obligations of the president.
Cannot answer questions
It might be that this information would have to be channelled through the tax ombud.
However, the office of the ombud says it cannot answer questions on the matter as it is before the court.
South African Federation of Trade Unions (Saftu) general secretary Zwelinzima Vavi said the law should not be used to hide a crime. If Pauw had contravened a clause of the act by revealing that crimes had been committed, then, said Vavi, the act must be urgently amended to bring it in line with the Constitution, which provided for freedom of expression.
"We are sure that this legal action is not just an attack on Pauw, but an attempt to intimidate the media and whistleblowers and is an assault on the constitutional right to freedom of speech," he said.
Clear and compelling public interest
"This action is a clear attempt to punish Pauw for publishing damning evidence including that president Zuma was paid a R1m a month salary by one of his cronies for at least four months after he became president in 2009," he said.
By bringing the legal action, Moyane had conceded that what Pauw had written in his book The President's Keeper was true, Vavi said. This meant that Zuma had broken the law.
Saftu agreed with the author's publishers that there was clear and compelling public interest in his book that revealed that Zuma had perverted SA's law enforcement agencies to hide the fact that he was not tax compliant and that he had received a salary from a business of his backer Roy Moodley while in office, Vavi said.
DA deputy finance spokesman Alf Lees said that in taking court action against Pauw, Moyane was trying to execute the messenger, instead of dealing with the substance of the disclosures in Pauw's book.
Intended to intimidate
"The Sars court application, under the hand of Tom Moyane, is clearly intended to intimidate any other South Africans from exposing matters of public interest," Lees said.
"There is nothing confidential about the massive R145.2m estimate of taxable fringe benefit that accrued to President Zuma when the state rebuilt his Nkandla residence," he said.
"Unless SARS deals with this revelation as well as the many other revelations publicly and transparently, the reputation of senior Sars executives and consequently SARS itself will not be restored.
"This reputational damage will continue to have a negative impact on taxpayer morality and the consequent resistance of taxpayers to pay taxes due," Lees said.
Wife-killer Christopher Panayiotou could go to prison for the rest of his life – a fact that quickly sank in yesterday as Judge Dayalin Chetty found him guilty of masterminding the murder of his wife, Jayde.
“Guilty, guilty, guilty” – the words Jayde’s family had waited so long to hear echoed across the packed courtroom, eliciting clapping and cheers from the gallery.
Panayiotou’s face reddened and his family seated directly behind him in the Port Elizabeth High Court began to cry.
In a mammoth judgment that lasted much of the day – which was also Panayiotou’s 31st birthday – Chetty convicted him of murder, while hitman Sinethemba Nemembe, 28, was found guilty of murder and robbery with aggravated circumstances, and Zolani Sibeko, 35, was found guilty of conspiracy to commit murder.
After the judgment, Jayde’s younger sister, Toni Inggs, said her family was elated with the outcome.
“My sister can finally rest and we truly hope that they get the time they deserve with sentencing.”
Inggs said she was overwhelmed and forever grateful to the strangers who had now become their heroes.
“Nothing will bring Jayde back or take away the hurt but right now, in this moment, we feel overwhelming joy and appreciation.”
The men will be sentenced on November 17.
Defence Advocate Terry Price SC has already indicated that he intends bringing an application for leave to appeal against the conviction.
Uitenhage teacher Jayde, 29, went missing from outside her home in Kabega Park, Port Elizabeth, on April 21 2015. Her body was found in Kwa- Nobuhle the next day.
Chetty said an inference could properly be made from the gun residue found on her hand that, in her final moments, she had begged for mercy.
“That act of supplication, however, elicited a bullet to her head. The medical and ballistic findings compel the conclusion that this was an execution-style murder.”
Chetty made some key findings during his mammoth judgment yesterday, including that:
Turning to the sting video in which Panayiotou and Siyoni candidly discussed Jayde’s murder, Chetty said the police’s conduct had not gone beyond providing an opportunity for Panayiotou to commit an offence.
Panayiotou’s pre-meeting utterances to Siyoni indicated quite clearly that he recognised the cat was almost out of the bag and the decision to meet was to ensure that it remained inside.
Furthermore, Chetty said, investigating officer Captain Kanna Swanepoel had not needed prior authorisation from the Director of Public Prosecutions.
Price had on more than one occasion changed tack in trying to have the video disallowed.
“It is clear the evidence procured [in the car] established Panayiotou’s complicity in Jayde’s murder beyond a reasonable doubt.”
Cape Town – Henri van Breda's murder trial is expected to resume in the Western Cape High Court on Monday with the testimony of a blood spatter analyst who had been booked off sick.
Last month, the State had asked for another postponement as its police expert witness Captain Marius Joubert was ill.
Van Breda's defence lawyer, Pieter Botha, had said that his client was running out of funds and could not afford another postponement.
Van Breda, 22, pleaded not guilty to axing his parents and brother to death, seriously injuring his sister Marli, and defeating the ends of justice.
He alleged that an intruder wearing a balaclava, gloves and dark clothes was behind the attack, and that he had heard other voices of people speaking Afrikaans in their De Zalze Estate home in January 2015.
Van Breda claimed that, after a fight with the axe-wielding intruder who was also armed with a knife, the man had escaped.
But the investigating officer, Sergeant Marlon Appollis, had told the court that no one matching the accused's description of the axe man had ever been found.
He used police informants and media houses without success to try and find the attacker.
Marli van Breda will not testify for the State in her brother's trial.
Just 16 at the time of the attack, she sustained severe head wounds and a severed jugular. She was hospitalised for six weeks and then treated at a rehabilitation centre.
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