While most people try to avoid becoming embroiled in legal proceedings, there are some that seemingly cannot get through the day without their fix of issuing summons or launching some application. And no, this does not only happen in America or on television – even boutique firms in Cape Town get the odd enquiry from a person that wants to sue the Minister of Justice (and everybody else) for a R100 million because, ever since his father apparently shot him ten years ago on their front lawn to impress random girls walking by, everybody has conspired against him and caused him to lose his marbles. “Everybody” will inevitably also include the attorney who shall, after listening politely to his ramblings for an hour, decline the offer to represent him.

The ones that are dependant on attorneys are easy enough to stop – most attorneys simply won’t act on their behalf if it is clear that the intended legal proceedings are frivolous or vexatious. But beware the person with some legal background (usually an unfinished law degree or sometimes simply some self-taught knowledge of the court rules) that represents himself – they usually have fools for counsel.

Last year the Cape Argus reported of a Cape Town man that was apparently involved in 15 legal proceedings at the time, including several labour-related matters against his former employer, Mr. Delivery, proceedings The Cape Town International Convention Centre and a R300 million action against Media 24 after Die Burger published a report about him. The man was apparently a part-time law student that drafted his own documents.

Most attorneys or advocates who have been chastised in court by a judge or magistrate would admire the thick skin and tenacity of the average vexatious litigant. Continued lack of success and criticism from the bench just do not seem to stifle their lust for litigation. In reviewing the plethora of proceedings instituted by a particular set of litigants, the Court in Ernst & Young and Others v Beinash and Others 1999 (1) SA 1114 (W) characterised the proceedings, variously, as an abuse of Court procedure to wage a personal vendetta; proceedings launched without reasonable grounds constituting persistent and vexatious proceedings or proceedings which had the effect of being vexatious; proceedings aimed at harassing and inconveniencing the respondents involved in them; action launched recklessly and without any reasonable grounds at all and without any prospect of success; proceedings constituting an expensive source of inconvenience and aggravation in the relentless pursuit of the their ulterior purpose; and an irrational, unbalanced and reckless devotion to a vendetta they had decided to wage against their opponents. At that stage their tally was such: of the 45 different proceedings they had instituted 27 had been unsuccessful, they succeeded in one application for leave to appeal (although the appeal was later dismissed) and 17 matters were unresolved.

Luckily the Vexatious Proceedings Act (Act 3 of 1956) offers some manner of protection against these litigious fiends. The State Attorney or any other person may, in the circumstances set out in Sections 2(1)(a) and (b) respectively, apply for an order against a vexatious litigant to the effect he or she may not institute legal proceedings without the leave of the court. If that person then does institute any proceedings in contravention of the order, shall be guilty of contempt of court liable for a fine or to imprisonment for not more than six months.

But seriously, what would the practice of law be without the likes of Mr Fitchet in the saga of Fitchet v Fitchet 1987 (1) SA 450 (E)? Every now and then, for the sake of practitioners’ morale, we do need someone to claim that a random third person conspired with his ex-fiancée’s mother to assassinate him by driving his car out in front of Mr Fitchet while he was travelling down a hill on his bicycle, and thereby trying to cover up the attempt on his life as a motorcar accident; and, four years later when the driver emigrated to Australia (apparently because the details of the attempt on Mr. Fitchet’s life leaked out); the driver and the ex-fiancée’s mother then conspired to get the ex-fiancee’s mother’s attorney’s daughter to induce Mr. Fitchet to marry her solely in order to obtain false mental illness diagnosis, by getting Mr. Fithcet ill with drugs and lying to a doctor regarding his bahaviour; his wife then divorced him with a “summons filled with lies” and he lost everything.

The learned judge, to his credit, remarked that he was “satisfied that plaintiff’s claim against [Mrs. Fitchet] is one standing outside the region of probability altogether”.

The Minister of Trade and Industry, Mandisi Mpahlwa, published the new Standard of Training of Estate Agents Regulations, 2008 which will take effect on 15 July 2008. Compliance with the prescribed standards of training for estate agents is crucial in light of sections 34A and 34B of the Estate Agency Affairs Act, 112 of 1976, as failure to comply or to hold a fidelity fund certificate could mean that the agent may not be entitled to remuneration work done.

From the effective date of 15 July 2008 anybody wishing to become an estate agent will have to serve as an intern estate agent under a principal estate agent for one year after form the date that the intern was first issued with an intern fidelity fund certificate by the Estate Agency Affairs Board (“the Board”).

An intern estate agent may not perform any act as an estate agent without the active supervision and control of a principal estate agent (or an agent that has held a fidelity fund certificate continuously for three years) or unless the intern has disclosed the fact that he or she is an intern estate agent in all printed material relating to the intern (except authorized advertisements in the press).

Another highlight is the requirement that intern estate agents will not be allowed to complete or draft any documentation relating to a transaction negotiated by him or her, unless a principal estate agent (or an agent that has held a fidelity fund certificate continuously for three years) is present and certifies on the documentation in question that it has been completed in his or her presence.

A person will only be allowed to register as an estate agent once they have complied with the internship requirements and the educational requirements set out in the Regulations. From the abovementioned effective date all non-principal estate agents will have to obtain the NQF (“National Qualification Framework”) Level 4 qualification called the Further Education and Training Certificate: Real Estate, and the NQF Level 5 qualification called the National Certificate: Real Estate is prescribed for all principal agents. These certificates will be prerequisites for the Professional Designation Examination (“PDE”), which is needed to be registered as a full status estate agent by the Board and to obtain a fidelity fund certificate.

The good news for existing agents is that the Regulations prescribe a process of recognition of prior learning (“RPL”). This process will include the identification, assessment and acknowledgement of skills and knowledge which an estate agent may have, whether it was obtained through formal training and education or experience on the job, and will take place within the context of the abovementioned certificates.

Furthermore, agents who are registered as principal or non principal agents on the effective date and that have continuously held a full status fidelity fund certificate issued by the Board for a period of not less than 5 years will be exempted form the PDE.

In addition to the above, the Regulations provide that the Board may prescribe any reasonable Continuing Professional Development requirements as contemplated by the NQF.

The full Regulations can be viewed here: http://www.info.gov.za/view/DownloadFileAction?id=82569

The Estate Agency Affairs Board’s website (www.eaab.org.za) has further information on the new training requirements, based on the draft regulations published in January this year.

The rather inelegantly named Prohibition of Mercenary Activities and Regulation of Certain Activities in Country (sic) of Armed Conflict Act No. 27 of 2006 (“the Act”) was published in the Government Gazette of 16 November 2007, but will only come in to operation on a later date to be determined by the President by proclamation in the Gazette.

It repeals the Regulation of Foreign Military Assistance Act No. 15 of 1998 (which led to the dissolution of the notorious Executive Outcomes company), and seeks principally to do the following:

- to prohibit mercenary activity;

- to regulate the provision of assistance or service of a military-related nature in a country of armed conflict;

- to regulate the enlistment of South African citizens or permanent residents in other armed forces;

- to regulate the provision of humanitarian aid in a country of armed conflict;

- to provide for extra-territorial jurisdiction for the courts of the Republic with regard to certain offences.

From the above it is clear that the ambit of the act is rather wide, and that it goes much further than just criminalizing mercenary activities, but it is certainly in response to the turbulent international climate. While there are no accurate statistics available, it is generally believed that as many as several thousand South Africans are currently employed as security contractors or private military personnel in Iraq alone. The Iraq Coalition Casualty Counter (www.icasualties.org) statistics show that at least twenty one South Africans employed as security contractors have been killed in Iraq during the period from 31 January 2003 to 28 August 2007.

While the Act prohibits direct or indirect mercenary activities (participation in an armed conflict as a combatant for private gain) outright, it stipulates that no South African may directly or indirectly provide any assistance or render any service to a party to an armed conflict without consent of the National Conventional Arms Committee.

Similarly, no South African may enlist with any armed force (other than the SANDF) without the committee’s authorisation. Ironically however, this authorization may be revoked as soon as the person to whom the authority was granted takes place in an armed conflict while enlisted with any other armed force.

Even the provision of humanitarian assistance in an armed conflict is regulated, in that no South African humanitarian organization may provide such assistance unless such organization has been registered with the Committee for that purpose.

Perhaps the most interesting aspect of the Act is the introduction of extra-territorial jurisdiction for South African courts. The Act stipulates in peremptory language that any offence under this act committed outside the Republic by a South African citizen or resident (or company or body of persons) must be regarded as having been committed in the Republic, and the person who committed it may be tried in a South African court. Likewise, any person found in South Africa that participated in mercenary activities outside our borders against either the Republic, its citizens or residents, may be prosecuted here, as if the crime was committed in South Africa.

Another interesting clause provides that the courts may, upon the convicting any person of any offence in terms of the Act, declare “any armament, weapon, vehicle, uniform, equipment or other property or object in respect of which the offence was committed or which was used for, or in connection with the commission of the offence” to be forfeited to the State.

Since there are, for example, numerous South African citizens currently enlisted in the British armed forces, imagine for a moment the following scene as an illustration of the potentially extreme consequences of this Act: a young South African enlists with the Royal Navy, works his way into Royal Marines and is posted to 9 Assault Squadron, which is permanently-embarked on the HMS Ocean, an amphibious assault ship over 200 meters in length with a displacement of 21,578 tons, and is soon shipped off to Sierra Leone where he participates in suppressing rebel activities in a bloody civil unrest.

Even if our young soldier obtained the authorization of the Committee before enlisting with the Royal Navy, such authorization would most likely be revoked due to his involvement in an armed conflict as a member of an armed force other than the SANDF. The young sailor may now be prosecuted in Pretoria for acts performed in Freetown, and the court may declare the HMS Ocean (presumably with its fleet of helicopters) to be forfeited to the State…