About Duncan Okes

Introduction

I practise in the fields of business law and litigation and have done so now for some 34 years.


Experience

By way of training and experience:

• having completed the BA LLB degree, I practised in the criminal courts as a state prosecutor;
• following completion of my articles of clerkship at Denys Reitz, Sandton, (now Norton Rose Fulbright South Africa) I remained on as a partner;
• to further my experience, I completed my pupillage through the Johannesburg Council of the Bar, and practised as an advocate at the Johannesburg Bar;
• in turn, I founded Sampson Okes Higgins Incorporated which, over the years, matured into a mid-sized law firm in Sandton which specialised in labour, property and business law and litigation:
• following further and recent specialist studies at university, I now practice predominantly from Sandton and Cape Town.  I am a member of the Law Society of the Northern Provinces of South Africa; and
• my interests include law, farming phyto-medicinal plants in Tulbagh and the study of music.

Subject matter of the practice

• Whilst the subject matter of business law and litigation is vast, my core focus concerns the law pertaining to:
• business structuring, negotiation and the conclusion of shareholder agreements and other business relationships including as to agency, partnership supply arrangements and other contractual structuring;
• shareholder and director authority, liability and relationship issues including as to the establishment, maintenance and dispute resolution thereof with particular regard to the new Companies Act 71 of 2008;
• unlawful competition and restraint of trade including statutory unlawful competition;
• administrative law being the law pertaining to the exercise of State power including as to the award of tenders, the allocation of rights in land, zoning issues, land restitution issues, expropriation, environmental issues and related procurement practises carried on by organs of State; and
• dispute resolution, be it by way of High Court litigation or arbitration proceedings.

Client base

I have over the years, provided legal services to a wide body of clients ranging from "start ups" to listed entities and organs of State through to Governments and Parliament.

Modern trade does not confine itself to definitional niceties concerning jurisdiction.

I have travelled Africa widely, particularly in west and sub-Saharan Africa concerning issues relating to for example the mining, telecommunications and general commercial industries.


Approach

The articles that follow develop what I believe to be the most important concept in all of law, the concept as expressed to me, then a junior advocate, by the senior Judge of the day who, without even sitting down, dismissed my motion with costs and a warning that "a good story does not make up a cause of action".

As Bob Dylan's "Blowin in the Wind" requires certain chords to be played in a given sequence, so too must a "cause of action" be disclosed and played out in a legal suit.

Whilst changing chords and sequences may well still offer up a good song, unless the cords and sequences presented by Bob Dylan are followed it “aint” Blowin in the Wind.

Similarly, certain facts need to be disclosed to make up a successful cause of action.  Absent a proved cause of action, and you are left with "a good story" and as in my case above, an adverse costs order.

As will further appear from the articles that follow, our law reports are filled with "good stories" and adverse costs orders. 

In many instances, however, had a different cause of action been selected and pursued, a different outcome may well have been achieved.

The field of criminal law provides a clear example.  Fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another.

The "chords" which need to be played, being the elements which make up the crime, and which need to be proved are thus:

• a misrepresentation;
• prejudice or potential prejudice;
• unlawfulness; and
• intention.

Miss one of these elements and you are out.  Civil law follows the same principle i.e. when seeking to prove a contract, a breach, specific performance, damages or otherwise.

Similarly, unless you prove proprietary interest in a restraint or unlawful competition case, you are faced with a non-starter, the central reason why many of these categories of claim fail.

In turn, the same principles apply when you are called upon to disclose a defence.

Pleading correctly also makes for good economics. Endless days in court can be avoided simply by "pleading right".


Conclusion

It is in the selection of the correct cause of action where clients struggle, as do lawyers.  The articles show this!

The subject matter of the articles that follow are selected from topics which I deal with on a reasonably regular basis. 

Any comment will be appreciated.

Regards

Duncan Okes