Where has all the private law gone?

I vaguely remember expressing the concern earlier in the year that that this constitutional sh*t might be contagious. Prophetic words, if I look at the posts of my fellow bloggers the last couple of weeks (for Voet's sake indeed). So today I am taking one for the team - where has all the private law gone?

Law 101 - private law is that part of the law which regulates the relationships between individuals. A lot of the rules of private law are aimed at protecting the weaker party in a transaction and public policy plays the same role, but to what extent does, and perhaps more importantly, should private law be used to protect individuals against their own stupidity? (When I say stupidity I don't mean getting 10% in wood work, I mean signing things which you don't understand, which is something we all do.)

This is of course not a new question. Afrox, Brisley and Barkhuizen are all cases which dealt with the enforceability of contractual terms freely entered into by individuals (I say freely, but of course some are more equal than others when it comes to standard term contracts.) and all involving a challenge on the enforceability of those terms on Constitutional grounds. In Barkhuizen the majority held that it would not be appropriate to test the validity of a term against the Constitution directly, but instead that it still a matter of determining whether the term is against public policy. In the years B.C. (Before Constitution) preference was given to sanctity of contract above other public interests. This approach was approved by implication in Barkhuizen says Tomas Floyd in Chapter 7 of The Law of Contract in South Africa (2010) at 176.

Having said that I also recall Cameron AJ (as he then was) saying (at last year's 'saamtrek' of Students for Law and Social Justice) that the facts which were placed before the court in each of these cases did not support a finding of invalidity based on unequal bargaining position and such same considerations - hint hint. The fact remains that our courts have always followed a conservative approach when it comes to the invalidation of contracts which were freely concluded (some say not part of the court's inherent equitable jurisdiction, but I will not get into what Justinian would have done).

But not for long - in comes Part G of the Consumer Protection Act which, by the look of things, gives the courts the power to strike down terms which are unfair, unreasonable or unjust. The courts must look at the nature of the parties, their relationship, their relative capacity, education, experience, sophistication and bargaining position.

So yes, it looks like we are going to start protecting people who fall prey to the small print (I might finally be able to cancel that gym contract. Oh no, no retrospective effect *&^$%##@*.). But the question remains, should we? Stay tuned...

(Or share your thoughts. Dave says you can now post anonymously which means that you do not need to open an account. So come all you capitalists - put your mouth where your money is...)

Call for t-shirt designs

Julian Jonker has just let me know that a prominent t-shirt designer/manufacturer has expressed interest in a t-shirt relating to last week's Chumani Maxwele alleged zapping of President Zuma. They are looking for designs along the lines of having a zap sign in the front with the right to freedom of expression reference on the back.

I think this is a great response to the incident since its a very public way of reclaiming freedom of expression without having to go to court.

If you are interested in submitting a design to them send me an email at david(dot)watson(at)uct(dot)ac(dot)za with the design or any questions you may have. I have the creative juices of a placid rock so I won't be submitting anything but I would really like to see a t-shirt like that.

South Africa not as bad as many South Africans think...

2010 is my seventh year as a foreigner living in South Africa. All through the time that I have been here, I have very often heard how the ANC government is chided with almost any and every negative utterance that a livid and incensed tongue can roll out. Remarks about the ANC’s governance are habitually downbeat and derogatory. They focus on the ruling party’s shortcomings and seldom on its achievements. The personal ills of its leaders are used to demonstrate the ills of the government.

During the four years that I spent in the Eastern Cape, a supposed stronghold of the ruling party, various people from poor backgrounds such Centani, Comfimvaba, Cala and the like, in Transkei to those from affluent suburbs of Port Elizabeth, Port Alfred and so forth in Ciskei, were all synonymous in their pessimistic appraisal of the ruling party’s governance. In the Western Cape, this contempt culminated with its loss of the Western Cape province to the DA in 2009.

I have spent some time in Gauteng and KwaZulu-Natal, driven past the Free State, Mpumalanga, Limpopo and I can testify that unhappiness with the ANC abounds. Paradoxically though, the ruling party still enjoys majority support among the electorate. The feeling among those that support it is that there is not a better alternative – the recently formed Cope is seen as a party of rebellious and bitterly disgruntled power hungry former ANC stalwarts who were deposed from leadership at Polokwane and as such, supporting it is akin to betrayal. The DA on the other hand is still seen by some as a racial party owing to the domination of its leadership and membership by whites. The other political parties are seen as too small to vest any evocative influence on governance in South Africa and that leaves many people with little choice except the ANC. Scorn however for the ANC government abounds.

For a person who comes from a country whose government has been labeled with various euphemistic ontologies such as predatory, rapacious, disastrous, brutal, military, repressive and so forth, with palpable reasons for the labels, I find the ANC’s chiding a bit overly harsh sometimes. This is not to restrain people’s views against bad governance and poor service delivery. Certainly where the government errs in governing, the general populace has every right to express their unhappiness because those in charge of service delivery were voted into those positions to deliver services to the electorate. However, I personally think that some of the expressions of this unhappiness are unwarranted, a bit overboard and sometimes uninformed and often misdirected.

A good example of the misdirection of unhappiness at the ANC government relates to the topical issue of nationalization of the mines. Up until President Jacob Gezeyihlekisa Zuma responded to it in parliament, I did not know that it was not government policy. I slipshodly never investigated the whole nationalization debate. I just sat and listened as friends and strangers hotly debated it. People talked about it everywhere and I was convinced the government was doing something wrong otherwise not everyone would be this unhappy. Lo and behold, it was only after Gezeyihlekisa responded to it in parliament that I knew the issue had not been raised by the government. Even now, I don’t understand what the hula baloo is all about. It was raised by Julius Malema and whoever has an issue with it should raise it with Julius Malema. To me, that sounds pretty simple. To go on and start lambasting the government regarding nationalization is certainly misdirected because like Gezeyihlekisa said, it is not government policy.

You would have probably heard about the destruction of people’s homes in Zimbabwe under the notorious operation Murambatsvina in Zimbabwe. I am a victim of that dreadful operation. My late parents left me a 3 bedroomed house on a piece of land measuring 35m by 65 m (2275m²). I remember that fateful day when I was at school, getting a phone call from a neighbor informing me that they were destroying the house. I got onto the first bus in the morning and when I got there, I found ruins. My inherited property was everywhere and to make matters worse, I was informed that I owed the government an equivalent of R10 000 for its labour in destroying the house. After proving to them that I could not afford it as I was only still in school, I remember the chilling declaration by the council messenger telling me that they were going to repossess the piece of land where my house had been.
Here in South Africa, the government is literally parceling out RDP houses to poor people at absolutely no charge!! And yet people are still not happy! How paradoxical. One government destroys people’s houses and sends them to live on the streets and the other builds people houses and parcels them out at absolutely no charge and yet people are not happy?! I have heard all about how poor quality the RDP houses are but hey, stop and consider what is happening elsewhere in Africa. I can’t help feeling that South Africa is not as bad as many people think it is.

Today (22.02.10) I read an article in the CapeTimes where Police Minister Nathi Mthethwa was urging the police and community leaders to keep politics out of crime. In the article, the one utterance by the minister that really caught my attention was, “I will not allow the police to be involved in politics.” Immediately, this excited memories of how Augustine Chihuri, the Zimbabwean Police Commissioner vowed in 2000 that he will never recognize any other person as president except for Robert Mugabe. To prove and consolidate his views, he allowed the police to attack all opposition party supporters and turned a blind eye against reports concerning crimes by ruling party supporters. Police vehicles were used to transport ZANU PF supporters as they perpetrated inexplicable orgies of violence at opposition supporters. The Zimbabwe Republic Police became a military wing of the ZANU PF and so when I read today that Nathi Mthethwa vowed never to allow this politicization of the police force, I just could not help but admire the man. This I say because I experienced and witnessed first hand what happens when the police gets politicized. Yes, the South African police has its own flaws, crime statistics are high, criminal conduct is rampant, corruption abounds but utterances such as the one by Nathi Mthethwa surely deserve praise.

It is an open secret that in the whole of Africa, South Africa is the only country that constitutionally recognizes same sex partnerships. In fact, same sex partnerships are criminalized in most of Africa. We all know about same sex partners who are facing possible jail terms in Malawi, Uganda and Kenya. In other African countries, the offence is punishable by death! Surely, such liberalism in South Africa ought to be lauded.

When I initially read about the UCT student who gestured ‘inappropriately’ to Gezeyihlekisa and was briefly 'ruffled' up by part of the president’s VIP protection team, I did not see anything unusual. In fact, I did not even finish reading the article because nothing felt unusual to me. You insult the president, you have to expect some chastisement of sorts – this is Africa. However, when I got into the office on that day, the atmosphere was awash with discussions of the story. There were even suggestions of a solidarity march for the UCT student. It was only then that I realized that South Africa is not Zimbabwe or any other African country. Here, people enjoy freedom of expression and it is an enshrined constitutional right!
In Zimbabwe and some other African countries, if you are suspected (without proof even) of harboring negative thoughts against the President, if you are lucky, the least you should expect is some serious thrashing from the police otherwise the majority of people just disappear, some get locked up for months on and others are murdered even. When I heard that the UCT student had simply been interrogated and locked up for a night, I thought to myself , ‘Surely, South Africa is not as bad as many South Africans think.’ No harm came to this guy and had he been in some other African country, the ending of the story would have indeed been different.

If you are reading this and you are a South African, please note that your democracy is the envy of many and a dream of countless Africans. Your country is not as bad as some think it is. There are so many admirable things about it and while it is a young democracy, it is way way incomparably much better than the rest of Africa. Having spent some time in Europe, I can argue that it is even better than some Eastern European countries.

Law graduates barely able to read but certainly able to blog

A report by The Times claims that a commission 'found that 70% of [UCT 4 year LLB students] couldn't calculate even simple tasks. They emerged without the ability to research legal documents or use a computer and the Internet". Really?

Although I do not have the statistical evidence that the Law Society of South Africa claims to have, anecdotal evidence suggests that this statement is unfounded. Some of the top graduates last year were 4 year LLB students. This statement offends those who have successfully gone through this programme, as well as the lecturers who have taught them. By stating that 70% of this group are incompetent, the article implicitly suggests that the UCT law faculty, and necessarily all those associated with it, is allowing substandard students to graduate.

While I agree that there are inherent flaws with the 4 year LLB and that it should be reconsidered, I sincerely doubt the accuracy of these statistics. There are certainly students who arrive at the start of their LLB who lack basic numeracy and literacy skills, but by the time they leave they are definitely proficient in these areas. I would like the Law Society to explain how it arrived at a figure of 70%.

I must apologize for this short post. It appears that I am having difficulty with this simple task.

Albie Sachs on his own judgment

"I reread my judgment and couldn't understand it" - Albie Sachs when referring to his dissenting judgment in the South African National Defence Union case.

This was from a very interesting panel discussion I attended yesterday. I will put some notes up from the talk later today and link to the podcast of the event.

People who know me well know that I have great reservations about many of Sach's judgments, the usefulness thereof for lower courts and the general lack of guidance they give to laypeople. So it was with much pleasure that I heard Sachs make that comment.

Malemization of the mines

Yesterday Julius Malema again called for the nationalization of the South African mines. This proposal has polarized people across the political spectrum. Yet a close reading of the statutes currently regulating minerals in South Africa shows that Malema could probably achieve most of his goals without even changing the law.

The Mineral and Petroleum Resources Development Act (MPRDA) is the statute that currently regulates mining in South Africa. It has provisions that in almost any other country would probably be called nationalization. Section 3 of the MPRDA states:

3. (1) Mineral and petroleum resources are the common heritage of all the people of South Africa and the State is the custodian thereof for the benefit of all South Africans.

(3) The Minister must ensure the sustainable development of South Africa’s mineral and petroleum resources within a framework of national environmental policy, norms and standards while promoting economic and social development.

The exact implications of section 3 are unclear. However, a few things are clear:

1. Whoever owns the minerals and the mines has an obligation to the people of South Africa to ensure that those minerals are extracted for the benefit of South Africans.
2. The State has an important role to play in ensuring that mineral wealth is equitably distributed in light of social and economic purposes.

Section 3 makes a more subtle point. It shows that the people of South Africa are to be the beneficiaries of the mineral wealth rather than the South African government. People often conflate the interests of South Africans with the interests of the government.

If you keep reading the MPRDA you will immediately notice that all of the provisions relating to the award of minerals rights and licenses include extensive provisions protecting the public interest. These include ensuring that the environment is taken care of, local communities benefit from mining developments and companies pay very large royalties to the state.

Ultimately, what matters to the people of South Africa is not whether they own the mines or the minerals. What matters is how much wealth is generated by the mines and whether that wealth is spread equitably between the people of South Africa. This distribution can take place through employment, welfare grants, public works or other measures.

The MPRDA already allows for the State to ensure that both of these considerations are given effect. Companies that are granted mining rights may only mine if it benefits South Africa.

However, Malema persists in calling for nationalisation rather than working within the existing framework. There are a few possible reasons this may be the case. It may be that the existing framework genuinely doesn’t work as well as nationalization. This may be the case but I haven’t seen any reporting on the substantiation of this point. The ANC Youth League’s policy document seems to reason as follows: South Africa has failed to achieve certain objects thus the MPRDA is at fault. This claim is not substantiated. Often the failure to achieve the objects the ANCYL wishes to achieve stem from government not placing proper conditions on the extraction of the minerals rather than on the framework created by the MPRDA.

However, I have a suspicion that Malema’s commitment may simply be because calling for nationalisation has greater rhetorical force than working within an existing framework. Or Malema has, without proper consideration of the existing framework, proposed an alternative and pride now keeps him from considering less radical approaches.

The day that freedom of expression took a bashing

A joint post by Calli and Emma:


In what smacks of an apartheid-style arrest and interrogation, UCT sociology student Chumani Maxwele was arrested and taken to both the Rondebosch and Mowbray police stations before being held in a cell at the Wynberg Magistrate’s Court for merely gesturing at the presidential convoy. During his 24 hour period in custody, Maxwele had his house and personal belongings searched by police officers and he was questioned about his political affiliations. While conduct like this may be common place in other, more censured, parts of the world, it has no place in a constitutional democracy that expressly enshrines the right to freedom of expression in section 16 of the Constitution.

The police have justified the arrest on the basis that Maxwele allegedly showed his middle finger to the convoy, and that by doing so he committed the common law crime of crimen injuria. However, this would constitute a pretty stretched application of the elements of this crime. For an act to amount to crimen injuria it must unlawfully, intentionally and seriously infringe on the dignity of another. It is highly doubtful that gesturing to a passing convoy would meet this definition.

The act isn’t unlawful; no law exists, in either statutory or case law, which explicitly prohibits this kind of behaviour. As Pierre de Vos remarked, "If showing a middle finger was a criminal offence, half of South Africa would find themselves in prison." Whilst freedom of expression is not absolute and can be limited, it is not easily limited. Courts are very careful to weigh the issues and strike a delicate balance between freedom of expression and any right that is infringed as a result of expression. The denting of a few egos would unlikely constitute sufficient grounds to clamp down on expression.

In terms of intention, one can argue that the intention to be rude and show displeasure isn't the same as the intention to infringe the dignity of another. Further, and most significant of all, is the fact that the act has to seriously impair the dignity of another. Zapping someone as they drive past doesn't reach the threshold of severe impairment to a person's dignity - possibly to their pride, or their sense of importance, but not to their dignity.

The police also argued that their actions were justified due to the fact that Maxwele resisted the arrest. However, this too is without legal basis because Maxwele’s actions were justified in law - everyone has the right to offer reasonable resistance against an unlawful arrest. Case law has established that the person who is being arrested ‘may assault anyone who tries to arrest him or her unlawfully and may liberate another who is unlawfully arrested’.* When it comes to arguments over whether or not the arrest was in fact lawful the burden falls on the state to prove lawfulness.**

The remarks by the spokesman for the Police Ministry, Zwele Mnisi, are also particularly troubling. He states that ‘in terms of the law’ no person is permitted to use foul language or swear at another individual. We have struggled to find the ‘law’ that Mr Mnisi is referring to and when pushed further, he was similarly unable to offer a direct reference, stating that he was not aware of the ‘specific Act’ but added that ‘morally, you just can’t swear at people’. Well we certainly weren’t aware that we had begun enforcing morality directly (perhaps this is something else that has happened in terms of an unknown Act?). While the arguments around the separation of law and morality warrant a separate blog post entirely, it suffices for now to say that the two cannot simply be conflated as Mr Mnisi has done – merely because something is considered to be immoral (which, if we are honest, the waving off, or even zapping, of the presidential cavalcade would probably not be considered) it is not automatically illegal (and vice versa). While there are several instances where that which is forbidden by law may be considered immoral, saying that something is immoral is by no means a simile for saying it is illegal. A man cannot be arrested, interrogated and have his property searched for actions that an executive spokesman classes as ‘immoral’ and which have, as illustrated above, no basis for being considered illegal.

The fact that Maxwele’s conduct could not be considered illegal in any way makes his arrest and subsequent custody unlawful. Not only was his right to freedom of expression trammelled upon, but his right to freedom and security of the person, enshrined in s 12(1) of the Constitution was similarly infringed. It is possible that the state may now be faced with a claim concerning both his wrongful arrest and the unlawful search of his property from an aggrieved citizen who will probably not be short on offers of legal representation and support from lawyers eager to defend both Maxwele’s constitutional rights and in turn, the right of all South Africans to free expression.

For more information on unlawful arrest see this.

* R v Kleyn 1937 CPD 288 293; R v Karvie 1945 TPD 159; R v Moloy 1953 3 SA 659 (T) 661; R v Folkus 1954 3 SA 442 (SWA) 445H.
** R v Karvie supra 159 163; R v Ntanzi 1948 1 SA 1121 (N) 1129; R v Folkus supra; Brown v Deputy Commissioner of Police, Natal 1960 2 SA 809 (N). In R v Mofokeng 1954 4 SA 86 (O) and R v Henkins 1954 3 SA 560 (C) the contrary view stated in R v Msuida 1912 TPD 419 was not followed. See also Union Government v Bolstridge 1929 AD 240 244

Rick Snell on improving your teaching

Yesterday I attended a very interesting talk by a visiting academic named Rick Snell that I would like to share. Mr Snell talked informally on a few aspects of both Freedom of Information as well as the teaching of law. I thought I would share some of his thoughts on the teaching component and do a second post on freedom of information.

Mr Snell is a Senior Lecturer at the University of Tasmania. He is a leading authority on Freedom of Information in Australia and the British Commonwealth, and was given an award as the best law Teacher in Australia last year (2009).

I have listed some of his key points in the order that I imagine people would like to read them.

Eight steps to improve your teaching:

1. Get constant intelligence about your students. Work out what your students are thinking using things like surveys and informal/formal class discussions.
   
   
2. Use reflective journals. Get all your students to keep their own records and reflections. Students must then hand in a selective reflection journal (3-4 pages of their thoughts) that they can present in whatever format they wish. Popular ways of organizing them included using themes and timelines. Students could also use other less traditional methods like video, poetry or audio blogs.Students are encouraged to reflect on any of these areas: the readings, the lectures, the teaching and/or their own learning style. Students often then find their own model.It is also advisable to keep reminding students to write their journals. Sometimes it helps to set them a reading that they can reflect on. To ensure that students actually do these it is advisable to assign a grade to them. Mr Snell initially assigned a 5% grade to these but has increased it to 20% over the years. This part of the talk was probably what we spent the most time on and Mr Snell couldn’t emphasize enough how useful the journals had been in improving teaching and learning in his classes.
   The purpose of these journals is to:
   a. Engage the students with the subject and the process.
   b. It provides a great source of information your students’ needs and their, often insightful, views on the subject.
   
   
3. Build an evidentiary portfolio of your teaching. Include things like student surveys, testimonials, personal reflections and the like. Alumni reflections on your course in light of their subsequent careers can be particularly useful. This portfolio is useful both in your professional reflections and when you applying for teaching awards.
   
   
4. Get experts/ colleagues to sit in on your lectures. Often fellow lecturers can point out things that you're doing wrong that you would never pick up and your students are too shy to tell you.
   
   
5. Join a teaching network. Get a group of fellow lecturers with whom you can meet up and chat about teaching.
   
   
6. Attend workshops and seminars on teaching. These are often very useful.
   
   
7. Write about your teaching. There are a number of non-reviewed journals that publish short pieces and anecdotes on teaching. These are useful sources of knowledge and over time if you wish you can move onto peer reviewed journals that have a greater emphasis on the studying teaching and learning.
   
   
8. Personal reflections are key. Personal and professional reflection ensures that you make far more of an effort to keep updating your course, emphasizing what worked in the past and discarding what is not working at the moment.

Some key insights that changed Mr Snell's teaching

1. The difference between deep and shallow learning. Shallow learning is cramming, cursory reading, engaging at the absolute minimum required to pass a subject. Shallow learning is encouraged by current examination techniques which focus on large exams that cover all the material. Deep learning is when the student engages with and thinks about the subject. Often this requires using fewer exams and focusing instead on alternative examination methods.
2. There are different learning styles. Some people use conceptual learning, others use kinetic learning (theater, debating and the like) and still others are good at detail learning. A good lecturer will recognize which of these she is better at teaching with and, more importantly, what her students respond to the best. Further, its important to include different kinds of teaching that cater to different kinds of ways of learning since that will increase the ability of all students to engage with the material.
3. The importance of looking at all aspects of a course and getting these aspects to align. So, if you want to teach law in depth your assessment methods should encourage that as should the readings you prescribe. Often elements of the course (exams, teaching, students, readers etc) don't work in harmony. Importantly, students are the variable that you as a lecturer cannot control. Every year you will be exposed to different students with different needs and you need to vary your teaching once you become aware of these differences.
4. You need to reflect critically on your teaching and research.

If you want to see information on Rick Snell visit his website at www.ricksnell.com.au

You can also check out these two papers written (or co-written) by Mr Snell on teaching:

• Team Teaching, Real World Experts, and Student Reflection: Teaching and Learning Pedagogy in the UTAS Introduction to Law Course
• A Spiral of Quality: Some Reflective and Personal Thoughts About Changing University Teaching Practices

See the following for further reading suggested by Mr Snell:

Brookfield, Stephen. “What it means to be a more critically reflective teacher” in Becoming a Critically Reflective Teacher, Jossey-Bass, San Francisco 1-27.

Ramsden, Paul. (1992) Learning To Teach In Higher Education,Routledge.

Biggs, J. (2003), Teaching for Quality Learning at University, 2nd ed, Maidenhead, Open University Press.

Under Pressure - An Introduction

All day, every day, members of different legal professions experience pressure in various ways. Academics feel the pinch to publish high quality articles while some deal simultaneously with the need to impart the (sometimes) trite banalities of the law on their (sometimes) unwilling students. Attorneys frequently work in high-pressured environments and have the weight of their client’s woes resting on their shoulders. Advocates are called on to present their client’s cases in court and are often hauled over the coals by judges. Judges face the distinct pressure of having to decide the matters before them. This entails a host of unique pressures – for example, for in some cases, judges actually make law (but this statement entails a long philosophical debate which I have no time to enter into right now – but is perhaps a good subject for a future blog, watch this space) and in other jurisdictions, where the death penalty is a recognised criminal punishment, they are literally called on to make life or death decisions.

Today, I (as a recent graduate/academic/aspiring member of the judiciary) face a different kind of pressure to those discussed above – the pressure to blog – the most recent post ‘Calli fail’ is indicative of the unrelenting nagging I have been experiencing. So here it is…my introductory blog *queue applause*

I envision this blog as a forum for discussion on interesting current (and even past) areas of legal debate. I also see this blog as serving two further purposes. The first is to be informative about the legal system itself – as many people’s views are only slightly jaded by television series’ such as Ally McBeal, Boston Legal etc [perhaps an even better way of shattering these misconceptions is to spend a day at a Magistrate’s Court].

The second is to act as somewhat of an ‘Ode to Private Law’ (well from my side anyway). Private law is the branch of law that essentially regulates relations between private parties. It is often overlooked and its importance downplayed when contrasted with what some people refer to as ‘sexy’ public law (yes, people refer to branches of law as sexy or otherwise). I hope that this blog will remind people of the importance of the branch of law that does a lot of the legwork in their lives on a daily basis.

As for what you can expect from me in terms of future posts, I am sure there will be wit, intelligence and interesting legal tidbits in abundance - a bit like the average conversation with me.

On playing Voetsie

It’s confession time. As I am sitting here writing this on the eve of that aberration know as St Valentine’s day, I am single.* I am not too perturbed by this state of affairs, but alas not unperturbed enough to avoid a succession of mildly unsuccessful dates. These events have been marred by a nervous condition (on my part) which manifests in a loss of the ability to converse in even a semi-coherent (much less intelligent) manner. Hence I developed a strategy – at the next date I will play Voetsie.

Playing Voetsie (n.) –a lesser known variation on playing ‘footsie’, a dating stratagem during which the dator regales the datee with lesser known (and entirely useless) facts about Jan Voet; synonym – kamikaze dating or suicide dating.

For those of you who wish to follow in my Voetsteps (snort), here is some raw material (with some editorial comment which you may use to reel her in):

• Jan Voet was born on 3 October 1647.

• His great-great- grandfather, Nicolaas Dirkz. Voet was the major of Oudheusden and later died in prison (see, political leaders can go to prison) as a protestant martyr (if she is religious, refrain from commenting on the unlikely notion of a protestant martyr).

• His great grandfather, Paulus Voet was a soldier in the Prince’s army which fought against Spanish rule.

• His grandfather was Gysbert Voet who was a professor primarius (dazzle her with your Latin – grrrowl) of Theology at the University of Utrecht.

• His father was Paulus Voet. He attained the magister artium at the age of 21 and became an extraordinary Professor in Metaphysics at the age of 22 (!). He studied law in his free time and attained the doctorate of law by the age of 26 (!!!). He became a Professor of Roman Law at the age of 35 (on second thoughts you may want to gloss over this bit, it could make you look bad - or you could just explain that these okes had a life expectancy of about 12 so they were in a hurry).

• Jan Voet’s mother’s name is Elizabeth (a good name, the best according to some).

• He graduated at age 20. He studied in Utrecht and taught there from 1674.

• His grandfather, Gysbert, was the rector of the University of Utrecht when Voet was teaching there.

• He was a deacon in the Dutch Reformed Church and later worked for the Church as an accountant.

• Voet was later recruited by the University of Leiden where he taught until his death in 1713.

At this point you may want to employ the more conventional method of playing footsie to check whether your date is still awake – if she isn’t, back away slowly and exit the scene – if she is, she is a keeper.

For more material you can consult De Wet Jan Voet (1948) 11 THRHR 50.

My next blog will be about internet dating and the Consumer Protection Act (I sh*t you not).

*My co-blogger Richard, oh, sorry wrong (random) name, I mean Dave (inside joke) said that I could blog about my personal life too as long as it relates to private law in some way. Not being one to shy away from an opportunity for unbridled narcissism, I intend to see how far I can stretch this mandate.

Calli fail

Just to let you all know that Calli has established herself as the straggler in the group and should be shunned. We are waiting with bated breath for your first publication!!

Some interesting links

A very interesting illustration of how private property rights can be limited to promote the right to housing.

A plan to use delict to sue for financial loss from the price-setting bread producers. There are some interesting issues around suing for pure economic loss that I would like to consider in the future.

Contrasting South African and American views on judicial impartiality.

A very interesting issue (raised a while ago in the media) on diplomatic protection of South African farmers in Zimbabwe. Here to read the article and here to download the judgment.

The Constitution and the common law

Since I will hopefully be making a number of posts on my thesis in the next year I thought I should give a brief introduction to the issue I will be examining in it.

The South African Constitution, unlike many other constitutions in the world, expressly states that it applies horizontally. Normally constitutions set out the rights of people against the state. Traditionally such rights could be the right to bodily integrity, the right to private property or the right to freedom of expression. It was understood that these rights existed against the state but not against people in their personal capacity. So the state can't torture people, seize their property without proper grounds or censor the media.

The South African Constitution dramatically departs from this way of seeing a constitution. Section 8(2) of the Constitution states that '[a] provision of the Bill of Rights binds a natural or a juristic person...' Now this may not appear to be that dramatic. It is unlikely anyone thinks that torturing your neighbour is permissible or that stealing from them is acceptable. However, the SA Constitution has rights that extend beyond these negative rights to include the right to housing or the healthcare. Its far from clear that most people would accept that they have an obligation to help their neighbour get a house. Fortunately the constitutional drafters recognized that this would be an issue so the above quoted section read as a whole states '[a] provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.' So, the potentially onerous task of having the obligation to respect your fellow citizens' rights is mitigated by the constraints of the nature of the right and the nature of the duty imposed by the right. Obviously, there is still the difficulty of determining which rights private persons should respect and the extent to which they should give effect to those rights. That will have to be the subject of a future post.

The Constitution continues on to state that 'in order to give effect to a right in the Bill, [courts] must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right'. What this reflects is the principle of avoidance. That is, courts should avoid giving effect directly to the constitution but should rather develop rules (the common law) that indirectly give effect to the Constitution. The common law is composed of a number of uncodified sources including previous judicial decisions, old Dutch authors (including the author Voet who has lent his name to this blog), custom and other sources. This body of law deals with things such as marriage, harms (both criminal harms and private harms called delicts/torts), contracts, and wills. So, the Constitution is instructing judges to develop this body of rules so that private individuals can manage their behaviour so that they give effect to the rights of others.

I wish to examine when courts may or must change the existing common law rules. Building on this, I wish to examine what the courts should change the law to once they've elected to change it. The Constitution gives some guidance on both questions.

It is clear that if a particular rule violates a right in the bill of rights it must be changed (unless the rule legitimately limits the rights of others). This is what is discussed above. However, the Constitution also recognizes that courts have a more general power to develop the common law, taking into account the interests of justice. So, a rule may not conflict with the Bill of Rights but courts may nevertheless elect to change the rule. For instance, with all the changes stemming from the internet courts may find existing common law rules outdated and need to change them. There are some interesting questions around when courts should exercise this broad discretion (if indeed they have any discretion in the matter).

The Constitution also provides some guidance as to how a court should proceed once it has elected to change the law. It states 'when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.' I am interested in examining what promoting the spirit, purport and objects of the Bill of Rights would constitute. I want to look at how those values interact with other important considerations (like commercial concerns or ethical concerns not reflected in the Constitution).

Anyway, this has been a long post but hopefully it gives some introduction to what I will be writing about this. Please let me know if I am explaining things unnecessarily or not explaining enough legal jargon.

Our first shout out

Simon Halliday over at Amanuensis has given us our first shout out. Hopefully this heralds our entry into the blogging community of South Africa. Small correction (which Simon wasn't to know), none of us are at the Con Court yet (although Emma will be over there from July).

Simon has some really interesting posts ranging from his thoughts on literature, scepticism to economics (in which he is doing his PhD). I particularly enjoyed his posts on gender in the press (which he promises will be relatively regular).

On demonic possession

I believe it was Henry Adams who said that chaos breeds life. Well in this instance chaos bred this blog.

Our aim: To explore strange new worlds, to seek out new life and new civilizations, to boldly blog about things no-one wanted to blog about before.

Who am I?: I am a recovering attorney doing my postgraduate studies in Consumer Protection Law, an enterprise which has evolved into something akin to demonic possession. I will therefore not be able to stop myself from blogging about it (and legislative intervention in private law in general) and I might throw something in about the rigors of post-graduate study and its effect on my psyche as a narcissistic afterthought.

May this be the beginning of great things. And if not, well, see you for a beer in the club on Fridays.

Fackflop

When asked to write about my interests and possible areas of discussion in private law, I was forced with the awful possibility that I may have to self-reflect. As Elizabeth said, “Who am I!?”. Well, dear reader, fear not - I will not bore you with the details. But what I have realized is that, at present, I am more interested in a few public law issues and these will be the subject of my first blog. Despite the seriousness of my first blog, I hope to follow with others that are more light-hearted or at least less about death.

Although the cockles of my heart are mostly warmed by private law, there are one or two (mostly) constitutional issues that really get my goat going. One of them is euthanasia. Euthanasia is defined by the House of Lords Select Committee on medical ethics as "a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering". We live in a constitutional, democratic state with the right to life, dignity, equality and all the other wonderfully colourful and flowery entitlements you can think of. Yet, we have a ‘moral’ and ‘legal’ issue with being given the right to die with dignity. Although, I suspect that most of these ‘moral’ issues are deeply affected and tempered by religious persuasions. Anyone who has watched a loved one’s life and soul being eaten away by some tortuous disease will understand how ridiculous this is. I use the word ‘tortuous’ intentionally. If you juxtapose this with the idea that we have the right not to be tortured both internationally and domestically, the absurdity of the current situation is magnified.

I understand all of the arguments against euthanasia. One of them is the concern that this would open the floodgates to defenses where people have ‘off-ed’ family members on compassionate grounds. However, on the contrary, if the situation were to be legally regulated, there would be no grounds for a defense. All euthanasia would take place under the strictest guidance of medical professionals and only once all legal stipulations have been satisfied. This would leave no loopholes for anyone to claim that they had killed to end the suffering of the deceased.

My proposition is this: legislation is passed that affords you the right to an assisted suicide. But only in the appropriate situation where a number of conditions have been satisfied. There would need to be a board of medical professionals, from a range of disciplines, who authorize the event. I would advocate that there be a psychological evaluation, intense medical screening as well as counseling involved. The euthanasia should only be authorized once ALL requisite professionals involved (not only one or two, but a panel of doctors) have agreed that the condition is terminal and advanced. It would have to be the case that to not authorize the euthanasia would be cruel and inhuman.

It makes no sense to me that we are quite happy to let the most frail in our society wither away in an excruciating and undignified way. This does not give effect to the right to life, at least not as I understand it. It does not give effect to the right to dignity. I sincerely hope that our future understanding of the right to life will incorporate a notion of the right to die.

Call for contributions and community

It seems like quite a tragedy that there are so few academics in our Law Faculty that blog (with the notable exception of Constitutionally Speaking). This seems to be the case across South Africa (and Africa more generally). I hope that this blog can contribute towards the growth of a blogging community within South Africa. If you would like to be part of this community either by contributing to this blog or would like us at the blog to read and respond to your blog please email me at david.watson[at]uct.ac.za. We can also add you to our blog roll (which is at this point quite sparse).

On Voet and the Constitution by way of introduction

On the wall in my office there is a quote by Elizabeth (one of my co-bloggers)that reads 'I hope this constitutional sh*t isn't contagious'. Although that was said as part of some friendly rivalry with the Public Law Department at UCT it reflects some of the motivation for starting this blog.

I have a keen interest in private law and the relations between private individuals (both human and corporate). In particular, I am interested in the extent to which we can expect private individuals to comply with and promote the values of the South African constitution in their relations with other people. This is the broad area that I am writing my thesis on and so this blog will hopefully have my half formed thoughts and mutterings on the subject as I go along.

At this point I am not sure exactly where I stand on the relationship between the values of the Constitution and private individuals. I know that in my personal relations I hope to life a life of integrity that exemplifies many of the values of the Constitution. However, I believe there is a clear distinction between how I should live my life and how society should be structured. During my undergrad I had an excellent series of lectures by Kristina Bentley on Two Concepts of Liberty by Isaiah Berlin that has always made me mindful of the dangers of government promoting a vision of what type of person everyone should be. At the same time I am mindful of the fact that South Africa is filled with people who are racist, parochial or bigoted. There is a dire need for courts and government to promote tolerance and convince people of the importance of constitutional values.

I am not sure how these (and other) concerns should be balanced. Hopefully in the next year I will have some tentative conclusions. I am going to be looking in particular at the Courts duty (and perhaps discretion) to develop the common law. It is this question that gives this post its name (On Voet and the Constitution).

I have other broader interests in public, private and international law. So hopefully you will see some posts on those topics to.

I will leave it to my co-bloggers to write their own introductions and let you know their interests. Please feel free to send me an email at david.watson[at]uct.ac.za if you would like to join our collaboration or would like to advertize you blog.