Wednesday, March 24, 2010

Bloggers for press freedom

I don't know whether everyone who blogs on this blog will support the below statement but I know I do and I am relatively certain that it reflects the view of everyone.

Bloggers For a Free Press

Last week, shocking revelations concerning the activities of the ANC Youth League spokesperson Nyiko Floyd Shivambu came to the fore. According to a letter published in various news outlets, a complaint was laid by 19 political journalists with the Secretary General of the ANC, against Shivambu. This complaint letter detailed attempts by Shivambu to leak a dossier to certain journalists, purporting to expose the money laundering practices of Dumisani Lubisi, a journalist at the City Press. The letter also detailed the intimidation that followed when these journalists refused to publish these revelations. We condemn in the strongest possible terms the reprisals against journalists by Shivambu. His actions constitute a blatant attack on media freedom and a grave infringement on Constitutional rights. It is a disturbing step towards dictatorial rule in South Africa.

We call on the ANC and the ANC Youth League to distance themselves from the actions of Shivambu. The media have, time and again, been a vital democratic safeguard by exposing the actions of individuals who have abused their positions of power for personal and political gain.

The press have played a vital role in the liberation struggle, operating under difficult and often dangerous conditions to document some of the most crucial moments in the struggle against apartheid. It is therefore distressing to note that certain people within the ruling party are willing to maliciously target journalists by invading their privacy and threatening their colleagues in a bid to silence them in their legitimate work.

We also note the breathtaking hubris displayed by Shivambu and the ANC Youth League President Julius Malema in their response to the letter of complaint. Shivambu and Malema clearly have no respect for the media and the rights afforded to the media by the Constitution of South Africa. Such a response serves only to reinforce the position that the motive for leaking the so-called dossier was not a legitimate concern, but a insolent effort to
intimidate and bully a journalist who had exposed embarrassing information about the Youth League President.

We urge the ANC as a whole to reaffirm its commitment to media freedom and other Constitutional rights we enjoy as a country.

Blog Roll:

Legal reasoning 1: Precedent

I made a number of promises at the start of the year that this blog would include regular posts that would be helpful to the students we’re all tutoring. So far this has been a lie. I hope to change that today by putting up a post on legal reasoning. I will hopefully do something similar every Wednesday. If you would rather die than think like a lawyer, this post isn’t for you. But if you are interested in how lawyers reason keep reading.

One of the first things that you learn when you get to law school is that courts are bound by precedent. The doctrine of precedent is ‘the general duty of judges to follow the legal rulings in previous judicial decisions’. This is often referred to as stare decisis et non quieta movere (or stare decisis for short). Translated this means ‘to stand by decisions and not disturb settled points.’

In practice this means that the courts are bound absolutely by the decisions of higher courts. So, the High Courts are absolutely bound by the Supreme Court of Appeal and the Constitutional Court. Absolutely bound means that a court lacks the power to refuse to follow an earlier decision or overrule the precedent. Further, a court (including the Con Court or SCA) is also bound by itself presumptively – that is a court must follow its own earlier decisions unless it is persuaded that it is clearly wrong.

Let’s quickly explore the notion of what it means to be bound by a decision. Being bound means that when a court gets a case (called the instant case) that is similar to an earlier case (the precedent case) in the relevant respects then the court must follow the earlier court’s finding of law (called the ratio decidendi).

For example, one of the first Con Court judgments S v Makwanyane found that the death penalty was unconstitutional (this is the precedent case). However, the Con Court declined to decide whether the death penalty is constitutional for the crime of treason. Let’s say you were sitting as a judge in the Western Cape and a case came before you where someone brutally raped and murdered a woman (the instant case). You couldn’t look at the instant case and say “this murder was so horrible that I am going to sentence this criminal to the death penalty.” You are absolutely bound by the precedent case that the death penalty is unconstitutional.

Now consider this second example. Say that you were a judge in a high court case involving someone who had committed an act of treason against the government. It was such a heinous act of treason that the prosecutor was asking for the death penalty. Here you would not be bound by Makwanyane. Why? Makwanyane limited the scope of its finding on the death penalty to all crimes except the crime of treason. Since this was an act of treason you could (and in fact are obliged to) make up your own mind on whether the death penalty was unconstitutional for cases involving treason. Why? The relevant facts of the case before you (someone had committed treason) and the relevant facts of Makwanyane (someone had committed a crime that wasn’t treason) are different so the decision in Makwanyane is not binding for this set of facts.

Notice, in the first example (where you’re absolutely bound by Makwanyane) that you don’t follow Makwanyane because you agree with its reasoning. You follow it because you have to follow it despite whether you think its reasoning was sound or deficient. This is important because it highlights one of the shortcomings of precedents – new cases aren’t decided according to an ‘all things considered’ view of what would be just in the particular circumstances. Instead you have to decide the instant case in a certain way because some earlier case decided it that way. So, the doctrine of precedent can be at odds with what justice requires in the particular circumstances of the case.

Despite this shortcoming South Africa still follows the doctrine because it promotes certainty and stability. People need to know that when a court decides what the law is that they can rely on that remaining the law. This has a number of spill-over benefits including the fact that people are more likely to settle their disputes without going to court because they know what the law is. The doctrine also promotes cognitive and decisional efficiency. Because precedents are binding, a court doesn’t need to reconsider every question of law that arises in the instant case. This means that the judge can focus on the questions of law that haven’t been decided before and on the complicated questions of fact. So, those judges give these new issues their full attention and hopefully come to the best outcome and rely on early courts to have done the same in the precedent.

Consider again the second example (Makwanyane isn’t binding because there’s an act of treason). Here you as a judge must make your own decision because you are not bound by any decision that is on point. Since Makwanyane expressly did not deal with treason you are free to completely disregard that case since it doesn’t bind you (in fairness, certain theorists will deny that you can disregard it completely. See for instance Dworkin). However, it is highly unlikely that any court faced with a treason trial with the death penalty would disregard Makwanyane and not mention it in their decision. This is because decisions that don’t constitute precedent are still persuasive. That is, courts are willing to learn from earlier decisions. A court will look at Makwanyane and examine its reasoning. If the instant court finds the reasoning sound and believes that similar reasoning would hold in the case of treason it may find that the death penalty is unconstitutional even for the crime of treason. Note here, Makwanyane was important not because the court had to follow it but because the court was persuaded by the reasons in Makwanyane. Of course, it may be that the court finds the reasoning in Makwanyane was incorrect or inappropriate for the crime of treason and thus finds the death penalty constitutional.

Anyway, hopefully this gives you a taste of legal reasoning. Next week I will go into more detail around how courts and judges can avoid following a precedent.

Friday, March 19, 2010

Truth and amnesty.

Posted by Julian Jonker.

I thought I'd get a word in on The Citizen v McBride, a Supreme Court of Appeal judgment handed down at the end of February. David recently wrote about it on this blog, and Pierre de Vos and Robert Brand wrote about it on theirs. I thought this might be a good place to rehearse an argument I am making in a case note. Someone once said that journalism is the first draft of history, so why not use law blogs as the first draft of legal scholarship? I'll try to be brief and leave the details for the note.

I'll recall the facts of the case and give some of the more racy context for interest's sake. Robert McBride had gained some notoriety as a member of the ANC's armed wing in the late 80s, most notably for a bombing of Magoo's Bar in Durban, an act which resulted in 3 deaths and many injuries, all civilian. McBride was arrested for this and sentenced to death, but was released during the early 90s as a prerequisite of the ANC's involvement in negotiations (the tit for tat was that Barend Strydom, the infamous 'Wit Wolf,' also had to be released).

McBride subsequently appeared before the TRC's Amnesty Committee. As an aside, his appearance there left a lot to be desired - when a TRC Commissioner asked the daughter of one of the victims whether she was prepared to forgive McBride at any point during his testimony, she said something to the effect of: 'The only time I was ready to forgive McBride was when I walked through the door at the beginning of this hearing.' But forgiveness wasn't a requirement of the amnesty process, and so McBride received amnesty for the Magoo's Bar bombing.

Fast forward to 2003. McBride had been a Director in the Department of Foreign Affairs since democracy, and was now about to be appointed to the position of Ekhuruleni Metro Police Chief. Enter The Citizen newspaper, who clearly did not like this. They published a series of articles and editorials in which they made it known that McBride was unfit for the position. These articles included juicy statements like the following:

'Robert McBride's candidacy for the post of Ekhuruleni Metro Police Chief is indicative of the ANC's attitude to crime. They can't be serious. He is blatantly unsuited, unless his backers support the dubious philosophy: set a criminal to catch a criminal.'

Here's another:

'If the ANC regards Robert McBride as a hero of the struggle, it should erect a statue of him - perhaps standing majestically over the mangled remains of the women he slaughtered. He should most certainly not be made a policeman.'

McBride sued for defamation. The central defamatory statement made in all the publications was that McBride is a murderer. (There were other defamatory statements aplenty, but ultimately they were all parasitic upon this one.) Is this actionable? The key question was whether it is true to say that McBride is a murderer. If it was, the statement would fall under the protection of the classic defence of truth and public benefit.

Why would such a statement not be true? McBride had been convicted on three counts of murder, after all. Yet the Supreme Court of Appeal held that the statement was in fact false, on the basis that McBride had received amnesty for the murders. The effect of such a grant of amnesty is far reaching. Section 20(10) of the Promotion of National Unity and Reconciliation Act of 1995 (I'll call it 'the Reconciliation Act') says that 'the conviction shall be deemed to be expunged from all official documents or records and the conviction shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place.' That's strong language, and on this basis Streicher JA, who wrote the majority judgment, ruled that 'once amnesty had been granted to [McBride] he could no longer be branded a criminal and a murderer in respect of which such amnesty had been granted.'

But Streicher made it clear that he did not mean the past had been erased. In fact he wrote explicitly: 'It is a fact that [McBride] placed the bomb that killed a number of people and it is a fact that he was convicted of the murder of those people. The amnesty granted to the respondent could not obliterate those facts or erase them from the historical record...' Rather, the point is that the amnesty erases McBride's legal status as a murderer.

Now, I happen to think the decision is bizarre, but I've found it difficult to pinpoint why exactly it is wrong in law. I sympathize with the dissenting judgment of Mthiyane JA, which points out that 'murderer' is 'a conventional description in common parlance of someone who perpetrates such acts.' Yet what could 'such acts' be other than acts of murder, and how are we to understand 'murder' if not by its legal description? The Oxford English Dictionary notes that 'murder' has a primary legal sense ('criminal homocide') and a secondary moral sense 'the action of killing or causing destruction of life, regarded as wicked and morally reprehensible irrespective of its legality', my emphasis). All the same, there are good policy reasons for taking the word in its primary legal sense. The stigma created by branding a person a criminal is great, and in our society can lead to acts of violence. The law has a monopoly on deciding the guilt or innocence of a person, and we should protect this. I do not think that the law should condone the anti-abortion protestor, for example, who calls a doctor who has performed a lawful abortion a 'murderer.'

For this reason, amongst others, I do not think it is wise to rely on the argument that 'murderer' is not only a legal description, though ultimately I agree with it. Consider the 12 year old who unlawfully and intentionally kills another, and is acquitted for lack of criminal capacity. The conduct of the child falls under the description of murder. Should we not say that the child has been excused for lack of capacity, but is still a murderer (that is, someone who has committed a murder)?

The real problem with this line of argument is that it involves too much semantic hairsplitting. We should prefer a more secure doctrinal or policy argument. Here's one. Firstly, let's distinguish between (a) a conviction for the crime of murder, and (b) the juristic fact of murder upon which such a conviction rests upon such a fact. The conviction (a) is established by the decision of a court. The fact (b) is established by the requirements of the crime being present. It's clear that the two are related but may exist independently of each other. On the one hand, it may be that someone has committed a deed that falls under the legal description of murder but a conviction has not yet been secured. It would be true to call the doer of the deed a murderer, for she has committed a murder. On the other hand, we know that a conviction might be secured but it turns out much later (after examining DNA evidence, for example), that the convicted person did not commit the murder. It would be false to call such a person a murderer, even while she languishes in jail. Indeed, in a civil trial one may prove (on the balance of probabilities) that a person is a murderer, even in the absence of a conviction.

My second contention is that s 20(10) affects (a) the conviction, but not (b) the juristic fact upon which it rests. If this is correct, it follows that s 20(10), contrary to Streicher JA's decision, has no effect upon the truth value of the statement 'McBride is a murderer.'

Is my second contention correct? Let's look at the provision again. It says that when amnesty is granted in respect of a crime for which a conviction has been secured, 'the conviction shall be deemed to be expunged from all official documents or records and the conviction shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place.' A literal reading of the subsection clearly supports my contention. At no point does the subsection, or the rest of the section for that matter, say that it is the juristic fact upon which the conviction rests or the legal description of the act for which the conviction was secured which is affected.

Although there is no ambiguity in the provision, and thus no need to look beyond its literal language, a purposive interpretation would simply bolster my argument. In Du Toit v Minister for Safety and Security the Constitutional Court had to interpret the same section in order to determine its retrospective effect. Langa CJ, writing a unanimous judgment, held that the section should be read restrictively given that the TRC granted amnesty as a means to reveal the truth. Therefore we should not think that amnesty was given for the absolute benefit of perpetrators of past human rights violations. Indeed, the purpose of the TRC was disclosure, not interment of the past.

Furthermore, we now all know that whenever a court interprets legislation it is obliged by s 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights. This is another reason to think that s 20(10) only affects convictions and not the legal descriptions of the underlying acts. Not only because such a reading gives effect to the right to freedom of expression, but because of the s 34 right to have any justiciable dispute resolved by a court or 'another independent or impartial tribunal or forum.' It may be that the TRC is such a forum, but we must remember that s 166 of the Constitution vests judicial authority in the courts, and that the Reconciliation Act did not empower the TRC to decide upon the guilt and innocence of those who appeared before it. Yet Streicher JA's interpretation of s 20(10), by erasing not only the conviction but the legal description of McBride's acts, has the consequence that a grant of amnesty by the TRC also removed the guilt of the amnesty applicant. Thus Streicher JA's interpretation must be wrong.

For those reasons, I think that the Citizen's defence of truth and public benefit should have succeeded. I do also wonder whether The Citizen might have pleaded media privilege (in other words, the National Media v Bogoshi defence), or for that matter tried to rebut the presumption of fault on the basis that they had made a mistake of law (that is, they had mistaken the effect of s 20(10) of the Reconciliation Act). Neither of these are sure-fire strategies though, given that Bogoshi seems to create liability in defamation for negligent defamatory statements by the media.

I'd be interested to know what anyone else thinks.

Of 12 year olds and contraceptives...

Section 134 of the new Children’s Act No. 38 of 2005 came into effect on the 1st of July 2007, giving children as young as 12 the right to access contraceptives without parental consent. The section reads:
(1) No person may refuse-
(a) to sell condoms to a child over the age of 12 years; or
(b) to provide a child over the age of 12 years with condoms on request where such condoms are provided or distributed free of charge.

(2) Contraceptives other than condoms may be provided to a child on request by the child and without the consent of the parent or care-giver of the child if-
(a) the child is at least 12 years of age;
(b) proper medical advice is given to the child; and
(c) a medical examination is carried out on the child to determine whether there are any medical reasons why a specific contraceptive should not be provided to the child.

(3) A child who obtains condoms, contraceptives or contraceptive advice in terms of this Act is entitled to confidentiality in this respect, subject to section 105.
[Date of commencement of s. 134: 1 July 2007.]

On the day, Musa Mbere from the department of social development was quoted as saying, “The reason behind is to make sure that our law is aligned in terms of the age when children can access contraceptives. Children become sexually active at an early stage. It’s a reality we are dealing with.” The Children’s Rights Center (CRC) also applauded the government’s decision to put such legislation into effect. Spokesperson for the CRC, Noreen Ramsden told journalists that the legislations was ‘a big step forward’ for the children. Deputy director of the AIDS Foundation of South Africa, Nozuko Majola concurred and agreed that the act allowed for communities to start talking about sexual reproductive health more openly. The South African Human Rights Commission also came out in support of the legislation saying ‘it was an improvement in our legislation.’

While there was much lauding of the Act, I just wondered and am still wondering; Do any of the people who came out in support of this provision have children as young as 12? Would any parent actually allow their 12 year olds to buy contraceptives? Is there a parent who can actually give their 12 year old access to condoms where such child makes the request? Imagine this conversation between a parent and a child:
Child - Dad, please can you buy me a pack of condoms. The ones I had have run out.
Dad - Ok sonny, how many packs do you want?
Child - Mum, please can you buy me pregnancy pills on your way from work today.
Mum - Ok my angel, I sure will.
I personally find this legislation unbelievable and quite laughable. Unless there is a parent, with a 12 year old child, who can come out in the open in support of this legislation, I will keep believing that s134 of the new Children’s Act is a big joke!

Thursday, March 18, 2010

Professor Fagan's graduation poem

We've been telling our friends how funny the speech delivered by Professor Anton Fagan at the UCT law graduation was. So, to avoid any more painfully bad and inaccurate re-tellings, we're cutting out the middle man (us) and just posting it directly:

"Final Year 2009

It is my great pleasure to welcome one and all
Gathered here today in this lecture hall.
Many of you have sat here many times before
In a determined effort to learn a little of the law.

In this lecture theatre and the two nearby
You have sat through many lectures, most of them dry,
Most so dull, they would have made you weep
Had you not, in self-defence, fallen asleep.

But that, I’m afraid, is the nature of the beast
Upon whose flesh you have chosen to feast.
Had you not the stomach for the law’s monotony
You should have studied something interesting, like maths or botany.

Of course, a few of your colleagues were so enthralled
By the study of the law, that they have stalled
Their emancipation from this Faculty until 2010
Just so they can see Mr Bradfield again.

And there are some who by causation were so delighted,
Who by wrongfulness had their passion so ignited,
Who thought the course-and-scope requirement so sublime,
That they’ve decided to do delict for a third time.

But to mourn dear comrades, fallen along the way
Is not the reason for our meeting here today.
We’re assembled here for a graduation
And that is cause for a major celebration.

To get a law degree from UCT
You have to be as clever as clever can be.
You have to be conscientious and hardworking too
And have an ability to see things through.

You need to have worked out the rules of the game
And have realised that your lecturers are not all the same,
That while public-law lecturers genuflect at the Constitutional shrine,
Private-law lecturers think the common law does just fine.

Your cutting-and-pasting you need to have perfected,
So that your multiple plagiarisms would remain undetected.
You need to have mastered paraphrase and word-substitution
So you could pass your many assignments without prosecution.

Admittedly, you also had to learn the odd legal rule,
But only well enough so that you could fool
Your examiners into thinking that you did comprehend
Enough of the law for them to send

You out into legal practice, where a single mistake
Could have the result that you never make
Partner in the big law firm in the big city.
Yes, practice can be hard, practice can be . . . without pity.

Of course, you also had to learn theories so abstruse
That they could not possibly have any practical use.
Will Hart’s rule of recognition or Dworkin’s constructive interpretation
Really help you to pass the attorneys’ examination?

But though jurisprudence will not bring professional success,
It is very handy if you wish to impress.
Indeed, the pick-up line: ‘Baby, let’s deconstruct’
Is guaranteed to get you instantly . . . .

But that’s enough of this salacious chatter.
The law, after all, is a serious matter.
Anyway, lawyers are not known to be flirtatious.
They’re known, rather, for being sagacious
– not to mention loquacious, vexatious, mendacious and rapacious.

So let us shift our gaze instead
To the future which – by definition – lies ahead.
Let us reflect on what may be in store
For those embarking on a career in law.

Will you emulate my old class-mate Brett
Who professional ethics was inclined to forget;
Who was moved exclusively by avarice and greed
And thus morality and the law seldom did heed?

Yes, dear old Kebble started as one of us.
But now he’s very much an ex-alumnus,
An ex-attorney and ex-businessman too,
A predictable end for one so lacking in virtue.

My class-mate Willie Hofmeyr I knew less well.
He preferred the solitude of his Pollsmoor cell.
But though Willie, like Brett, disobeyed the laws,
Willie, unlike Brett, had a noble cause.

So when in practice you receive those visitations
From the little horned fellow whispering sweet temptations,
Do not be daft, do not be silly.
Don’t be like Brett, be like Willie.

But now it is time to make a small confession,
Lest you receive the wrong impression:
The reason for subjecting you to this interminable rhyme
Isn’t really to caution you against a life of crime.

Nor is it to try to be wise or funny.
The bottom-line is: We want your money.
We want you, the minute that you start earning,
To give something back to this place of learning.

Give us your money, give us your gold,
Not to replace my car, which is 12 years old,
But because academic excellence costs a pretty penny
And because the needs of this Faculty are great and many.

So before you purchase your eco-friendly 4x4
Spare a thought for this Faculty of Law.
Think about the kids who cannot pay our fees
And for that reason alone cannot get our degrees.

Reflect upon the need for legal transformation.
Then reach into your silk pockets and make a donation.
Give us your money, give us your lucre.
Help us to build a better future.

To conclude this poem I must draw your attention
To the people who deserve the final mention.
It is not today’s graduands that I have in mind.
But rather all those who stood behind.

I mean the fathers and the mothers,
The grandparents, the spouses and the lovers.
Without their pecuniary and sentimental aid,
Far fewer today’s graduation would have made.

So it’s two cheers for the graduands and one for their teachers,
For they indeed are marvellous creatures.
But for their families and partners, for Mama and Papa,
It can be nothing less than: Hurrah, Hurrah, Hurrah!"

Monday, March 15, 2010

What are your rights when stopped at a roadblock?

Generally, when I tell someone new that I studied law, the response is akin to my having stuffed a particularly bitter lemon into his or her mouth – faces are pulled, sarcastic comments are muttered and sometimes, with the kind ones, there’s a quick look of distaste that passes over his or her face before it can be masked with polite interest. Given this, I’ve decided to do a series of blog posts on why the law is useful to you. The hope is that I’ll be able to illustrate the real impact that the law can have on your life (and win affection and popularity for myself).

I thought that I’d start with the question that everyone always asks me – what are my rights when I get stopped by the police at a road block. I’ve heard some pretty harrowing stories of policemen intimidating and threatening motorists with the goal of extracting a bribe. Frightened by the prospect of spending a night in jail and all the dangers that come with it, most people cave in and pay up. Given that I’m not a big fan of corruption and would prefer if people don’t get pushed into acting in a way that encourages it, I give you the Law-shield-that-may-work-in-some-instances-to-get-you-out-of-these-situations-but-unfortunately-not-in-all-instances.

So, here are the frequently asked questions:
  1. Can the police search my car and other possessions?
    Your car: Police officers are empowered to stop, inspect and test your vehicle to ensure that it complies with the safety and functionality requirements of the National Road Traffic Act (NRTA) and regulations. This includes the power to at any time enter your vehicle and inspect it.
    As a side note, the NRTA actually specifies that officers aren’t allowed to dismantle any parts of your car unless they happen to be a qualified mechanic and if they do, it’s compulsory for them to put it all back together again. If you are ever in the situation that a police officer actually dismantles your engine, please do write and tell us, we can put it on our ‘never saw that coming’ list of the impossible.
    Searching your other possessions: The State may seize anything which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence. Normally a police officer would need a search warrant to search your person or property. However, there are certain instances when they can do so without a warrant:
    i. You consent to the search for and seizure of the item or,
    ii. That police officer believes on reasonable grounds that a search warrant would be issued to him anyway and that the delay in obtaining such a warrant would defeat the object of the search.
    A lot can be said about what constitutes belief on ‘reasonable grounds’ but for our purposes it’s enough to say that it is required. If an officer is trying to search your stuff when it is clearly unreasonable and there is obviously no connection to an offence, he is overstepping his powers.

  2. Do I have to take a breathalyzer test? If so, what is the actual legal limit for blood-alcohol levels?
    • Yes, you do have to take a breathalyzer. The NRTA prohibits you from refusing to give a blood or breath sample. However, in the name of your protection (to avoid dodgy dealings) and just plain hygiene, make sure that the officer inserts a fresh mouthpiece into the base of the inhaler in your presence and that the mouthpiece is still covered by its protective covering. The protective covering should then be removed when you are ready to blow.
    Legal limit: The blood alcohol limit is 0,05 grams per 100 millilitres. Apparently, for an average 65kg woman, this means that your limit is about 1 glass of wine or 2 beers over 2 hours of drinking. For an average 70kg man the limit is approximately 2 glasses of wine or 2 beers. To calculate this easily for yourself go to

  3. Can I be arrested for being rude?
    • Not in most cases (it depends on whether you go blurting out hate speech or become severely abusive). However, the NRTA does specifically prohibit you from threatening the police officer and his family with either physical violence or injury to their property. So keep your rage in your pocket.
    • On the other hand, to state the obvious, no-one likes a prick. There is no point in looking for trouble and annoying a police officer. At the risk of sounding preachy, we would suggest that you be polite and respectful and in most cases you’ll be treated in the same way in return.

  4. Can the police officer refuse to let me go on my way?
    • They can indeed. If you appear to be incapable of driving because of your physical or mental condition, the officer can temporarily forbid you to drive.

  5. If I get threatened or asked for a bribe what should I do?
    • Bluff tactics and crippling legal knowledge are useful here:
    o Ask for the officer’s name, unit and service identification number. Ask to see his badge and verify that he has given you the right name and number.
    o Start as many sentences as you can with ‘the Criminal Procedure Act/ National Road Traffic Act says...’ followed by you reeling off whatever you can remember from this blog-post.
    o Make it very clear that if the officer arrests you, you will consult a lawyer and you will sue for unlawful arrest.

Freedom of speech and Malema

There is quite a lot of debate around the limits to freedom of speech since Malema was found in contravention of the Equality Act today. Robert Brand has recently written a blog post in which he argues that Malema's comments on the woman accused of rape should not have received censure by the Equality Court. Although I think there is much merit in what Prof Brand has to say, I think that his analysis is not entirely complete.

Mr Brand suggests that the Equality Act prohibits speech that would not otherwise be prohibited under the Constitution. The Constitution prohibits speech amounting to hate speech on grounds of race, ethnicity, gender or religion and constitutes incitement to cause harm. However, the Equality Act goes to far because it includes incitement on grounds other than those listed in the Constitution. The Constitution requires that the speech is intended to cause harm. However, the Equality Act prohibits speech that can be construed as having the intention to cause harm. In this way, people with innocent intentions could be found guilty of hate speech.

I think that there is much merit to Mr Brand's argument. The Equality Act has, by all reports, massive constitutional problems. However, I am not convinced that this is the right case to challenge the act, especially not on the grounds raised by Mr Brand.

Firstly, the issue is not only whether what Malema said would constitute hate speech according to the definition of hate speech in the Constitution. Even if it does not constitute hate speech according to the hate speech, it may be constitutional to prohibit the speech. In other words, the prohibition may fall foul of the right to freedom of speech. However, it would still be necessary to determine whether such a limitation may be justified according to section 36 of the Constitution. Section 36 has a check-list of considerations that need to be dealt with in order to determine whether a limitation is permissible. In this case, the Court may be influenced by a desire to protect the complainants in rape cases (even unsuccessful ones) and construe that as a legitimate purpose that justifies limiting freedom of speech.

Secondly, a similar argument can be made concerning the lack of the element of intentionality in the Equality Act's definition of hate speech. The Con Court has recognized that intentionality is a very important element when one is committing a crime. However, it has acknowledged that in some instances a lower threshold may be permitted. For instance, it may be possible that negligently committing hate speech warrants sanctioning for similar reasons to the ones in the previous paragraph.

I would be interested to hear the views of the guys over at SA4L

Nationalizing all productive land

There has been a media frenzy around the possibility of government nationalising all productive land. I don't support this but there is a case to be made that the government has already nationalised land using the Minerals and Petroleum Development Act.

The MPRDA defines a mineral as 'any substance, whether in solid, liquid or gaseous form, occurring naturally in or on the earth or in or under water and which was formed by or subjected to a geological process, and includes sand, stone, rock, gravel, clay, soil...'

In this general form this would include all land (and in fact an academic called Badenhorst has long claimed this to be the case). The MPRDA proceeds to then say that '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.'

On the face of it, a case could be made that this amounts to nationalisation and this nationalisation includes all land. I think there are ways to avoid this interpretation but for the purposes of the current media frenzy I think its interesting that we already have legislation with rather dramatic appearing provisions relating to property rights and nationalisation. To me, this reflects the paucity of public debate around legislation and particular provisions of legislation that could have far reaching and unacceptable consequences.

Friday, March 12, 2010

Will prostitutes have their happy ending? Does labour law apply to prostitutes?

In legalbrief this morning, my eye was drawn to the story of ‘Kylie’. She is a prostitute, working in a massage parlour in town, who is attempting to challenge her dismissal. The Commission for Conciliation, Mediation and Arbitration (CCMA) rejected her challenge on the grounds that her work is illegal – the case was then heard by three judges in the Labour Appeal Court and judgement has been reserved. Perhaps, a caveat before I venture any further, I am no authority on issues of labour law and I do not intend for this piece– by any stretch of the imagination – to be an authoritative statement on the law on this issue, it is more an (educated) opinion-soliciting article.

Kylie’s legal representative, Advocate Trengrove, has said that the Constitution and the Labour Relations Act (hereafter LRA) say that every employee is entitled to protection under the law and that moral judgement should not be a factor considered by the court. Advocate Trengrove then uses an example that is aimed precisely at getting you to make a moral judgement – a hawker’s assistant selling fruit in contravention of a city bylaw can ‘get through the door’ at the CCMA. Both the hawker’s assistant and the prostitutes actions are illegal, however, I would venture a guess that most people would think that somehow the prostitute is less deserving of protection – this would stem from a moral judgement of their profession and is probably not based on any cogent legal reasoning.

I agree with Advocate Trengrove, that ones moral sensibilities should not play a role in deciding the legal issue of whether Kylie is to be afforded the protection that other employees enjoy under South African law. A principled and consistent position must be taken in respect of the laws application to both the illegal hawker’s assistant and the prostitute, but as to what that position is I am undecided (and perhaps am hesitant to express an opinion on without an adequate knowledge of labour law).

I do, however, think that there is a certain legal conundrum involved where a particular activity is criminalised and at the same time those who choose to engage in it are granted the protection of labour law? The consequences of an approach of this kind, if taken to the extreme, are several – take for example the junior drug mule challenging his dismissal by the ringleader – and surely ‘contracts’ of this kind are completely contrary to public policy?
As I said, I am undecided on the issue and this is really just a vehicle for gauging opinion, so please do comment.

What do you think? Will ‘Kylie’ get
her happy ending...?

The nitty-gritties of titties on the web

Whatever your views on pornography may be, allowing the government to censor porn on the Internet would have catastrophic results for our right to freedom of expression. LegalBrief ran an article this morning after the FPI's (The Family Policy Institute) request to government to have additional restrictions placed on pornography, with the ultimate intention of introducing an absolute ban on pornography in public media, cellphones and the Internet. This comes in response to Multichoice's consideration of a 24-hour pornography channel, which has received mixed responses. Department spokesperson Bayanda Mzoneli is quoted as saying that 'pornography is addictive and breeds many ills in society including breaking families, abuse of women and affects the addicts psychologically'.

I do not purport to be an expert in the field of the psychological effects of pornography and I could well be wrong. However, the fact that there is a correlation between pornography and sexual abuse does not necessarily lead to the conclusion that pornography is in fact the cause of the abuse. Furthermore, there seems to be as of yet an inconclusive (and here) result as to whether there is a correlation. I also think that the break-up of families, sexual abuse and the poor treatment of women and children indicates a far deeper issue in society and social cohesion, and it is a cop-out to blame it on pornography. It allows for the parties perpetrating these crimes, or not taking their familial responsibilities seriously, to abdicate their own blame and responsibility in that situation.

However, the legal issue is of more concern to me here. How far are we willing to allow censorship to go? As far as the Chinese government, where there are approximately 30 000 Internet police? Where blogs, chat rooms, Internet forums are monitored and erased? Where there is reportedly the highest number of journalists and cyber-dissidents imprisoned in the world? I am wary of a paternalistic state especially in the context of freedom of expression. This right is probably one of the most important rights to grace our Constitution and is fundamental to any functioning democracy. We just need to look to the recent events where Mr Maxwele was arrested for zapping the President to see that we may be treading a fine-line in turning this right into a white elephant. I, for one, am not in favour of no longer being able to express my opinion, no matter how uninformed or counter-majoritarian it may be. I sincerely hope that the powers that be feel the same way.

*Note: in a quick search we found that our blog was as of yet insignificant and thus not censored in China. However, we'll monitor this situation once the blog is posted and let you know if we are blocked.

Thursday, March 11, 2010

A request to comment using at least a nick

We have given people the ability to comment anonymously but please won't you take the time to comment using at the very least a pseudonym. It makes it easier to have discussions because then people can respond to one another without there be a long string of 'Anonymous says'. You don't have to give away your real name but at least it still allows for discussion.

New law blog

I have been told that I can finally advertise a new collaborative law blog/ print newspaper at UCT. You can find it at . It looks like a fantastic addition to public discussions on law in South Africa. It is currently being edited by Tim Hodgson who is not afraid of being controversial so the blog promises to cover some interesting topics. There are already articles up on corporate governance, polygamy, outing LGBT people without their consent and an article on consumer protection by one of our own bloggers Elizabeth (with Prof Tjakie Naude).

Wednesday, March 10, 2010

Is bad legislation better than no legislation?

I don't know which excuse my fellow bloggers will offer for the thundering silence in the past 6 days. I have a valid one: I have been in Johannesburg for the Department of Trade and Industry's Consumer Protection Law Conference (the DTICPLC) - a veritable feast of highly politicised back patting, irony and starch loaded conference food (I always thought the term fat cat was a metaphor).

Long story short - the aim of the DTICPLC was to discuss 'Changing the Consumer Protection Landscape in South Africa: The Consumer Protection Act 68 of 2008'.

As I think I mentioned before, the CPA is supposed to (and according to the DTI will) come into effect in October 2010. I view myself as a dangerously optimistic person, but not only do I think that this is unlikely, I fear that premature implementation of this legislation will be the end of the already battle weary South African consumer. My reasons?
  • Misinformation - amongst the various pamphlets unleashed at the DTICPLC was the CPA Guide aptly (if you like irony) emblazoned with the following slogan: 'You have rights as a consumer. Understand them. Enforce them.' The guide is not only written in legalese (again, ironic, the CPA demands that all communication with consumers takes place in plain language), it is riddled with omissions and at times patently incorrect. Oh, and almost no mention is made of enforcement measures. The answer to this criticism: We will sort it out once the CPA is in effect.
  • Lack of consultation - one of the aims of the CPA is to consolidate consumer remedies in one act thus presenting a united front against Evil (read: suppliers). The CPA not only fails in that regard, but it would appear that there has been little, if any, consultation with other state departments (think Department of Health, Agriculture etc who administers various pieces of legislation aimed at ensuring that only quality and safe goods reach the consumer) and industry regulators (think insurance, banking etc). The answer to this criticism. We will sort it out once the CPA is in effect.
  • No one knows how to interpret the provisions of the CPA. Consistently the speakers at the conference stated that they have not done a detailed analysis of the CPA because it is too difficult. Again, irony, the CPA is aimed at providing protection to vulnerable consumers, hopefully they won't find the CPA too difficult to interpret. The answer to this criticism: We will sort it out once the CPA is in effect.
  • Gaps in the Act: One example, the Act fails to give alternative dispute resolution agencies (who will form the first line of defence against Evil) the right to refer disputes directly to the National Consumer Tribunal. The answer to this criticism: We will sort it out once the CPA is in effect (can anybody spell ultra vires).

So I guess my question today is: Is bad legislation better than no legislation? (Political gain aside.)

Yours in frustration,

Elizabeth 'the Consumer Protector' de Stadler (my wrestling name)

No abiding place for some of us on this earth

On the 6th of November 2009, BBC online carried a story of a pregnant Somali woman who had been temporarily spared death by stoning until she gave birth. The woman’s boyfriend, Abas Hussein Abdirahman, who had been found guilty of adultery ‘was killed in front of a crowd of some 300 people in the town of Merka.’ A leader of the executioners said the woman would be killed after she had given birth. Later, on the 18th of November 2009, another woman who had been found guilty of the same crime (adultery) was also stoned to death after giving birth. The woman was taken to public grounds where she was buried up to her waist and stoned.

When I read these chilling stories, I could not imagine what these two poor women went through, knowing that after giving birth, they would be stoned to death. Honestly, how does it feel, for a mother to know that they will be stoned to death as soon as they give birth? One would imagine that they probably wish they remained pregnant forever so that they would not face the gruesome killing that awaited them. This is one odd instance where a mother wishes she never had to give birth because of what awaits her after. They could not hide and were not allowed to leave their villages. Their fate was sealed. Death for them was as certain as the rise of the sun.

What these women went through before they were stoned to death is probably what some non-South African brothers and sisters are going through. After the World Cup in South Africa, Xenophobic attacks are a sure thing. Despite the signs being there everywhere, the authorities and a few naive people deny this. There is a genuine and sure hatred of foreigners in South Africa for various reasons (PS By the way, white non-South Africans are tourists while black non-South Africans are foreigners).

The dawn of a post-apartheid era in 1994 excited heightened expectations among the black populace in South Africa. Many people believed that their dreams for a better life would be realized. The ANC government promised ‘a better life for all.’ Those without homes would have homes built for them, the unemployed would become employed, those without land would receive land, the ill-treated would receive justice for their ill-treatment. It was an era that was saturated with promises for an improved living. However, as time wore on, the situation has in fact deteriorated for many. Life is now even harder. Many people have become even poorer and the many promises for a better life have availed to little if anything at all. What has compounded the situation is that the thousands of foreigners in the country seem to be living on cloud nine. They are either employed or are self employed. Either way, they seem to have a decent income. Their lives seem so much better that that of the ordinary black South Africans. They own businesses, drive better cars, some have better jobs and seem to be generally having it easier than South Africans (not knowing that foreigners have to sweat for these things). Without a doubt, this has excited the feeling that they are depriving South Africans of opportunities that otherwise would have belonged to South Africans. As such, driving them away seems a justified way of opening up opportunities for the indigenous populace.

Some of the foreigners have been palpably guilty of wrongs - areas that had less crime before the advent of foreigners are now ‘no go areas’ because of the prevalence of criminal activity. Stories abound of how Nigerians run drug dens in Johannesburg, Cape Town and other towns. There have been reports of how Zimbabweans are guilty of violent crimes in areas such as Hilbrow, Thembisa and Yeuoville. In other towns, foreigners have been accused of selling counterfeit products, fake money, masterminding frauds, human trafficking and other criminal activities. Marginalized South Africans are agitated.

Yesterday (09.03.2010), a traffic police officer bellowed at me, “Niyasisokolisa apha nina bantu baseAfrica! Buyelani kokwenu!!” (You are giving us problems you people from Africa! Go back to your countries!!). This happened after I showed him my foreign drivers’ licence during a routine traffic roadblock. One time, I was in a taxi from Rondebosch to town where the driver was a Somali man. Two passengers in the taxi were conversing in Xhosa – “Aba bantu asibafuni apha. Basithathela imisebenzi.” (We do not want these people here. They are taking our jobs away).

On the 8th of February this year, xenophobic attacks flared up in Siyathemba township in Balfour. Foreigners were attacked and had their property burnt. About 30 foreign nationals had to seek refuge at Balfour police station. In the Western Cape township of Dunoon, locals have already promised foreigners ‘blood and thunder’ after the World Cup. The situation is the same in other townships across the country. We foreigners know what awaits us after June/July 2010. How does one live with the knowledge of these impending attacks? A lot of us come from countries facing severe challenges of governance which have made life there impossible. In Nigeria for example, hundreds of people were literally massacred last week in clashes between Christians and Muslims. Everyone is aware of what is happening in countries such as Sudan, Eastern DRC, parts of Angola, Somalia, Zimbabwe, parts of Uganda and Rwanda and in honesty, where can these people seek refuge? The same fate awaits us in South Africa after the World Cup and what can one say except, [T]here is no abiding place for some of us on this earth. In America and Europe, they despise us for working with Al Qaeda. In Africa, we are accused of taking away opportunities for local nationals. In some of our countries, we are burnt alive, locked up in prisons without food, water or sanitation, mutilated and have our mothers and sisters raped for not supporting so and so. Where can we go?
Only the authorities and a few naive people deny that xenophobia is a reality in South Africa after the world cup. We foreigners are well aware of what awaits us after the world cup. We wonder, those of us who survived last time, will we survive this time around? If we had somewhere to run, we surely would but unfortunately, we have no abiding place on this earth :-(

Thursday, March 4, 2010

New look, still the same old authorities

Thanks to James Saunders our website now has a far more professional look. Those of you on Google Reader should check out the new look. If you have any suggestions for improvements don't hesitate to let us know.

Sachs and Chaskalson on the successes and failures of the Con Court

I posted a quote a while ago by Albie Sachs from the recent Constitution Week (pdf) hosted by the DGRU. The DGRU has now uploaded the podcast from that talk which you can find here. During the talk former Constitutional Court Judges Arthur Chaskalson and Albie Sachs discussed what in their opinion had been the successes and failures of the Constitutional Court during their time there. They were then asked questions by a panel of academics each specializing in an area of law. Judge Davis chaired the event. It was a great chance to watch some of my heroes in law talking about their careers.

The talk itself was interesting. To me the most interesting part of the talk is how differently academics and judges view the role of the courts. Academics are interested in the overall consistency of their area of law and concerned with ensuring that that their area of law is Constitutionally compliant to fullest extent possible.

Judges are concerned with these issues but they are constrained in two ways that academics are not. This is reflected in the answers they gave to most questions posed by the academics. Each question was generally answered with either 'That argument was not raised by the parties before us.' or 'The Court is not the appropriate institution to make those changes. That is best left to the legislature.'

The questions posed by the academics were very interesting but unfortunately often the judges didn't get to fully respond to the merits of the questions because the judges were thinking off the top of their heads and often hadn't considered a particular case/ area of law in many years.

The other interesting part of the talk was how important things were to the Court that we don't consider at all during our law degrees. For instance, how the Court is administered by the Chief Justice (and registrar), how approachable the courts appear (for instance, the importance of the design of the court and the colour of the robes worn by the judges). Also of key concern to the Judges was the role of collegial discussion between the various judges when deciding cases. None of these aspects of courts or judges are given serious consideration in our law courses but clearly judges consider them important to the functioning of the courts.

Anyway, give the podcasts a listen if you are interested.

Wednesday, March 3, 2010

Call for Constitutional Court Clerks

The Constitutional Court has called for applications for clerking positions for 2011. I am not sure when they posted this to their site but I only just saw it today. Applications are due by the end of March.

You can see the call for clerks here (word document).

Monday, March 1, 2010

Refreshing Views from the Office of the Presidency

Given all the Zuma-pessimism of late, it was good to have a flash of optimism last week. I went to a Constitution Week talk where one of the speakers was Dr Bongani Ngqulunga who works in the Office of the Presidency and, as I understand it, is in Zuma’s inner circle. To my surprise, he was open to engagement on tough issues and was refreshingly critical of the government.

Particularly, he acknowledged that a large part of the problem with public service delivery is a lack of accountability for officials rather than a lack of capacity. This makes a stark change from Mbeki’s stubborn protests that all problems of delivery come down to a lack of capacity – not enough manpower, too few skilled employees etc. By contrast, Dr Ngqulunga admitted that in many instances public officials are just unwilling or too lazy to help the people that come to them, and know that they can get away with it.

The reason he gave for this is that the middle class sends its children to private or high performing public schools, pays its utility bills online rather than at municipal offices and uses private rather than public health care. On the other hand, the lower classes and the indigent don’t have that option so have to interact with and rely on government officials. Government officials know that this group of people probably aren’t aware of their rights and don’t have the means to get legal advice – so when an official tells someone that has been waiting in line for 5 hours to come back tomorrow because he’s too busy, that person will probably do so without asking questions.

This may all seem like pretty obvious reasoning. Granted, it’s not profound, but the fact that the Presidency is acknowledging it is. The first step in fixing a problem is acknowledging that it exists. Optimism seems a fitting response after years of Mbeki waving off responsibility with his magic capacity wand.

Some very controversial judgments

The Courts have been busy recently releasing some controversial judgments:

The Labour Court has ruled that the failure to promote a white female officer in the police force was discriminatory. More consideration needed to be given to her rights to equality and dignity and there needed to be consideration of her personal work history and circumstances. Find the judgment here (pdf). This promises to create quite a stir in the media in the next few days and I will try and get someone with labour law knowledge to write a post.

The SCA has ruled that Robert McBride was defamed by The Citizen newspaper who called him a murderer. The SCA reasoned that since McBride had been granted amnesty for the crimes concerned he was no longer a murderer. See the judgment here (pdf).

I find this latter judgment quite troubling for a few reasons. If someone gets amnesty it doesn't mean that retroactively they did not kill someone illegally. To that extent the person is surely a murderer. Even if legally you're no longer a murder, in common parlance it seems that the person is still a murderer albeit an excused one.

The SCA jumps this linguistic hurdle by arguing that a purposive reading of the Promotion of National Unity and Reconciliation Act 34 of 1995 (PNURA) shows that amnesty should also remove the label of being a murderer so the excused person can reintegrate into society. Now there may be substantial benefits to integrating someone who has been granted amnesty back into society. However, it seems very dubious that we should limit the right to freedom of expression of the media in order to give effect to something that has not been expressly stated in a statute. To make this more clear, the PNURA does not expressly state that people who committed crimes are no longer to be labeled murders. The SCA are reading this in order to give effect to promoting reconciliation. Purposive reasoning is an important part of legal reasoning but it shouldn't be used to limit rights particularly rights that are so foundational to a democratic order.