For Voet's Sake!

Awesome photo blog

2010-04-28T08:58:00.004+02:00

I couldn't resist posting this amazing photo by Adrian Bischoff. The graffiti is from a derelict building very close to the various Chambers in Town and on the same street as the Cape High Court. So quite appropriately placed. Find the Adrian's photo blog with other great photos at photoapparat.org.

De Vos on what makes a good judge

2010-04-19T14:56:00.003+02:00

Check out this interesting link for Prof De Vos' view of what a judge in South Africa should look like. I am not entirely sold but will put up a post later today with my own views.

Good op-ed on judicial selection

2010-04-14T12:41:00.004+02:00

Check out this article by Geoffrey Stone on judicial selection in the United States. Stone is arguing in the context of the American Constitution but the general points are still applicable to the South African constitution and judiciary. The article gives a decent outline about why the type of judges we appoint matters. What the Constitution and the law requires is not only a matter of application. Judges also engage in extensive moral and political reasoning. So, the moral and political philosophies of our judges can be an important determinant of the outcome of cases (particularly the cases that reach the SCA and Con Court).

Judicial selection in South Africa

2010-04-13T11:15:00.008+02:00

The Judicial Services Commission (JSC) is currently in the process of filling 30 vacancies around the country. In the USA a Supreme Court position has just fallen open with Justice John Paul Stevens retiring. It is quite damning that people reading South African newspapers will probably hear as much, if not more, about the US selection process than they will about the South African process. Granted, in the USA Obama will be appointing a Supreme Court judge while here there are no Constitutional Court judges being appointed. However, I would wager that the coverage we get on Stevens will still surpass the coverage we got on the appointment process last year of a number of seats on the Constitutional Court. In light of this I thought I would do a very short post on how judicial selection happens here in South Africa.

The Constitution sets out the basic framework by which judges are appointed in South Africa. The Constitution gives both procedural requirements and substantive considerations for the appointment of judges.

The procedure to follow when appointing judges varies according to what vacancy is being filled. If the posts of Chief Justice and Deputy Chief Justice (who head the Constitutional Court) are being filled then the President must consult with the JSC and leaders of the parties represented in the National Assembly. This procedure was brought into dispute last year when President Zuma intimated that he was going to appoint Justice Sandile Ngcobo without first consulting heads of the parties in the National Assembly.

If the posts of President and Deputy President of the Supreme Court of Appeal are being filled then the President need only consult with the JSC.

The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

The JSC must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.
The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.
The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.

The President must appoint the judges of all other courts on the advice of the Judicial Service Commission.

Some important points about this procedure: Although the President is making the appointments his discretion is very circumscribed by the obligation to consult with the JSC and use nominees made by the JSC. This is in contrast with the USA where the President often introduces a candidate and then has to convince the legislature to pass the nomination.

This then begs the question as to how the JSC reaches its own shortlist that it hands over to the President. I won’t go into detail here (since frankly I am not entirely sure) but suffice to say the following people are members of the JSC: the Chief Justice, President of the SCA, one Judge President of the various High Courts, the Minister of Justice, two practising advocates to represent the profession, two practising attorneys, one teacher of law, six persons from the National Assembly, four persons from the National Council of Provinces, four nominees of the President and when considering High Court matters, the Judge President of that High Court and the Premier of that province.

So, the JSC is composed of a high percentage of politicians (many of which will be pushing an agenda very similar to the President’s agenda). But it also has a number of members that will be semi-independent of that political influence like the members of the judiciary and the profession. I am told that the opposition politicians that sit on the JSC are often some of the most vocal (De Lille from the ID, Van der Merwe from the IFP and Schmidt from the DA) and active during the questioning which suggests that they may play a larger role than expected in the JSC’s final decision. How the JSC arrives at its final decision is still slightly murky.

As mentioned above, the JSC is currently interviewing people to fill 30 vacant positions at various courts around South Africa. It will then recommend names to the President who will then appoint those people.

What the procedure does not tell us is what sort of person should be appointed to the bench. Here the Constitution (correctly) gives very little guidance. It merely stipulates that such a person must be appropriately qualified and for Con Court positions be a South African citizen (s 174(1) of the Constitution). The JSC must also consider the need for the judiciary to reflect the racial and gender composition of South Africa (s 174(2) of the Constitution).

However, besides these constraints the Constitution doesn’t say whether the people should be executive minded, liberal, conservative, a positivist, a Dworkinian etc. There is an unfortunate lack of discourse in South Africa around what type of people should be appointed as judges. The Democratic Governance and Rights Unit has released a good paper outlining their vision of what judges should look likethat you can find at this link (pdf). But besides this and the very occasional op-ed in a paper it doesn’t get discussed. I will put up my own thoughts in the future on what a good judge in South Africa would look like and try and harass friends into doing guests posts on it. Till then I would appreciate hearing your thoughts.

Dumisa Ntsebeza is a Presidential appointee but also an advocate. He was in the papers today because of his (entirely correct) questioning about the appropriateness of appointing white males to the bench in the Eastern Cape.

Legal reasoning 3: Rules versus principles

2010-04-07T15:58:00.004+02:00

My fellow bloggers and I have been bogged down with marking and tutoring so we haven’t posted anything interesting in a few weeks (I happily acknowledge that legal reasoning is far from interesting for most people) but I have promises from some of them that we should get some new content up in the next few days.

Tim posed an interesting challenge to the possibility that courts create new law when they distinguish cases (see the comments to last weeks post on distinguishing). In thinking of my response I realized that a very useful legal reasoning post would be on the difference between rules and principles. Once again, this post is aimed at people interested in thinking about legal reasoning.

Rules and principles are both legal norms that tell us how a particular decision should be decided. Take the following example:

Rule: If a person stays on someone else’s land for an uninterrupted period of 30 years without force, stealth or permission but with the intention to be owner then that person becomes the owner of the land.

Principle: Property law should protect legal certainty.

Imagine that a decision arises in which a court is faced with a situation where someone has camped on land for 30 years believing that they were the owner without the real owner’s permission. Both the rule and the principle point towards the same outcome: the camper should be made the owner of the property. The rule requires that outcome since the camper has camped uninterrupted for 30 years without force, stealth or permission believing herself to be the owner. The principle also suggests the outcome since making the camper the owner would promote certainty since people would have already thought that she was the owner and by recognizing this the law generates more certainty.

So what then makes rules and principles different? Here I am just going to quote extensively from the legal philosopher Ronald Dworkin:

“The difference between legal principles and legal rules is a logical distinction. Both sets of standards point to a particular decision about legal obligation in particular circumstances, but they differ in the character of the direction they give. Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision.”

On the other hand, principles operate in a different way. Principles don’t operate in the all-or-nothing fashion that rules apply in. Principles are reasons for or against certain outcomes in a case but principles don’t necessitate an outcome.

If we return to the example I gave above. Although one of the principles of property law is to promote certainty there are many situations in which property law would enforce an outcome that doesn’t promote certainty. For instance, if I take your bike the court will still make me return that bike to you. This undermines legal certainty (everyone who saw me riding the bike would have thought the bike was mine). However, the principle of certainty was outweighed by other considerations. So, the principle of legal certainty is a reason for an outcome but that reason can be overcome by other reasons.

A famous example of the application of principles in legal reasoning is the case of Riggs v Palmer (made famous by Ronald Dworkin). In that case a New York court had to decide whether an heir named in his grandfather’s will could inherit under the will even though he killed his grandfather. The court admitted that the rules that applied to the case clearly established that the murderer could inherit. However, the court continued on to say ‘all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong… or to acquire property by his own crime.’ The principle is that “none shall profit from their own wrong.” On the basis of that principle the court decided that the murderer could not inherit from their grandfather.

This principle is not a rule. The principle in the example was a reason for the outcome that the court reached but it did not act as an all-or-nothing reason. In law there are countless examples of where we let people profit from their own wrongs. For example, if you are speeding to make some very profitable deal that will close soon and you knock a pedestrian on the way we will still let you keep the profits from the deal (although you may have to compensate the pedestrian). This is not because all of those instances where we do let people profit from their wrongs are exceptions to the general rule. Rather, courts have weighed various principles against each other and decided that the principle that ‘none should profit from their own wrong’ was outweighed by other principles.

Our law is composed of both rules and principles. Knowing the difference between them will help you make better arguments in court. If there is a rule that operates in your favour then you will tell the court that the rule applies and so the court shouldn’t even consider other principles. However, if you don’t want the rule to apply you may argue that the court should have regard to a host of principles that support overruling the rule. The court would then have to decide whether to apply the rule or overrule it in favour of some legal principles.

Dworkin: Nerdy but awesome.

Happy Birthday dear Codex

2010-04-07T13:47:00.003+02:00

Forgive me blogosphere for I have sinned, it has been three weeks since my last blog, no, wait, my last independent thought.

Today marks the anniversary of the publication of the Codex Justinianus (7 April 529), Justinian's first project in the compilation of the Corpus Iuris Civilis*. Simply put, the Codex was a compilation of the constitutiones (the pronouncements of the Emperors, similar to statutes).

According to Nicoholas (An Introduction to Roman Law, 44) 'Justinian's importance lies in his having succeeded, at a moment when the ancient world was dissolving, in collecting together, in a form which could survive, the literature of the Roman law.'

To this day the Corpus Iuris Civilis is a direct source of South African law.

I realised today why Justinian was so prolific when it came to his codification endeavours. He was a crap soldier.

*The Corpus Iuris Civilis later included the Digesta, the Institutiones and the Novellae.

Legal reasoning 2: Distinguishing

2010-04-01T14:44:00.003+02:00

This post is the second in a series on legal reasoning aimed (mostly) at first year law students. I would advise you read last week’s post on precedent before reading this if you’re interested. Sorry its not Wednesday as promised. I wrote this yesterday, looked at it and realized that the example that I had written up was completely wrong so I needed to find a different example. Fail.

It is often said that the common law is a flexible system of law that adjusts to the requirements of justice over time. This is confusing. If we follow a system of precedent, cases may arise where courts must follow an earlier precedent despite that it creates an injustice when applied to the new case. This seems neither flexible nor just. So, why do judges still believe the common law is flexible and leads to justice?

The truth is that judges find ways to ensure justice between parties. There are a few mechanisms a court can use to achieve this. The most common practice judges use to ensure justice in a particular case is through the use of distinguishing. So, when a court is confronted with a precedent that creates injustice in the case before it, the court may be able to distinguish it so the court needn’t apply the precedent. In what follows I want to give an account of distinguishing that draws very heavily on a legal philosopher called Joseph Raz.

It is important at the outset to highlight the difference between distinguishing in the strong sense and distinguishing in the weak sense. Distinguishing in the weak sense is when a court determines that the ratio of the prior case does not apply to the instant case. Let us look at this on an abstract level. Assume that the ratio of a case says that the rule applies if the operative facts a, b & c are present. So, if the instant case has facts a, b, c then the rule will apply. However, if the instant case has facts a, b, NOT-c then the rule does not apply. This is the weak form of distinguishing because all that the judges are determining is that, on the facts, the rule does not apply in the instant case. Last week’s post highlighted this with the example around the death penalty and treason. There is nothing special about this type of distinguishing but it is still quite a complicated process.

Distinguishing in the strong sense is different. This strong sense of distinguishing (which I will just call distinguishing from here) means changing a rule that does apply to the instant case so that the newly formulated rule no longer applies to the instant case. Going back to the example above, imagine the instant case had facts a, b, c. So, the precedent rule would clearly apply. But, the court can say, we’re changing the rule so that it requires a, b, c, and e. The instant case has facts a, b, c, NOT-e and so the newly formulate rule does not apply to the instant case. Clearly, what we have here is not distinguishing on the facts but instead changing what the rule actually is. Courts often do this but they aren’t very honest about the fact that they are creating a new rule.

This is all very abstract. Some examples should make this clearer. Imagine a case like this. Person P1 builds a house on a farm that he did not own but believed he owned. The true owner O1 then claims possession of his property. The court looks at the situation and makes the rule that says “an owner can reclaim his land provided that he compensates the possessor for improvements made by the possessor”. On the facts, P1 improved the property of O1 therefore (applying the rule) O1 may get the farm back only if he pays P1 for the improvements. This case is the precedent case.

Imagine a new case (the instant case). P2 knows that he is not the owner of a farm but he builds a house on it. O2 then wants to reclaim the property. So, he sues P2 for return of possession. P2 responds by saying, “I will only give you possession if you pay me compensation for the house I built.” A court looks at this situation. The rule from the precedent case states that “an owner can reclaim his land provided that he compensates the possessor for improvements made by the possessor.” But the instant court realizes that this would be an inequitable outcome – why should P2 get any compensation when he knew that he was not the owner of the farm? To overcome this injustice, the instant court reformulates the precedent rule as follows “an owner can reclaim his land provided that he compensates the good faith possessor for improvements.” So, the new rule now requires that the possessor made the improvements believing that they were entitled to so do. The instant court now applies the newly formulated rule to the facts of the case. Clearly P2 knew he wasn’t owner. So, O2 could reclaim possession of the farm without compensating P2 for possession.

The important things to extract from this example are as follows. A precedent creates a rule. The instant court is then faced with a rule that creates an unfavourable outcome. So the instant court reformulates the rule by adding a new condition that changes the old rule by limiting its application. In the above example this was done by adding the condition that the possessor had to be in good faith (genuinely but mistakenly believe they were entitled to possession).

The second important thing to extract from the above example is that when the instant court reformulates the precedent into a new rule, the modified rule must still justify the outcome in the precedent case. In other words, if the court were to apply the new rule to the facts of the old precedent case it must reach the same outcome that the precedent case reached. This is the case in the above example. If you apply the newly formulated rule to the facts of the old precedent case O1 would still have had to compensate P2.

Bloggers for press freedom

2010-03-24T20:21:00.001+02:00

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:

http://thoughtleader.co.za/siphohlongwane
http://rwrant.co.za
http://vocfm.co.za/blogs/munadia/
http://vocfm.co.za/blogs/shafiqmorton/
http://blogs.news24.com/needpoint
http://capetowngirl.co.za
http://thoughtleader.co.za/sentletsediakanyo
http://thoughtleader.co.za/davidjsmith
http://letterdash.com/one-eye-only
http://boyuninterrupted.blogspot.com
http://amandasevasti.com
http://blog.empyrean.co.za/
http://letterdash.com/brencro
http://6000.co.za
http://chrisroper.co.za
http://pieftw.com
http://hamishpillay.wordpress.com
http://memoirs4kimya.blogspot.com
http://thoughtleader.co.za/azadessa
http://watkykjy.co.za
http://fredhatman.co.za
http://thelifeanddeathchronicles.blogspot.com/
http://blogs.timeslive.co.za/common-dialogue/
http://www.clivesimpkins.blogs.com/
http://mashadutoit.wordpress.com
http://nicharalambous.com
http://sarocks.co.za
http://blogs.timeslive.co.za/stompies/
http://helenmoffett.book.co.za/blog/
http://01universe.blogspot.com
http://groundwork.worpress.com
http://iwrotethisforyou.me
http://fionasnyckers.book.co.za
http://attentiontodetail.wordpress.com
http://blogs.women24.com/editor
http://www.missmillib.blogspot.com
http://snowgoose.co.za
http://dreamfoundry.co.za
http://www.vanoodle.blogspot.com
http://www.exmi.co.za/.co.za
http://cat-dubai.blogspot.com
http://alistairfairweather.com
http://www.zanedickens.com
http://www.nickhuntdavis.com
http://guysa.blogspot.com
http://book.co.za
http://baldy.co.za
http://skinnylaminx.com
http://blogs.african-writing.com/zukiswa
http://www.mielie.wordpress.com
http://blogs.timeslive.co.za/gatherer/
http://thoughtleader.co.za/sarahbritten
http://stii.co.za
http://blogs.news24.com/FSB_AP
http://twistedkoeksuster.blogspot.com
http://whensmokegetsinyoureyes.blogspot.com/
http://trinklebean.wordpress.com
http://commentry.wordpress.com/
http://matthewbuckland.com
http://blogs.news24.com/colour-me-fran
http://gormendizer.co.za
http://forvoetssake.blogspot.com

Legal reasoning 1: Precedent

2010-03-24T15:43:00.007+02:00

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.

Truth and amnesty.

2010-03-19T14:40:00.003+02:00

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...

2010-03-19T13:37:00.002+02:00

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!

Professor Fagan's graduation poem

2010-03-18T11:04:00.004+02:00

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!"

What are your rights when stopped at a roadblock?

2010-03-15T14:22:00.007+02:00

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:

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.

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 http://www.health24.com/tools/bloodalcohol/start.asp.

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.

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.

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

2010-03-15T14:05:00.005+02:00

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

2010-03-15T10:33:00.004+02:00

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.

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

2010-03-12T12:41:00.005+02:00

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

2010-03-12T10:53:00.010+02:00

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.

A request to comment using at least a nick

2010-03-11T10:07:00.002+02:00

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

2010-03-11T09:52:00.005+02:00

I have been told that I can finally advertise a new collaborative law blog/ print newspaper at UCT. You can find it at altumsonatur.blogspot.com . 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).

Is bad legislation better than no legislation?

2010-03-10T13:37:00.004+02:00

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

2010-03-10T11:14:00.009+02:00

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 :-(

New look, still the same old authorities

2010-03-04T15:41:00.004+02:00

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

2010-03-04T09:34:00.008+02:00

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.

Call for Constitutional Court Clerks

2010-03-03T12:42:00.002+02:00

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).

Refreshing Views from the Office of the Presidency

2010-03-01T14:50:00.010+02:00

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

2010-03-01T14:03:00.003+02:00

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.

Where has all the private law gone?

2010-02-26T16:33:00.005+02:00

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

2010-02-26T14:29:00.002+02:00

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...

2010-02-24T16:18:00.002+02:00

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

2010-02-23T16:32:00.007+02:00

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

2010-02-23T10:03:00.005+02:00

"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

2010-02-19T14:59:00.003+02:00

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:

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.
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

2010-02-17T12:46:00.005+02:00

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

2010-02-16T13:14:00.006+02:00

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:

Get constant intelligence about your students. Work out what your students are thinking using things like surveys and informal/formal class discussions.
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.
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.
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.
Join a teaching network. Get a group of fellow lecturers with whom you can meet up and chat about teaching.
Attend workshops and seminars on teaching. These are often very useful.
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.
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

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.
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.
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.
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:

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

2010-02-15T12:10:00.000+02:00

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

2010-02-15T11:35:00.000+02:00

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

2010-02-15T10:03:00.000+02:00

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

2010-02-13T08:49:00.001+02:00

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

2010-02-12T10:37:00.001+02:00

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

2010-02-12T10:28:00.000+02:00

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

2010-02-11T12:28:00.000+02:00

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

2010-02-11T12:06:00.000+02:00

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

2010-02-11T11:24:00.000+02:00

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

2010-02-11T09:33:00.000+02:00

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.