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Human Rights: A Step In The Right Direction

April 1, 2016  |  by admin  |  in BlogNo Comments

The African Charter on Human and Peoples Rights which was adopted in Nairobi circa 1981, June 27 and subsequently entered into force circa 1986, October 21. Provides and recognizes that: ‘’ the fundamental rights stem from the attributes of human beings, which justifies their national and international protection.’’

Our #Constitution has similar values embedded in the preamble, and has ameliorated and entrenched these values into the Bill of Rights: ‘’ The South African legal system is beginning to mirror the protection of rights as provided for in the Charter, thereby ensuring the protection of human rights through incorporation of the African Charter norms, into the South African legal system.’’

When we initially wrote on human rights, we did so in a manner that reported on the celebrations of the particular day, what we have observed since – there isn’t a day that goes by without the subject of human rights in our lives. We read newspapers daily on gross violations, yet we also read of stories where lives are touched. We watch and exchange legal material and texts surrounding litigation on human rights. There isn’t an avenue and or arena of life and commerce that isn’t affected by human rights.

A Good Story To Tell:

  • South Africa has a South African Human Rights Commission Act, which guides the Commission on the exercise of its duties
  • The Ten Top South African human rights achievements
  • Our Independent Judiciary (see @whyjudgesmatter on Twitter)
  • Amazing South Africans, doing amazing things: Abahlali baseMjondolo Shack Dwellers Movement
  • The Office of the Public Protector (which acts as a watchdog for the citizens of the republic)

On a daily basis we head out to our respective workplaces, we stop on traffic lights and see a country that is moving, a country that is working – alive with possibility. And it is with this pioneering spirit of the people, we will together strive for the promotion, awareness and exercise of human rights. A step in the right direction, indeed.

Additional Reading:


The African Charter on Human and Peoples Rights
Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others (CCT12/09) [2009] ZACC 31; 2010 (2) BCLR 99 (CC) (14 October 2009)

Omar Al Bashir & the ROME Statute: A brief account on the S.A litigation

April 1, 2016  |  by admin  |  in BlogNo Comments

A few years ago, a critical Op-ed was penned the former President of the Republic of South Africa, Thabo Mbeki  and Mahmood Mamdani– on the subject matter:  addressing the bias surrounding African heads of State, held by the International Criminal Court ‘’ICC’’ and enforced by its treaty, the Rome Statute . Broadly speaking, International law.

There have been various debates on what International Law is, and what it isn’t, and whether or not it is a sophisticated form of law – which is another area of vast, exciting debate in its own right. The subject matter of this post however, is the timeline of events following the visit of Sudanese President Omar Al Bashir in June 2015, for the AU Summit – and the litigation that ensued soon after due to South Africa’s obligations as per the Statute.

’Omar Al Bashir not above the Law

– Trengrove SC

Timeline:

June 2015, Sudanese President Omar Al Bashir enters the republic  to attend AU Summit – South Africa being a signatory to the Statute was obliged to arrest, or hand him over to the ICC where he’d be prosecuted for said crimes.

Southern African Litigation Centre (SALC) takes Government to court – The Pretoria High Court issues interim order to bar Bashir from leaving the republic, yet in an almost theatrical fashion despite the order of court, Bashir leaves. Court calls Government’s move to allow the exit of the head of state ‘’unconstitutional’’, which lead to a bevy of headlines on the matter.

August 14, the State files for leave to appeal the High court decision. State’s case hinged on the argument that the court erred in asking:

whether a Cabinet resolution coupled with a ministerial notice is capable of suspending the country’s duty to arrest a head of state’’, when it should’ve rather asked: whether there was a duty to arrest a serving head of state under South African law at all. And, if such duty exists, the courts should have asked whether any countervailing duties exist, and how to resolve any potential disputes between these two duties.

September 2015, the High court dismisses the application for leave to appeal. Citing that the matter was now moot, and didn’t show prospects of success. State then petitions SCA for appeal, at the appeal, the Helen Suzman Foundation argued that, the #Constitution places a further burden on the state, to ensure persons accused of crimes against humanity are brought to task .

The international community tends to focus on criminalizing the perpetrators of violence

– Mamdani, Mbeki

Judgements:

The court dismissed the state’s appeal, on the basis that Bashir’s diplomatic immunity was removed by section 10(9) of the Implementation Act of the Rome Statute. It found that the failure to arrest and detain Bashir and surrender him to the ICC was unlawful, and consequently, unconstitutional.

It has certainly made for robust discourse on International and domestic law in our shores. Browse the SCA Judgement here:

It is absurd to argue you can only arrest a head of state accused of international crimes by ICC if he waives his immunity

. – Trengrove SC

South Africa under a legal duty to respect the personal immunity of a serving head of a foreign state

. – Gauntlet SC

Further Reading:

For a comprehensive list of the countries who have ratified the statute:

Opinion Piece:

Courts Can’t End Civil Wars

– Mamdani, Mbeki nyti.ms/21PIHPp

POINT OF ORDER: When to raise it?

March 9, 2016  |  by admin  |  in BlogNo Comments

Given the re-newed interest in governance, what with increased viewership of the RSA Parliament, and general prima facie public input on lawmakers, legislative bodies, members of Parliament and matters affecting them, case in point the public interest and engagement in #SONA2016: State of the Nation Address 2016. There has been a heightened rise in the jargon used in Parliament meetings by the layman on the streets, which is frankly positive given that members of Parliament represent constituencies (your interests) – it therefore pays to be ‘in the know’.

A phrase that has gained notoriety in recent times, made famous by members of Parliament, but is additionally used in meetings et al, is ‘Point of Order’.

A ‘Point of Order’ is a tool, which is used to draw attention to a breach in procedural rules, an irregularity, the irrelevance or the continued repetition of a speaker or breaching of the established practices.

When and how can a point of order be invoked?

If a member thinks the meeting does not follow the rules, he or she can raise a point of order.

A member may raise a point of order to:

  • remind the meeting of a rule;
  • point out that a member is off the point;
  • point out that a member is talking for too long;
  • point out that a member does not have the authority to act in a certain way &
  • complain about bad language

To raise a point of order, one would have to stand up and say: “Point of Order”. One must then sit down again and wait for the Chairperson’s permission to speak. The Chairperson may then allow you to say/state what the point of order is. The Chairperson must decide if the point of order is valid before the meeting can continue.

It is a procedural tool at best.

Language Matters

March 9, 2016  |  by admin  |  in BlogNo Comments

There are 11 official languages in the Republic of South Africa, yet somewhat surprisingly we still have institutions of higher learning that haven’t made positive strides in language integration, and those who have only made provision for specific languages. This is the state of affairs as we know it.

Last week, the University of the Free State (UFS), and the University of Pretoria (UP) #UPBlackMonday ‘Black Monday’ derived from the circa 1987 Dow Jones plummet to epitomise the grave losses, were marred with student protest action, and the protest action of outsourced workers. This is not the first time SA universities make headlines, only a few months ago did the republic bear witness to the #NationalShutdown and #FeesMustFall movements (see: The progressive realisation of socio-economic rights: #FeesMustFall http://bit.ly/1O4bI43 )

In the beginning, we are sold this Kovsie dream

– UFS Student, The Daily Maverick

At UP, groups of students clashed over the different views on the university’s policy on language. The proposition for English to be the primary medium of instruction had been raised, the various bodies and stakeholders of the university were said to have convened to discuss these propositions. As per Times Live article, that meeting was postponed. In the UFS, UFS Vice Chancellor and Rector Professor Jonathan Jansen, condemned the violence and racial aggression at the university.

It’s basically mob justice. Anyone can beat you. Anything can happen.

– UFS Student, The Daily Maverick

Language Policy, are we all talk and no action?

The department of education has an important role to enforce language policy, Languages, inter alia are protected under the Constitution in terms of Section 30 ‘Language and Culture’ clause. The issue of language policies is a multi-tiered one, it affects education from its basic foundational phase, education at a higher level (universities) and the autonomies of the universities – which presupposes a balancing exercise. What we are now seeing is the result of long stemming problems that the country has been facing. According to a report in the Mail & Guardian publication: ‘Language policy lets pupils down’, Children the world over have the same potential for mathematics when they enter school, but South Africa is not harnessing this latent capability because of shortcomings in its policy on language in education.

Therefore for language policies to be implemented, it will take a cumulative effort from all parties concerned, starting at the very foundational levels. It is a greater debate, with two main diverging schools of thought.

This article will be followed-up in the coming weeks to see how the various stakeholders meet minds and find progressive solutions to SA’s educational language debacle. We should after all, a hopeful democratic nation.

NZIMANDE IN URGENT TALKS OVER UNIVERSITY OF PRETORIA PROTESTS, Times Live http://bit.ly/1S9RJpr

LANGUAGE POLICY LETS PUPILS DOWN, Mail & Guardian http://bit.ly/1Tp03TT

*Suggested further reading: Bi- and multilingual universities: EUROPEAN PERSPECTIVES AND BEYOND, Edited by Daniela Veronesi, Christoph Nickenig

Chapter 9 Institutions: The Powers Conferred to the Public Protector.

March 9, 2016  |  by admin  |  in BlogNo Comments

Chapter 9 Institutions: The Powers Conferred to the Public Protector.

The jurisdiction of Public Protector Thuli Madonsela and the degree to which Parliament can hold her accountable has come under intense scrutiny in Parliament and the debate is likely to rage for some time with neither side agreeing.

– Wyndham Hartley, BDLive 2013

The above quote, was published in an Op-ed 3 years ago, the powers of the Public Protector have been the subject of debate for quite some time. Advocate Thuli Madonsela currently holds the high ranking office of the Public Protector, with Advocate Kevin Malunga as her deputy in office, together overlooking and looking out for, and protecting the interests of the citizens of this country.

What are Chapter 9 Institutions?

They are the ‘State Institutions Supporting Constitutional Democracy’. These institutions include, inter alia the Human Rights Commission; Commission for Gender Equality; Auditor General and the subject of this write up – the Public Protector as per section 181(1) of the Constitution. Section 181(2) makes further provision for the independence of these institutions, consequently, they’re only subject to the Constitution and the law. The area of contention however, which has led to robust debate and recently – litigation, lies with section 181(4), the subsection states: No person or organ of state may interfere with the functioning of these institutions. Is this provision too vague?

Chapter 9 Institutions serve a pivotal role in the country, they are to act with impartiality, dignity and effectiveness.

The Mandate of the Public Protector’s Office

Loosely put, the Public Protector’s office does exactly that – it protects the public. Its powers are regulated by national legislation, with the promulgation of the Public Protector’s Act ‘’the Act’’. The office is to:

  1. To investigate any conduct in state affairs, or in the public administration in any sphere of
    government, that is alleged or suspected to be improper or to result in any impropriety or
    prejudice;
  2. To report on that conduct; and
  3. To take appropriate remedial action

    4. .

Most importantly, the Public Protector doesn’t act as anyone’s legal representative, this is in the interests of impartiality and accountability. The Act stipulates how one may report a matter to the office and various other powers. Given the recent constitutional court case RE: #NkandlaReport, the question of the extent of the office’s powers have finally been settled, for now they are binding.

I will not stop doing what section 181 (5) of the Constitution says I must do.

– Adv. Thuli Madonsela

*NEWS ANALYSIS: Public Protector’s Powers Under Intense Scrutiny, BDLive http://bit.ly/1TqzcXu

*Public Protector Act, 1994 [No. 23 of 1994], SAFLII http://bit.ly/1RJpX0U

* The 1996 Constitution of the Republic of South Africa http://bit.ly/1tpHH2o

Civil Trial Roll Call In The Gauteng Local Division

February 13, 2016  |  by admin  |  in In The News, UpdatesNo Comments

Notice from the Office of the Deputy Judge President.
Published: 10 February 2016
Download here.

“…But that’s racist!” Racism, and what the Law says about it.

February 8, 2016  |  by admin  |  in BlogNo Comments

It is always a sad day when human beings are likened to animals, more so in condescending tones filled with malice and prejudice. Only a few days into 2016 and the newsstands; social media and South African Human Rights Commission (SAHRC) is abuzz with calls rallying against racism. Have the levels of racism in South Africa risen, or have we started being vocal against it? Or perhaps, for the longest time as a country, we have merely wished it away.

The country was in mass hysteria following #PennySparrow’s, a former real estate agent for a prominent property group in South Africa went on a social media outburst and referred to black people as “monkeys”, she also mentioned her disdain over having black people on beaches: “I’m sorry to say I was amongst the revellers and all I saw were black on black skins what a shame…this lot of monkeys just don’t even try.” She then went on to apologize following a backlash and complaints following her post on Facebook. This is only one in several incidents that happened in that very same week, similar posts were posted by celebrities and newsreaders among others. It evidently is 0a prevalent problem, one that we cannot simply wish away, one that needs serious address and legislative intervention.

Racism

Image Source: SA Online History Archives

“It reminds us of the economic injustice that continues. Black people save up a lot of money over the year to visit beaches”

Sello Hatang (Nelson Mandela Foundation)

What is “racism”?

The preamble of the South African #Constitution which is the repository of all state power (Greys Marines), states “South Africa belongs to all who live in it, united in our diversity.” Thereby providing that all conduct should be in line with the #Constitution, racism is not, effectively making it unconstitutional. Racism simply put is the marginalisation of another racial group, by another. This may entail the deprivation of resources based on the race of certain individuals. There is an on-going debate surrounding ‘reverse racism’. A follow-up article will address this discussion.

The movement shall be… #hashtagged, tweeted, posted?

Are we in the era of hashtag revolutions? Type a simple hashtag and you find the conversation and interaction surrounding the hashtag, some of these hashtags trend worldwide. Social Media has also proved to be somewhat of a ‘search engine’, however people should discern the type of content they find online, it is usually someone else’s opinion and musings. Social media guidelines should be followed.

How do we move forward?

A nation cannot move forward and heal, if the issue is unacknowledged, one of the reasons why racism is still an issue is the blunt inequalities and rife economical discrepancies among the minorities and majorities of this country – therefore, these issues too must be addressed. Access to resources ought to be promoted. There are already measures in place for economic redress, viz BEE; AA; EE et al. Furthermore, the law’s position on hate speech is addressed through inter alia, the Promotion of Equality and Prevention of Unfair Discrimination Act – which has a wide prohibition on hate speech. One may also file an action against hate speech based on the crimen injuria doctrine.

We need a more unified approach to resolving racism, it will take inclusive action, the resources of this country after all belong to all who live in it.

*Grey’s Marines v Hout Bay v Minister of Public Works 2005 (SCA)
*The 1996 Constitution
*Promotion of Equality and Prevention of Unfair Discrimination Act
*Sunday Times January 10 2016

Matrics 2015: The Journey to Success?

February 8, 2016  |  by admin  |  in BlogNo Comments

The class of 2015 is the 8th group of learners to read for their National Senior Certificate (NSC). Matric results for the year 2015 were released January 5th 2016, preceded by the release of results, the Minister of Basic Education Angie Motshekga broke down the stats per province at a press conference in Midrand, which was televised. With the Western Cape province boasting impressive numbers, standing at 84.7% pass rate for the National Senior Certificate.

In the past, before the age of Twitter and social media, we’d see coverage of these results with students rising early an embarking to newsstands around South Africa to see if their names had appeared on the paper. Followed by various news reports, covering students with euphoric screams and jubilant faces – fast forward to 2016, and we see hashtags dedicated to matrics’ entering varsity on how to ‘survive’. Yet what happens to the portion that doesn’t make it to university, or the portion that doesn’t pass matric. What avenues and alternatives has the country created for them? Bearing in mind, as per News24 report, that ‘it takes an estimated 3-5 years to get the pass rate on an upward trend due to the changes in the education system’.

Speaking further on this matter, in a Mail & Guardian article, it is reported that the 2015 matric results have dropped to 70.7%, in contrast to 75.8% circa 2014.

Highlights

The Minister also indicated, that 2015 had the highest number of students enrolled for the examinations, in contrast to past years. Also telling of the distinctions between private and non-private schools, was the pass rate achieved by IEB schools, a staggering 98.3% – which sparked debate about the quality of education rendered in non-IEB schools.

With the current focus now shifted on institutions of higher learning and the call for ‘free education’ #FeesMustFall; #NationalShutDown it is a most interesting yet volatile time for the country’s future leaders. Children are indeed the future, especially now that they’ve left school. Looking at the meaningful contribution they may bring through skills, vocational learning, contribute to workforce, launch start-ups etc.

Solutions

A call has been made to focus on the 3 lowest performing provinces: the Eastern Cape; Limpopo & Kwa-Zulu Natal, which also make up the bulk of students enrolled for matric 2015, more intensive learning or added support from stakeholders is needed.

Further reading

For the stats on the link between poverty and education, visit the StatsSA link: ‘Education: A roadmap out of poverty’

*Sources Mail & Guardian ‘Matric results 2015: Pass rate drops to 70.7%’
News24 ‘2015 matric results in numbers’

Matrics 2015

“Blind faith, good faith – when do we draw the line”?

February 8, 2016  |  by admin  |  in BlogNo Comments

South Africa recently got hit by a spate of sensational headlines highlighting the scourge of unscrupulous pastors and church leaders who’ve been abusing their discretion and subjecting congregants to appalling, in-humane abuses. Some of the incidents include the consumption of grass; snakes; rodents and petrol, as per an article in ‘Destiny Connect’. Yet what is the cause of these incidents, where congregants seek faith so desperately that they subject themselves to the consumption of snakes?

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL), is extending its reach to these churches that have come under the spotlight for their unorthodox practices by launching an investigation for the above mentioned incidents. Religious practices aren’t prohibited per se, it is how they are enacted and implemented which raises not only eyebrows, but also raises public concern. Enter the CRL, who intend on providing legal structure for religious institutions as per a report in ‘The Star’ publication.

blind faith

The Constitution in Section 31 makes provision for ‘Cultural, religious and linguistic communities’ – which in turn grants persons the right to enjoy their culture and practice their religion. However these rights are being abused, and mal-administrated by ‘bogus’ and dubious pastors and or church leaders who therefore are not acting in good faith. In another article by ‘News 24’ it is reported that the SA Council of Churches (SACC) in alleviating the scourge of these dubious practices, has called for basic certification of pastors. It is also interesting to note that the issue of questionable church practices isn’t unique to South Africa, these practices are also prevalent in other jurisdictions such as Nigeria, and the USA where they’ve been reports of notorious cult practices.

Churches and places of religious worship have traditionally been known as sanctuaries where the poor and those in need of spiritual awakening could worship in peace. Churches have also been said to provide support structures for the community, and speak out against injustices – for instance the role churches played in the apartheid era. It is therefore tragic to witness such unreasonable acts and practices under the umbrella of the church. With legal structures and councils overlooking and monitoring these practices, it is hoped that the church will once more be restored as a place of worship, and not one of fame; notoriety; glamour and abuse of congregants.

Family Church

*Sources Destiny Connect ‘Questionable churches to be investigated’
The Star
News24
The 1996 Constitution of the Republic of South Africa

Social Media and Workplace Relations

December 6, 2015  |  by admin  |  in BlogNo Comments

In little less than two decades ago the face of employment did not look like anything it does today, the world at large has shifted and developed. Some of these developments include the rise and rise of social media platforms for example, Facebook; Twitter; Instagram; Snapchat et al

These are platforms whereby people post what they’re doing, what location they’re at, whom they’re with and even how they are feeling – this could be consequentially adverse to the employer (through vicarious liability) or the employee who may be taken to task over potentially defamatory posts. Risks against employers, according to Rosalind Davey writing for ‘BIZ COMMUNITY’: “Legal consequences of social media“, are exacerbated by the fact there is no specific law in South Africa that governs the usage of social media. The good news about that however, is the room for development of the law through this gap.

The downside, due to no specific statute regulating social media platforms within the workplace context, one is actually unsure on what they may or may not post.

The Impact of Social Media in the Workplace

The advent of social media in the work and market place has proven to be fruitful with regard to e-commerce and brand exposure inter alia, not without its shortfalls however. We at the BLA-LEC also plunged into the realm of social media, with the establishment of our Twitter profile: @blalecafr to extend our reach to readers and other role-players in the legal profession. The risk in social media lies with the nature of information shared on these platforms, and since there is no specific statute to deal with this, it becomes a huge area of contention.

Possible Guidelines on How to Deal with Social Media

Some posts shared may prove to be delictual in their nature, and amount to defamation which may adversely affect someone else’s reputation and lead to patrimonial loss. The employer of such employee who shares such may be vicariously liable. However it is argued positively, that notwithstanding the lack of statute regulating social media within the workplace, the Constitution in the interim provides guidelines. Davey, in her article cited above, suggests the reliance on the constitutionally entrenched right to dignity to act as a shield.

Code of Ethics

Most employers have a code of ethics, or code of conduct which employees are expected to uphold and abide to, given the nature of social media posts, a code of conduct may be interpreted so as to make provision for incidents of offensive posts.

In conclusion, social media has permeated the workplace on a broad spectrum and affects various tiers and factors of law. Employment law, labour relations, private law and possible civil actions. Due to its nature, a statute regulating its usage is highly requisite. Perhaps the legislators will draft a bill and effective pass legislation until then. Everyone is urged to take extra care of what type of information they share. Always ensure that it is in keeping with your brand values.

*Legal consequences of social media, BIZCOMMUNITY, Rosalind Davey