Constitutional Hill

Updates

High Court judgment on DA sms about “Zuma stole your money”

Here is a link to the High Court judgment between the ANC and the DA about a tweet sent by the DA regarding the Nkandla Report. SMS judgment

CASAC statement on Public protector’s Nkandla Report

CASAC Statement: Public Protector’s Report on Nkandla 24 March 2014

The Public Protector is appointed under the Constitution to strengthen constitutional democracy by probing improper conduct and maladministration in state affairs. In her report on the upgrades at the President’s private residence at Nkandla she has found that the President has violated the Constitution.

The Council for the Advancement of the South African Constitution (CASAC) believes that under these circumstances, it is necessary to consider whether the violation is of such a serious nature to require invoking the provisions of section 89 (1) of the Constitution. In our opinion, the issue is whether it would be constitutionally intolerable for the President to remain in office.

The Public Protector has made a positive finding that the President acted in breach of section 96(1) and (2) of the Constitution (paragraphs 10.10.1.5 and 10.10.1.6 of the Public Protector’s report). These sections place two obligations on the President. First, he must comply with the code of ethics for members of the Executive. Second, he must not act in a manner inconsistent with his office or expose himself to a situation of a conflict of interest.

CASAC Executive Secretary, Lawson Naidoo says: “The Public Protector has found that the President violated both constitutional duties. First, by wearing “two hats” as guardian of the country’s resources and as a direct personal beneficiary of improper privileges, he violated the duty to avoid placing his personal interests in conflict with those of the state. Second, by failing to cause an investigation as soon as he became aware of the expenditure into his home, he acted in a manner inconsistent with the duty to protect public funds.”

Section 89(1) (a) provides that the President may be removed from office by a resolution supported by two thirds of the members of the National Assembly, for a “serious violation” of the Constitution or the law, or in terms of s. 89 (1)(b) for “serious misconduct”. Given the findings of the investigation as a whole, the quantum of the monies expended and the role of the President, it would be difficult to sustain any argument that the findings of the Public Protector do not amount to serious violations or misconduct.

CASAC therefore believes that it would be constitutionally intolerable for Parliament not to consider whether the constitutional violation or the misconduct identified by the Public Protector fall within the category of violations in section 89 (1).

We call upon the Speaker of the National Assembly to convene a sitting of that House to deliberate on this matter.

For further enquiries please contact Lawson Naidoo 073 158 5736 or 021 685 8809 Lawson@casac.org.za

PhD and LLM scholarships in law at UCT

Claude Leon Foundation Scholarships in Constitutional Governance

1 PhD Scholarship (R120 000 for 2015-2017)

 2 LLM scholarships (R80 000 each for 2015)

Prof Pierre de Vos, the Claude Leon Chair in Constitutional Governance at the University of Cape Town Law Faculty, invites suitably qualified applicants to submit applications for the above post-graduate scholarships. The successful applicants will be South African citizens who plan to embark on either a Master’s degree by dissertation or a Doctoral degree in 2015 in the fields of South African or comparative Human Rights Law, Constitutional Law or other legal and political questions relating to constitutional governance. The dissertations will be supervised by the Chair in Constitutional Governance.

  • The successful applicants will have an excellent academic record. In making the selection, the selection panel will strive to select a cohort of recipients broadly representative of South Africa’s racial and gender composition.
  • The Doctoral scholarship will be awarded for a period of three years and the Masters scholarship for a period of one year;
  • The selected scholars will be required to provide reasonable research assistance to the Chair in Constitutional Governance; and
  • The selected scholars will be expected to be in residence at the University of Cape Town.

For further information contact: pierre.devos@uct.ac.za or 021 6503079.

Applicants must send a covering letter indicating whether the application is for an LLM or PhD degree, accompanied by a full curriculum vitae with the names and contact details of three referees, all available undergraduate degree transcripts and a short (no more than one page) proposal indicating the possible topic of the post-graduate research to: pierre.devos@uct.ac.za by no later than 28 March 2014.

JSC Conduct Tribunal statement on Judge Motata

REPUBLIC OF SOUTH AFRICA
JUDICIAL CONDUCT TRIBUNAL

MEDIA RELEASE

21 February 2014

Judicial Conduct Tribunal to deal with preliminary issues raised by Judge Motata

On 06 January 2007, Judge Motata of the Gauteng Division of the High Court was involved in a motor vehicle accident on Gleneagles Road in Hurlingham, Johannesburg, in which he crashed into a wall belonging to Mr Baird. Arising from this incident, the JSC received two complaints lodged by AfriForum and Adv G C Pretorius SC. The essence of AfriForum‘s complaint is that Judge Motata, whilst at the scene of the said accident made some racist remarks against Mr Baird. Advocate Pretorius’ complaint relates to the manner in which the respondent pleaded to the charges he faced at his criminal trial in which he denied that he was driving a motor vehicle under the influence of alcohol and that he conducted his defence in a manner inconsistent with the ethics of judicial office.

On 22 February 2014, the Judicial Conduct Tribunal (Tribunal) mandated to investigate and report on the complaints lodged by AfriForum and Advocate G C Pretorious SC will sit to consider preliminary issues raised by Judge Motata.

One of the preliminary issues raised by Judge Motata is that the Tribunal should not proceed to hear the merits of the complaints while there is a constitutional challenge to section 24 of the Judicial Service Commission Act, 1994 which empowers the Tribunal President to appoint a member of the National Prosecuting Authority to collect evidence on behalf of the Tribunal, pending in the Gauteng Division of the High Court in the litigation initiated by Justices Nkabinde and Jafta.

The Tribunal proceedings will commence at 11h00 at the Southern Sun – OR Tambo International Airport located at the Airports Grounds, Jones Road.

Issued by the Judicial Conduct Tribunal
Contact: Mr Sello Chiloane, 079881 4455
Email: Chiloane@concourt.org.za

Human Rights Commission calls on government to break silence on homophobia

SA SHOULD BREAK SILENCE ON HOMOPHOBIC LAWS IN AFRICA

The South African Human Rights Commission is concerned at the alarming growth of state-sanctioned homophobia taking place across the globe and particularly on the African continent.

There are at least 38 African states that have criminalised homosexuality. Nigeria became the latest country to promulgate anti-gay legislation following President Goodluck Johnathan’s decision to authorize a law that prohibits gay, lesbian, bisexual, and transgender (LGBT) relationships, and bans public displays of affection between same-sex couples. Nigerians found to be practicing such face severe penalties including a 14 year jail term.

Since 18 January 2014, dozens of people have already been arrested in Nigeria in terms of the new law.

The SAHRC calls upon the South African government to join other progressive governments in urging the Nigerian government to review its homophobic legislation.

The SAHRC believes that the South African government must seek to exert influence over other African countries to follow good human rights practices in line with those countries’ commitments under international and regional laws and conventions including the African Charter on Human and People’s Rights which guarantees the right to freedom of expression (article 9), freedom of association (article 10), freedom of assembly (article 11), and the equality of all people (articles 2 and 3).

The leadership expected of South Africa on this issue has been heightened following South Africa’s recent ascension to the UN Human Rights Council.

The significance of South Africa’s appointment to serve on the Human Rights Council is that the country can exert influence to ensure international protection of fundamental rights, particularly within its African counterparts.

In fact, in 2011, it was South Africa that initiated a resolution at the UN Human Rights Council in support of gay rights

Given the broad protection of rights guaranteed by our progressive Constitution which includes freedom from discrimination on the basis of sexual orientation, South Africa has an obligation to ensure other Africa countries comply with international human rights obligations.

The SAHRC believes South Africa had missed an opportunity this past week to raise this issue at the 22nd African Union Summit in Addis Ababa, Ethiopia, where Presidents from most African countries gathered to present country reports on progress to the African Peer Review Mechanism Forum.

The Commission lends its support to government and civil society in efforts to address the challenges of violence against sexual minorities, and attempts to improve the responsiveness of our criminal justice system.

The SAHRC calls on the South African government to do more to engage diplomatically with African countries that seek to outlaw fundamental freedoms and human rights, including gay rights to desist from such intended practices. The South African Constitution is one of the most revered in the world and many nations could emulate some of the rights it guarantees, including the right to equality inclusive of Lesbian, Gay, Bi-sexual, Transgender and Intersex rights.

Statement issued by Isaac Mangena, SAHRC Spokesperson, February 5 2014

BLA expresses grave concern about use of live ammunition by police

Black Lawyers Association notes with grave concern the ongoing use of live ammunition by members of the South African Police Services (SAPS) on service delivery protesters. This indiscriminate use of live ammunition has in reported cases resulted in fatalities and injuries visited on protesting civilians.

The pattern of police brutality we have seen in Mutlutlong, Roodepoort, Tzaneen and other places, took place against the backdrop of the Marikana massacre which happened just over a year ago. The disproportionate use of force by the police in dealing with crowd control negates the requirements, of a police action in a modern and democratic state like ours. The Marikana massacre was a defining moment in the history of our young democracy. It is regrettable that the leadership in the police services do not seem to have learned the lessons from the Marikana massacre. The worldwide outrage and condemnation of police actions that followed after that massacre should have been enough to make the leadership of the police to realise that more needs to be done to train police in new methods of crowd control. We say this mindful of the fact that there is a Commission of Inquiry which is underway.

We believe that the indifference of the leadership of the police to the calls for maximum restraint when dealing with protests ought to have consequences. It is lamentable that the leadership in the police has done very little to stop the culture of impunity, which has taken root in the police service. To the contrary, they seem to continuously justify the conduct of the police on an ongoing basis.

The pattern of flagrant disregard to the right to life and rights of citizens to protests as we have seen in recent past, serves to undermine the gains we have made as country in the new dispensation. There is unanimity that it is unacceptable for the civilians to be maimed and killed callously in the hands of those who are meant to protect them. In the same vein, protesting citizens should equally in the course of exercising their rights do so in a guarded manner which will assist in preventing the callous killings being perpetrated against them.

We call on the Independent Police Investigation Directorate (IPID) to expedite their investigations in all these cases and to press appropriate charges on those responsible. We believe that it could assist if the IPID were to have a constant comprehensive monitoring of police conduct henceforth. We further make a call that the IPID be given the space and resources to conduct its work independently and without fear or favour.

In the midst of all these, it would immensely assist if the political leadership were to beyond condemnation act decisively in ensuring that the aspired culture of rights enshrined under our Constitution are protected and not trampled upon by the police as we have seen in recent times.

If the police conduct goes unabated, the simmering culture of impunity has the potential of graduating into a norm.

Issued by P.B. Mabunda

Civil Society groups reject draft law on women

CIVIL SOCIETY ORGANISATIONS REJECT GOVERNMENT’S DRAFT LAW ON WOMEN

Press Release 28 January 2014 – for immediate release

 

Released by the following organisations:

1.       Community Law Centre, University of the Western Cape

2.       New World Foundation

3.       Sex Worker’s Education and Advocacy Taskforce (SWEAT)

4.       Sonke Gender Justice Network

5.       Triangle Project

6.       Tshwaranang Legal Advocacy Centre (TLAC)

7.       Western Cape Network on Violence Against Women (WCNVAW)

Tomorrow, 29 January 2014, the Parliamentary Portfolio Committee on Women, Children and People with Disabilities will commence with public hearings on the Women’s Empowerment and Gender Equality bill.

Civil society organisations including large national NGOs and locally based CBOs working on gender issues and women’s rights around the country strongly support developments for women’s empowerment and gender equality, but have come out strongly to reject the bill in its current form.  At civil society workshops held in November last year, there was agreement that women in South Africa don’t need another piece of legislation that won’t be implemented, government’s priority should be enforcing existing laws.

In this form, it’s not going to bring substantive change in the lives of women, that’s the bottom line.” Stated Shireen Motara, director of the Tshwaranang Legal Advocacy Centre.  Sisonke Msimang, the Senior Programme Specialist at the Sonke Gender Justice Network adds that “throwing new laws at problems, rather than addressing them through stronger service delivery and better community engagement has been a constant shortcoming of government’s response to the situation of women in South Africa.

Reporting on the civil society meetings held last year, Samantha Waterhouse, Parliamentary Programme Coordinator at the Community Law Centre, UWC, indicated that: “Delegates expressed strong frustration and anger, that after 20 years of law and policy reform on issues affecting women’s lives there’s been little change. In some instances things are worse. Women are subjected to pervasive violence coupled with weak – and at times non-existent –  access to justice. Health, land tenure, access to housing, discrimination in the workplace, education and childcare remain high on the list of issues that undermine social justice for most women.”

Nosipho Vidima, National Lobbyist with Sex Workers Education and Advocacy Taskforce and Sisonke stressed that certain women are more likely than other’s to face barriers: “Black women, rural women, women with disabilities, sex workers, women exposed to gang violence, and gender non-conforming people continue to experience far greater barriers than white, urban and middleclass counterparts. Growing economic inequality is entrenching these discriminations and there’s no light at the end of the tunnel at this point.”

Vivienne Mentor-Lalu Coordinator of the Shukumisa Campaign notes that the underlying issues that prevent transformation are not being addressed: “We have many laws, but they are not having the impact they should. Patriarchal values, where women are valued less than men, remain unchallenged and are often promoted by political leaders. There’s no strong political will, budgets and spending on these areas is poor, and most importantly, there’s an almost complete lack of accountability from the state on these issues.”

The main problems with this bill include:

·   Although claiming to make substantial changes  to the situation of women, and covering a number of important areas for reform, the bill’s provisions on these fail. They are vague and unfocussed and would require greater detail and substance to have impact.

·  This bill, and government policy generally, fails to engage with the underlying and pervasive patriarchal systems that undermine transformation for women’s equality.

·  The bill uses a narrow definition of gender, excluding lesbian, bisexual, gay, transgender and intersex (LGBTI) and other gender non-conforming people also impacted on by patriarchal systems.

·  The bill’s most substantial clauses relate to 50% representation of women in leadership and management positions across sectors. But, the enforcement clauses in this bill are weak and how accountability would be ensured is unclear. Importantly, these repeat much of what’s in existing law.

·  These clauses for representation at senior level, will have little impact on the majority of women in this country, particularly working class and unemployed women.

·  The provision for gender mainstreaming in government may have potential, but it has previously been tried and failed. The bill gives little hope to suggest that it can work better this time around. On its own, its potential to create the essential shifts in women’s lives is weak.

Some ideas for alternatives:

·  Consultation, in partnership with civil society, with women across the country to hear directly from women to understand their lived realities and to identify the critical areas for reform and programming.

·  Dedicated and realistic ‘women’s budgets’ in all departments across government that are reported on annually.

·  A review of the barriers to implementation of the current legal and policy framework relating to women’s lives. This must result in a resourced plan to promote implementation. This plan must extend beyond education on content to challenge the budget allocations to these, and to strengthen the systems for monitoring implementation.  Most importantly, the mechanisms and systems to ensure the accountability of government officials at every level must be prioritised. These include implementation of laws on sexual and domestic violence, promotion of equality and maintenance amongst many others.

·  Critical pieces of proposed law have languished, in some cases for longer than ten years, yet we are now faced with a new law that doesn’t address these key issues. The processing and finalisation of laws relating to Muslim marriages, sex work, hate crimes and rural women’s security of land tenure are but some examples.

·  Embedded patriarchy must be challenged, this will not be a short term or easy project, government leadership and commitment to a national programme relating to this is essential.

For information or comment please contact:

Nosipho Vidima, SWEAT, 076 782 0812

Sam Waterhouse, Community Law Centre, UWC, 084 522 9646

Shireen Motara, TLAC, 071 272 8245

Lungiswa Memela, WCNVAW, 082 323 0001

Ingrid Lynch, Triangle Project, 071 492 9800

CASAC media statement on killing of Mothutlung protestors

CASAC MEDIA STATEMENT ON THE KILLING OF THE MOTHUTLUNG PROTESTORS

14 January 2014

CASAC is outraged at the killing of two people at the hands of the police during a protest against a lack of water services in Mothutlung in the North West province yesterday.

Citizens would have every right to expect that lessons would have been learned and remedial measures implemented in the aftermath of the killing of Andries Tatane in April 2011, the Marikana massacre in August 2012 and the killing of Mido Macio in Daveyton in February 2013. So far no one has been held to account for the killings of Tatane, Macio and the dead of Marikana. The failure to act against the perpetrators of these killings will only serve to undermine respect for the rule of law.

So despite the protestations of the Minister of Police that a culture of impunity does not permeate the South African Police Service (SAPS) we have seen no evidence of a change in the manner of public order policing.

CASAC Chairman Sipho Pityana says:

“Indeed it appears that a policy of maximum force is prevalent within the SAPS, a view that CASAC outlined in its written submission to the Farlam Commission of Inquiry. The obfuscation of SAPS officials testifying before the Farlam Commission strengthens the perception that the police are not prepared to accept responsibility for their actions and to be formally held accountable.”

We are concerned that over a year after the Human Rights Commission published its report on the killing of Andries Tatane, its recommendations appear to have been ignored by the SAPS – these recommendations included the following:

  •  that SAPS improves the ‘training of police officers in managing and regulating gatherings to ensure that future police interventions in public protests result in a more peaceful and non-violent outcome’;
  • that SAPS together with the HRC develop a training manual for the SAPS Public Riot Unit;
  • SAPS to actively engage with communities where there are popular protests;
  • That the Minister of Police and Minister of Cooperative Governance & Traditional Affairs (COGTA) report twice a year on measures put in place to address the phenomenon of increasingly violent community protests. COGTA is also required to report on measures to ameliorate systemic failures in local government and interventions to avoid service delivery protests.

The Minister of Police must urgently clarify the position of the SAPS with regard to the circumstances when live ammunition may be used, and what measures have been put in place to ensure that the constitutional rights of the public are respected by the SAPS.

Enquiries:

Lawson Naidoo

073 158 5736

UCT post: Lecturer/Senior Lecturer in Commercial Law

We invite applications for positions as Senior Lecturer / lecturer in the Department of Commercial Law within the Faculty of Law for appointment from 1 July 2014.

We wish to appoint applicants, particularly Black South Africans, with the potential to be academic leaders and seek those who wish to be part of a Faculty in which a critical and comparative approach to the study of the law is valued.

Requirements:

·         For Lecturer:

o    a LLM degree and a strong academic record;

o    teaching experience at tertiary level will be an advantage;

o    previous publications will be an advantage. 

·         For Senior Lecturer:

o    a LLM degree and a strong academic record;

o    teaching experience at tertiary level;

o    a consistent record of publications.

Legal practice experience will be advantageous.

Responsibilities:  

  •          Teaching courses offered by the Department of Commercial Law as required by the Department, including courses offered to non-law students, which include Company Law, Business Law, and Labour Law;
  •          Research and publication;
  •          Departmental and faculty administration.

The annual remuneration packages, including benefits for 2014 at the respective levels are as follows:

  •          Lecturer                 :           R484 656
  •          Senior Lecturer      :           R655 493

To apply, please e-mail: 

•      The completed UCT Application form (HR201) and all other relevant documentation, including a full CV as indicated on the form.  The application form can be downloaded at http://web.uct.ac.za/depts/sapweb/forms/hr201.doc

•      Certified transcripts of your academic results.

Please indicate “Senior Lecturer/Lecturer: Commercial Law” followed by the reference number in the subject line when submitting your application to Mrs Celeste Booysen at recruitment05@uct.ac.za

An application which does not comply with the above requirements will be regarded as incomplete.

 

Address: Staff Recruitment and Selection, University of Cape Town, Rondebosch, 7700, South Africa. 

Telephone: +27 21 650 2220

Faculty website: www.law.uct.ac.za

Reference number: SR604/13

Closing date: 1 February 2014

UCT is committed to the pursuit of excellence, diversity and redress. Our Employment Equity Policy is available at http://www.uct.ac.za/downloads/uct.ac.za/about/policies/eepolicy.pdf. For this post we seek particularly to attract Black South Africans.

 

UCT reserves the right not to appoint.

CASAC Media Statement on the death of Nelson Mandela

CASAC Media Statement on the death of Nelson Mandela

06 December 2013

Nelson Mandela was one of South Africa’s foremost constitutionalists, a noble democrat, a great leader and a hero to millions across the globe. He epitomised the fortitude of the human spirit and the dominance of good over evil.

Everywhere, the name Nelson Mandela is synonymous with the idea of freedom, with the advancement of human rights, and with the loftiest human virtues of courage, self-sacrifice and dignity.

The death of Nelson Mandela provides us all with an opportunity to reflect on the values to which we aspire as a democratic society and the standards of probity we have a right to expect of our leaders.

In his opposition to apartheid Mandela was a symbol of principled resistance. Imprisoned for his defiance, he united people across the globe. Despite his 27 year incarceration he was the symbol of the resistance to the brutal apartheid state, honoured and decorated in all corners of the world.

As the first democratic president of the Republic of South Africa, Mandela’s magnanimity in victory, and his pursuit of national reconciliation, set the tone for the kind of nation and society that we aspire to. President Mandela set extraordinary standards and thereby helped encourage the prospect of a new era of democratic politics in Africa.

His commitment to justice, to the rule of law and to judicial independence never wavered – even when his Presidential decisions were subjected to review by the courts and, on occasion, over-turned. He demonstrated the utmost respect for the democratic institutions of governance that he fought so hard to establish. He deferred to the courts when many felt it was unnecessary to do so and bestowed upon Parliament the courtesy that it deserves from the executive branch of government.

He respected the notion of the separation of powers, and ensured that he and his Ministers were accountable to Parliament.

Thus, his legacy will never diminish, but will remain a beacon of hope and inspiration to democrats and constitutionalists everywhere. He will inspire generations to come, not just here, but across the globe.

Let us celebrate his life by re-committing ourselves to the principles that he fought for and was prepared to die for – equality, justice and human dignity.

We join millions of people throughout the world in expressing our sorrow at his departure and in offering our condolences to his family and his many dearly-loved friends.