1 Editors From the Editors John-Carlos Atouguia Contents Luke Choate JC Atouguia & Luke Choate From the Editors 3 The editors wish to thank by John-Carlos Atouguia and Luke Choate all of the contributors and sponsors. President’s Report 4 by Amanda Mapanda Thank you also to Saronda and Patience for their outstanding efforts in the Faculty Report 2009 6 creation of this year’s by Professor Jonathan Campbell magazine. The highs and lows of a Law student 11 Contributors by Kate Selwood Christopher McConnachie Roxanne Francis-Pope ‘Paedophillia’: 12 Claire Marais What does it basically mean? Rowan Stafford by Claire Marais Kate Selwood Kate Scott-Shaw A landmark decision in 16 Amanda Mapanda Dario Milo South African trust law? Professor Jonathan by Rowan Stafford Campbell Professor Graham Glover ‘A rose by any other name?’ – 18 Professor Richman Mqeke The Supreme Court of the Professor Nazeem Goolam United Kingdom by Professor Graham Glover Photographer (including the front and From human wrongs to human rights 20 back cover) by Roxanne Francis-Pope any people believe that the best way to contribution and we thank them for their work. Advocate Les Roberts teach someone to swim is to throw them Funding is another obstacle faced, and we would like to right into the deep-end. They’ll either thank our various sponsors for their contributions and Law Photos 2009 22 learn very fast or, if they are lucky, will advertisements. Without their funding, this publication would Designer have someone save them. Rhodes Law not be possible. Lauren Macnab Human dignity is an oxymoron 26 prepares us for the head-first dive into the real world. As by Chris McConnachie Mstudents, we are at first intimidated by each test or assignment, After five years of law in Grahamstown, one comes to view Disclaimer but with each difficult obstacle we overcome, we successfully the particular stretch of road that gets you from the door of come out swimming. your unkempt, shoddy accommodation to the daunting doors The views expressed in Victory in the Hlophe Saga 29 by Dario Milo of the Law faculty with a mixture of fear, familiarity and a bit this publication are not Putting together this publication felt like being plunged more than a dash of respect! Never quite knowing what to necessarily those of the into a pool. Having almost mastered legal jargon in our final expect, the gruelling triathlon that is the LLB is almost done. In Camera board, the The meaning of ‘spouse’ in South African 32 year of law, we were thrown into the arenas of journalism Rhodes Law Society, the law : the dire need for and publication. We had to make sense of words such as For us final years, the nervous, shifty-eyed first years that Rhodes University Law uniformity and clarity. advertisement specifications, trims, bleeds, photographic stumble across our paths remind us just how quickly it has all Faculty or the Rhodes by Professor Nazeem Goolam angles and so much more. But in the end, after a few hundred gone by. From the GLT to Eden Blue to our own back-yard, it’s Administration. emails and phone calls, we were successful in producing the been a trip, thanks for the memories. Purpusive Interpretation in labour 35 2009 edition of In Camera. All articles in this publication To the first-years and everyone in-between, it goes by quicker are the sole copyright of tenancy disputes – too little, too late The success of this publication would not be so without the than you think. Exams will come and go, tests will go wrong, the owners. No person may by Professor RB Mqeke contribution by students and staff in the faculty. Each article essays will keep you up all night, lecturers will refer to you as reproduce them. is in itself an accomplishment – delving into a new legal pillars of salt (whilst comparing you to their new batch of first Class Photos 2009 38 topic, deciphering the law, or just commenting on a current years who, apparently, know more than you do) and the sun situation. The publication would not be what it is without each will rise, these are the best times of your life. Enjoy the ride.

2 3 his year, the Honourable Justice Lex efficiency. Without Christopher McConnachie won the award for Best Oralist. Mpati, President of the Supreme “...as Rhodes their involvement Congratulations to Roxanne and Christopher for doing us Court of Appeal, officially opened in the planning and proud! the Rhodes Law Faculty with his students we preparation the event’s address to students and staff. His success would not have Another great accolade to the Rhodes Law department speech proved to be an appropriate way to mark are privileged been possible. Last but this year was the appointment of two our own colleagues, theT beginning of the year for all, be it wide-eyed not least, a big thank Chris McConnachie and John Shija, as clerks in the first years, anxious-to-finish final years, and all to receive such you to Lindsay, the Constitutional Court in Johannesburg. McConnachie has in-between. His message was an important one, Public Relations Officer. been appointed to the office of Chief Justice Pius Langa reminding us all that social responsibility is part and a high calibre Career’s Day was her and Shija to Justice Yvonne Mokgoro. We wish them all the parcel of our legal training. He emphasised that as education and “baby” from the start. best in this exciting venture. Rhodes students we are privileged to receive such a Well done to her for a high calibre education and that we should therefore that we should fantastic job. My report would not be complete if I did not take the use this opportunity to help others. This year the Law opportunity to thank my Committee for all their hard work therefore use Society had the usual and to congratulate them on such a successful year for One of the major events on the Law Society calendar task of organising social the Law Society. To Lumka Dlukulu (Secretary), Jessica is the Law Careers’ Day. This year a relatively large this opportunity functions to provide a Staples (Treasurer), Lindsay Luppnow (Public relations), number and wide range of institutions took part in platform for interaction Nikita Young (Legal Aid Liaison), JC Atouguia and Luke this event. We had law firms, national institutions and to help others. ” amongst the different Choate ( InCamera Editor). Thank you all for being some NGOs. Among these were the Competition years of the LLB degree amazing individuals and an incredible team to work with. I Commission, the National Prosecuting Authority as well as other students have enjoyed working with you and getting to know you all. and the Legal Aid Board. This gave the students of the University. Our first event was “A night in Paris”, a a wide spectrum of options in deciding what smart occasion which was held at Kiara’s restaurant. The To the final years class of 2009, I know we are all glad that route to take with their LLB. Some of the firms evening proved to be an absolute success with people it is over, but do take time to reflect and soak in all the took the opportunity to conduct interviews with partying until the early hours of the morning. Special memories. Times flies and before you know it, you will potential article clerks for 2010. The end of the thanks must go to Mr. Gordon Barker for going where be missing the ‘coffee mug scramble’, the sun-bathing on day was marked with a cocktail evening giving no staff member has gone before and joining us in our the lawns, and the student life we have loved and loathed students a chance to network and socialise with festivities. these past few years. I wish you all the best in every future the representatives of the firms and institutions in Our social event for the second semester was a much endeavour. Let this not be good-bye... After all, there’s attendance. more relaxed affair that took place at the ‘student hot- Facebook! spot’, Pirates Pizza. Despite the gloomy weather that This occasion was the successful product of a evening, students came in their numbers to make merry partnership between the Law Society, The Law with blue punch and great pizza. To make the event more Faculty and the Rhodes Career’s Centre. In meaningful, we took the opportunity to collect tins of food previous years the Career’s Centre had not been donated by members that we then handed over to one of involved in our Career’s Day but the new addition the local soup kitchens. was invaluable. In the week leading up to Career’s Day, the head of the Career’s Centre, Mr Jurgens The biggest event on our social calendar was the annual Kietzmann held talks law ball. This year the committee decided on an exotic and workshops on CV theme- ‘An Arabian Night’. The decor was beautifully done, writing techniques “I wish the food was superb and the entertainment kept us all and interview skills. you all dancing until our feet ached. To this top off, the evening The He also called for was graced by the presence of the Honourable Mr Justice students to submit the best in Johann Kriegler. Having such a topical legal figure share the their CVs to him so he evening with us was a great way to end off the year. could assist them with every future President’s the drafting. Being in an educational environment it is important to endeavour.” acknowledge the successes of our peers. This benefits Although the whole us all because it raises the national and international Committee made a contribution to this event it is profile of the Law Faculty and the University as a whole. Report important to individually thank certain pivotal role Every year the Rhodes Law Faculty participates in the players. Thank you to Mrs. Helen Kruuse for her prestigious All Africa Moot Competition. This year guidance, energy and leadership in pulling this whole Rhodes was represented by the winners of the Internal By Amanda Mapanda thing together. Thank you to Mr Jurgens Kietzmann Final Year Moot, Christopher McConnachie and Roxanne for his enthusiasm and willingness to work with us Francis-Pope. After receiving generous sponsorship from President of the Law Society to make this event a success. The administrative Schindlers Attorneys, our team was able to fly to Lagos, staff, Saronda of the Law Faculty and Phumla from Nigeria where the competition was held this year. Rhodes the Career’s Centre, must also be thanked for their performed excellently and were placed 5th overall and Amanda Mapanda, the President of the Law Societry for 2009.

4 5 in camera Introduction and will meet at least once Holland achieved the rare feat of having an article accepted for 2009 has been a year of transition and consolidation. The “Our students per semester during swot publication in an accredited journal while still an LLB student: three day Law Faculty staff imbizo in January provided the are central to week (June and November). “How to fix a life: lessons onubuntu and restorative justice perfect opportunity for me to speedily settle into my new role from Alexander McCall Smith’s The No. 1 ladies’ detective as Dean, and for the staff together to plan the year ahead. It our purpose, The law library has had agency” (in Speculum Juris). is important for any manager to be decisive and to lead from an excellent year, and the front; but it is equally important for decisions as far as and we re- received unprecedented Papers presented at conferences possible to be taken in consultation with staff, in a transparent positive feedback in student Papers were presented by Faculty staff at various conferences manner. Our students are central to our purpose, and we re- affirmed our evaluations. The University in South Africa and abroad: Prof Glover “The law of affirmed our commitment “to produce high-quality graduates”, has been reviewing its library unintended consequences? The Consumer Protection Act of enabling them “to become responsible, productive and ethical commitment services in anticipation 2008” (Private Law and Social Justice Conference, NMMU, members of society”, and to be a destination of first choice for ‘to produce of the opening of the new Port Elizabeth, August 2009); Prof Juma “Returnees and law students. Besides these grand aspirations, we came away university library next year, post-conflict reconstruction in Africa: the challenges of from the imbizo with an 80 point action plan which set the high-quality and most branch libraries inclusivity in divided societies” (the International Association tone for the hard work ahead! in other departments will for the Study of Forced Migration Conference, Cyprus, June/ graduates’”... be closed and centralised in July 2009), and “In reality who am I? In search of African The academic year got off to an excellent start in February the new library. Despite this jurisprudence” (the Law Curriculum in South African with the Faculty Opening, at which we were greatly honoured trend, the law library will be Schools: Taking Africanness Seriously Conference Unisa, to have the Honourable Justice Lex Mpati, President of the retained in the Faculty, which is excellent news for students Pretoria, September 2009); Dr Kruger “The South African Supreme Court of Appeal and Law Faculty alumnus, as guest and staff, and testimony to its vital importance and centrality Constitutional Court and the rule of law: the Masethla speaker. This event presented a wonderful opportunity to in the law academic project. judgement, a cause for concern?” (Conference of the African recognise our high achievers from the previous years with a network of constitutional lawyers, UCT, August 2009); number of awards and prizes. Two of our eminent Visiting Professors were with us in the Ms Sarah Driver “The legal regulation of genetic resources second semester. Adv Wim Trengrove SC presented six and traditional knowledge in South African: intended and Academic matters lectures during his visit in August, and Judge Clive Plasket unintended consequences” (WIPO/WTO Colloquium for The Faculty places a high premium on quality teaching delivered several lectures between August and October. Dr Teachers of Intellectual Property, Geneva, Switzerland, June/ and learning, with undergraduate teaching being our most Tim Burrell was unfortunately not able to make his annual July 2009). important core business, and greatest strength. Our lecturers visit this year due to his wife’s illness. demonstrate exceptional commitment to their work, and In addition, several papers were presented at the South African our good teaching was borne out by extremely positive first Research publications Law Teachers Conference (Pietermaritzburg, July 2009): Prof semester evaluations by the final year and penultimate year Professor Glover updated the chapter on “Divorce” in the Mqeke “Proprietary consequences of a customary marriage classes. Further, we have a sound clinical legal education LexisNexis Family Law Service, and he and Professor Alastair since the Constitutional Court judgement in Gumede v programme that complements traditional academic teaching. Kerr updated the chapter on “Sale” in LAWSA. Dr Rosaan President of the Republic of South Africa and others 2009 (3) Kruger updated the chapter on “Family Law Procedures” in SA 152 (CC)”; Prof Juma “Assessing the viability of a human A new elective course was introduced by Prof Glover, the Law the Family Law Service. Ms Liezel Niesing contributed two rights approach to conflict prevention in Africa”; Ms Sharlene of Unjustified Enrichment, which has been a success. Capita chapters to The Law of Delict in South Africa. Ms Helen Kruuse Ramlall “Improved lives, improved profits: reconciling the Selecta Corporate Law, an elective not offered for some years, has had a chapter on “A South African Response to Ethics in difference”; Prof Campbell “The induplum rule: relief for was taught by Adv Renaud and proved to be very popular. Legal Education” accepted for publication in The Ethics Project consumers of excessively-priced small credit legitimised by the With the many changes in company law, corporate law in Legal Education. National Credit Act”. subjects will look somewhat different in the LLB curriculum from next year. The names as well as the content of most of A number of staff have had articles published or accepted Other research activities these courses will change. Finally, given the increasing rigour for publication in accredited peer review journals: Prof The year started with the wonderful news of Prof Glover’s Faculty of Administrative Law, from next year Admin Law A and B Kerr “The Nature and Future of Customary Law” (in the appointment as a co-editor of the prestigious South African will be offered in final year, a direct swop with Delict A and South African Law Journal); Prof Glover “Reflections Law Journal, which is a great achievement for Prof Glover and B, which will be offered in penultimate year. This means that on the Sine Cause Requirement and the Condictiones in the Law Faculty. He thus resigned his position as the technical both classes will do Delict together in a bigger venue next year. South African Law” (in the South African Law Journal); editor of Speculum Juris (a joint publication of University of Report Prof Laurence Juma “Peacekeeping in Africa: Problems and Fort Hare and Rhodes University), and Ms Helen Kruuse Flowing in part from first semester evaluations, the Legal Prospects” (in University of Botswana Law Journal); Dr was appointed the new technical editor. During her tenure Skills course has been re-visited. From next year the course Rosaan Kruger “Of Fences and Peace Between Neighbours” and due largely to her hard work, the 2008(2) edition of the will be taken over both semesters, with moots in the 3rd term, (in Obiter); Ms Helen Kruuse “Fetal ‘Rights’? The need journal was published earlier this year. 2009 which will serve to distribute the workload of penultimate for a Unified Approach to the Fetus in the Context of students more evenly over the year. Further, numeracy will Feticide” (in THRHR), and “Here’s to You Mrs Robinson: Prof Nazeem Goolam made a presentation as an expert no longer be a separate requirement for the award of the LLB Peculiarities and Paragraph 29 Determining the Treatment panellist at a group meeting on “Human Rights and Islam: By Professor Jonathan Campbell degree, but will still form part of the Legal Skills course. of Domestic Partnerships” (in the South African Journal Economic, Social and Cultural Rights” (Beirut, Lebanon, Separate teaching groups were established for the first time of Human Rights); and Prof Jonathan Campbell “The In August 2009); Ms Helena van Coller attended the Centenary Dean of Law this year for (i) Legal Theory, (ii) public law, (iii) private law, Duplum Rule: Relief for Consumers of Excessively-priced Symposium of “Die Suid-Afrikaanse Adademie vir Wetenskap (iv) commercial law and (v) practice, procedure and skills Small Credit Legitimised by the National Credit Act” (in the and Kuns” (Bloemfontein, June 2009); Adv Roberts attended courses. These groups comprise all lecturers in these areas, South African Mercantile Law Journal). Further, Ms Emma the Law Teachers Conference (Pietermaritzburg, July 2009);

6 7 in camera in camera who has since beenwho appointed to theConstitutional Court. point being the keynote address by Judge Johan Froneman, debate,with thehigh several screening, and a film workshops Clinic)Aid and theSRC. There a schools was apublicforum, (including and theLegal Society thestudent Legal Activism co-hosted by the Dean ofStudents Office, the Law Faculty The University Constitution Week took place in September, organisations.community PAJA and PAIA inGrahamstown and Queenstown, aimed at Constitutional Development training Act, ontheEquality In October hosted theclinic theDepartment of Justice and leaders, and theDepartment theSAPS ofSocial Development. by 54members organisations, ofcommunity traditional area, by attended force brides taking ofchild intheLusikisiki offices. there Flowing from this, was issue ona focus the of the providing training ontheChildren’s Actto paralegal advice In July staff clinic undertook a in various centres,“roadshow” fora. invarious workshops were trained asstreet present law facilitators, and theywill introduction ofastreet law initiative. Several staff members office and advice work), provision a new focuswasthe service (clinical oftheclinic core activities legal education, legal fresh perspective into theLegal Clinic. Aid Besides theregular Prof Bodenstein, thenew Director, has brought new ideas and Community engagement accompanied by Prof Juma and Ms Ramlall. staff attended asimilar colloquium at Fort Hare in August, in September, and some ofourpost-graduate students and students from NMMU, Fort Hare Universities and Rhodes planned; we hosted aresearch forpost-graduate colloquium seminarstime inthefirst semester, and more ofthese are Mqeke presented and AdvRoberts theirresearch lunch during planned is forswot weekworkshop inNovember); Prof current research to each other and obtain feedback (a similar week inJune, staffto present when had theopportunity their was held swot during workshop and awriting DrKruger: the guidance ofourresearch holders, Prof portfolio Mqeke theyearduring to promote research under and output, activity LawThe undertook a numberFaculty of research initiatives participating working invarious groups and projects. and conferences, presenting lectures and seminars and her PhD research proposal, attending legal various seminars 2009),where shespent invaluableto April drafting time Research, Utrecht University, The Netherlands (February researchermonths asavisiting at theSchool ofHuman Rights spent three 2009).Ms Ramlall Budapest, Hungary (July by thePublic Interest Litigation Institute ofNew York in course on“Teaching Law, Human and Rights Ethics” run 2009),and was aparticipant ina Wales, Australia (January Pro Bono Centre and School ofLaw, University ofNew South conductedAct. Ms Kruuse aresearch to theNational visit endeavour to get ontop oftheimminent new Companies (Unisa, JulyLaw and Law” ofhis Securities 2009)aspart and AdvRenaud attended a seminar on “Advanced Corporate 8 and gender discrimination Union absurdityCivil Act, section 13ofthe context: may berequired by the such changes as “With an essay– with entitled: outstanding achievement –another truly Reform Competition onLaw Mohamed National Essay oftheIsmail joint winner McConnachieChris was a The resultwriting. was unknown time of at the Bloemfontein. place intheHigh and Court theSupreme ofAppeal Court State Faculty ofLaw First Year Moot took Competition which Kruuse) represented at Rhodes theUniversity oftheFree Four first year students (accompanied by Ms Davies and Ms semi-finals ofthe competition. number rounds and ofpoints inthepreliminary making the University ofPretoria. gainingwell, thehighestdid They very Mock Intervarsity Nexis Trialthe Lexis Competition at the (again accompanied by Ms Mangezi) represented in Rhodes In September Abrahams and George /October Kahn Kathryn achievement indeed. was oralist named for2009– an exceptional best individual 70 teams McConnachie countries, and Chris from 26African team being extremely did well, placed 5thoverall against some Nigeria, accompanied by Ms Mutsa Mangezi.Rhodes The HumanAfrica Moot Rights Competition Court inLagos, final thetwo August year finalists represented Rhodes atthe McConnachie (and up runner Judge Erasmus presiding). In final year final was wonRoxanne by Francis-Pope, with Chris Abrahams up. runner by Ingrid Cloete,The Kathryn with yearwhich mootfinal, in Judge Dambuza presided, was won The Moot finals The took penultimateplace inApril. early arranged around theday. party. acocktail studentsduring certain were with Interviews lawns, and students were able to engage them informally with agencies provided information through onSt Peters theirstalls 11 private law firms, community organisations and state law At thelawCVs market skills. day inMay, and interviewing Kietzmann, theHead oftheCareers Centre, ondrafting of Students’ Society. Two were workshops given by Mr Jurgen student careers, spearheaded and by theLaw Ms Kruuse A high point ofthefirst semester was theinitiative around being focus aprofessional qualification.primary achievement considering we are Faculty asmall our with PhDs (includingwith DrRosaan Kruger) ourown –agreat we had fourstudents graduating degrees, LLM and with two representingdistinction, over 10%oftheclass). In addition 56students graduatedIn April LLB(six ofthese with with Student news Faculty year this be the result of “ a tremendous team effort...” has proved to The excellent work of the studies thefirst during semester. Leicester) came to Law the Rhodes Faculty his to further Management Honours programme; and James Moss (from Leicester onexchange inorder to complete acombined Law/ University Mhlanga in2009,Ruth (from Rhodes) went to ofourstudent part exchangeAs programme Leicester with retired Judge Johan speaker. Krieglerasguest promisesLaw to which Ball, bean entertaining occasion, with Mapanda and her Law Students committee Society forthe preparations ofwriting At thetime are under way by Amanda Cameron Stewart. George (Vice Kahn Presidents), Mr Egmont Bouwer and Mr KwekuEric (President), Ofei Mr Elzerman Garth and Mr Representative Council for2009/2010,including Mr Many law students were elected to theStudents Awards. the Year” categoryCommunity oftheRhodes Engagement year,work this and was named asafinalistinthe of “Society The continued Society their NtuthukoLegalgood Activism Development forconsideration. oftheDepartment ofJusticeadvisers and Constitutional to was forwarded thelegal Iam advised proposals, which Commission to puttogether document onhis asummary essay that hewas asked Law by Reform theSouth African in thelegal consequences ofmarriage.” So good was the year: Ms Debbie Ainslie, asProjects Manager (to replace Various new staff were appointed Legal at the Aid this Clinic assistant, and has settled inextremely well. In May 2009Ms Yvette was appointed Williams library as course (Saronda); first aid and MS word courses (Patience). health and course safety (Andrea); including: supervisors’ staff development useful provide which opportunities, ouradmin staffAll have attended Rhodes courses various Ms Niesing onupdating and maintaining theFaculty website. amongst has other doneexcellent responsibilities, work with manager, an extremely running tight and ship. is Saronda, Andrea an exceptional is administrator and an astute financial and havedone excellent work, really gelled together asateam. usforaoneyearwas with internship last year). They have Comley, Ms Saronda and Ms Fillis Patience Ngele (Patience admin staff withthe appointmentcomplement of Andrea Ms Furthermore, theyear acomplete started with overhaul ofthe of transition. leave year this helped to which theFaculty stabilise inatime academic on sabbatical staffwith no-one full complement, Legal Clinic onmy Aid departure. We are now back to our July. Prof Bodenstein commenced work asDirector ofthe appoint Professors Juma and started Goolam, work who in and deVos last year, and so we were delighted to beable to with thedepartureA big gap of was left Professors Midgley Staff news even better year in2010! We are therefore placed well to beable to to an look forward invaluableme with guidance inregard issues. to policy Committee, in particular, has worked efficiently and provided leadership. theyprovide in which The Executive Faculty member assuming administrative certain responsibilities, be theresult staff ofatremendouswith every team effort, The excellent work ofthe this yearFaculty has proved to Eastern Cape Office Advice committee. Forum Committee.Aulai Executive Ainslie was Ms elected to the Institutions (Aulai), and Ms Mangezi was appointed to the President ofthenational ofUniversity Association Legal Aid be admitted soon. Prof Bodenstein was appointed as Vice in March, expected and that itis Mr Nkosinathi will Faxi Malaysia). Mr Johnnie Jacobs was admitted as an attorney Goolam (International Islamic University, Kuala Lumpur, degrees to DrRosaan Kruger (Rhodes) and Prof Nazeem Notable staff achievements include:the award ofdoctoral forpart-timelecturers. guide doubles asauseful which was draftedwith orientation ofnew to assistacademic staff, and Ms Pam Maseko (isiXhosaforlaw). A“New staffguide” BrownBruce (Numeracy), Mr Gys Niesing (Civil Procedure) Wagenaar (Legal Accounting), Mr Richard Poole (Tax), Mr was needed: Mrs Anita mainly whereexpertise specialist Various part-timestaff were employed to teach this year, Saglamand Loris (interns). Mpofu (projects assistant); Sesha Moodley, Simon Barker Tshiki Diyelela and Zingisa (Queenstown office); Nonzame (Grahamstown office) and Khayalethu Siyasanga Radasi, Ms Candice Egan); new candidate attorneys Johan Botha Professor Jonathan Campbell 9 in camera 10 us through theday intheend. pleasure derived constant from this complaining what gets is timetable endlesslygoes –thelist on. Perhaps theslight we are expected to learn foratest, thetest date, theexam assignments due, theword count ofan essay, theamount to read foran essay, case, thelengthofaparticular the thelecturer,volume ofwork, theamount we are expected ofthe lawlife is the This student: we complain about the of complaining. nothing else, ourlaw degree teaches onething –theart usall T The highsandlowsofa frustrated and all other synonyms ofthese.frustrated other synonyms and If all students are sleep usually deprived,annoyed, students. more If closely, onelooks the with happy orexcited notfilled usually is he hustle ofpeople inthelaw department Law student By KateSelwood which we will, whether we like it or not, be a part offorever beapart itornot, we like whether we will, which gives usinsight into aworld that many cannot understand and job market. Perhaps most importantly, something itis which that we are something makes studying which us valuable in the instead ofcomplaining we about shouldembrace it, thefact mother seventeen and his his lives with still cats, who old guy convinced that the reasonable man a actually balding is 40 year over theworld. So, after a semesterwe while may be ofdelict, butpeople all South African lives ofnotonlyevery the daily that what weand relevant areimportant is studying and affects themoaning all Amidst and complaining there asatisfaction is rather aword and subject onitsown.” all oftonessmug) that, “delict notabbreviated actually is but stand for?”we can say inthemost patient (and potentially procedure, and forcriminal civil are butwhat does delict short person says, this when “Ican understand that ‘crim’ and ‘civ’ “crim proc”, “civ proc” and “delict”; and after some thought someone we than consider ourselves much wiser that we study going when gratificationexplaining on.this to is found Again, and pretend that we understand, we doknow actually what’s mentioned and,instead inthenews ofhaving to vaguely nod Further pleasure some legal foundwhen is concept is mind thetriad offactors established inw”. astheeffectwell that the sentencelikely is to have, keeping in of boththeaggrieved must and beconsidered theculprit as based onthe ratio per inMakwanyane Chaskalson , therights (andwith understand) actually an answer such as,“Well, onthedeath your is view penalty?”,as, “What we can respond We secretively enjoy thefact that asked when aquestion such that being alaw student can bring. student’s life, we persevere and donotforget thesatisfaction these things are undoubtedly thelows ofthelawWhilst Kate SelwoodKate 11 in camera eventually acquitted counts. onall were deniedallegations activity and Jackson ofsexual was and theinfamous (alcoholic) ‘Jesus juice’ them. All with andincluded touching befriending children, sharing beds children and evenconduct abuse. with sexual Such conduct 5 4 3 2 1 Statistical Manual ofMental Disorders (DSM-IV-TR) Most psychiatrists and use psychologists theDiagnostic and involving interest thesexual ofaprepubescent child. other words, thediagnosed has a‘fetish’ party orobsession of themental disorder ofhaving paedophilic tendencies. In Rather, related itis to themedical and psychological diagnosis a bad joke, itinterms noris ofthecolloquial‘child molesting’. be classified asa paedophile. linked isnot classification This to After psychological evaluation, it was foundthat Ehrlich could T in 2004. (2003) Acta Criminologica 19at 20. trating thepresentation and value ofthepre-sentence evaluation report” Van der Hoven and MOvens “A forensic case study ofapaedophile illus ‘infantophilia’ interest thesexual is inchildren younger than 5years A old; (E). Cal.App.4th 1009. the Eastern Cape. manipulated those travelling hemet by chance while around ofboys thatthe trust attended class, his and charmed and was akarate instructor that to used position his gain and abuse case even presented itself intheEastern Cape. Ehrlich Bruce and unusual, buthave One occurred actually inSouth Africa. whisperings surroundingThese mightJackson seembizarre recurrent, intense arousing sexually fantasies, urges, sexual or criteria: asa‘paedophile’,sets outthat to classify these onemust fulfil and obsession. diagnose sexual this The DSM-IV-TRclassify 14 counts ofindecent assault ofthese boys. 12 The revised fourth edition is the latest edition The fourth revised edition (DSM-IV-TR), published 13years usually is or younger; thechild where ontheother Where hand, Ehrlich par 1. Ehrlich vS(unreported) case no. &R341/04delivered CA 4September 2008 The People of the State of California v Michael Joseph Jackson (2005)128 A.Experiencing, over ofat aperiod least 6 months, A.Experiencing, by rumours and allegationsby ofinappropriate rumours However, musical talent his was dampened entertainment world forover three decades. Jackson –the‘King ofPop’ that the ruled yearhis was marred by thedeath ofMichael 2 Ehrlich was Ehrlich charged and convicted with of ‘Paedophilia’: Whatdoesitbasicallymean? 1

3 5 4 By ClaireMarais to - 7 6 intent” mala fide and indicating clear stage-managed, calculated and of children is “sexual abuse older orchildren than inCriteria the child A. and difficulty; urges orfantasies cause marked distress orinterpersonal or children (generally age 13years oryounger); and aprepubescent with child behaviours involving activity sexual THRHR 416at 421. (2005) THRHR Mental Disorders 4ed (2000)571and 572. with a child. achild. with a paedophile’s potential intention ofeventual conduct sexual cognisance ofthese ‘sexual urges orfantasies’ astheycan show notable haveit is that courts South started African to take ofphysical actsin theform orconduct. However, unlawful can onlybeconvicted offence ofasexual towards achild any physical action. Nonetheless, trite that itis aperson ‘sexual urges orfantasies’ embraces which thoughts without Interestingly enough, theabove diagnosis criteriaincludes AVan onthesentencing evidence ofpaedophiles” der “Expert Merwe Psychiatric American Diagnostic Association and Statistical manual of C.is Theperson at least age 16 years and at least 5 years B. Either have acted urges, onthese sexual orthesexual v. to non- forinitial allow ofthechild, Earning thetrust thechild; lengthy spent time with order to receive approval ofthe‘special’ relationship and iv. Gaining ofthechild’s thetrust parents and guardians, in become a‘significant’ person inthechild’slife; of‘love’ and friendship,enablesthe guise which them to Creatingiii. a‘special’ under relationship thechild, with hold of adults; child’s and they andthenaive playfulness, trust curiosity child’s need and want forlove and affection, including the victims. and draw intheirchild processthis to choose most paedophiles use Research has that shown as‘grooming’.known throughshown aprocess These intentions are ii. Manipulatingii. the influence; and thus easier to vulnerable emotionally is Choosing thati. achild involves: 7 6 Grooming

sexual abuse of his child victims. abuse child sexual ofhis used setEhrlich ofbehaviours this inthemanipulation and mitigating factor sentencing. when Subsequently, insuch cases, notalways alack is ofviolence a led thatviolence theoffender orathreat used violence. of This offenceThis includes: encouraging a athird-party to perform (Sexual OffencesRelated and Matters) Amendment Act. under theoffence grooming of sexual Law inthe Criminal and hasthis grouped aspects certain ofgrooming behaviours would eventuallychild occur. The legislature has considered process, itcould bearguedwith the that offence asexual not yet acted ‘sexual onhis urges’ buthas began thegrooming effect. can beledIf thatevidence aclassified paedophile has intent true ofthis could evidence This have an interesting child. thevictim with end activity goal sexual usually is 13 12 11 10 9 8 managed, indicating clear mala fide and intent”, that the“sexual abuse calculated ofchildren is and stage- paedophile’s intention. true In other words, to itbrings light hand, and moreover, ofgrooming theevidence can show a crime. inthecommissionOnother ofthesexual violence ofgrooming aneedThus,evidence this for distinguishes In thecase ofSvM offence(s) ofsexual in thetrial against achild. process this cases it, like ofgrooming now is used asevidence 56 –66. (2008/2009) Sexual Offences andAffairs Community Bulletin(NPA) 54at paedophiles’” (2006)The Social WorkPractitioner-Researcher 174cited in 14 Act32of2007. sentencing factor when a mitigating not always violence is “ Ehrlich par 125. HConradie “Entrapped about by grooming: themodus operandi of Conradie (2008/9)Sexual Offences Bulletin (NPA) 56. 2007(2)SACR para 60(W) 85. 2007 (2)SACR para 60(W) 37D. 2007(2)SACR 60(W). a lack of with disbelief. with metof theinappropriate is by thechild activities sexual Creatingviii. an image of themselves so that any disclosure and maintain ofthechild; thesilence inorder Isolating, shaming thechild, to and bribing vii. arewhich notwrong; are Convincing that ‘games’ activities thechild sexual vi. resisting; nature thechild without would then increase which touching, sexual initssexual 8

10 , a case of sexual abuse, acase ofsexual ofthe accused’s ” evidence does notneedevidence to be of grooming further shown, is process. In other words, theuse if information onthegrooming to became privy courts African offender has changed since South that thesentencing ofan highlightedfurther The judge child acceptingchild activities.” sexual ongoing process aimed at the but [can be] asan explained “grooming difficult todefine, is step-daughters, noted, thecourt 9 As seen and inEhrlich, many As 12 13 where the 14

11

South African legalSouth African sphere. project on the general stance ofPaedophilia inthe Marais astudent is currently completing her LLBresearch 15 S18. operandi investigated is and brought to thecourt’s attention. thatimportant convicting apaedophile, when orher modus his and/or influencesgrooming, sentencing. Therefore, is it grooming behaviours that either proves an offence of sexual when leadingvital of evidence This is role particularly mental play disorder can still arole ofapaedophile. inthetrial an offender offences of sexual against children. However, this noinfluence onthe diagnosis,actual legal with of conviction In conclusion, ‘paedophilia’ onlyamedical orpsychological is their body. another person,act self-masturbation, of parts with orexpose conduct that encourages orforces toasexual achild perform orencourageto explain and act; toasexual thechild perform orpornography afilm achild showing achild; actsexual with THRHR 416. (2005)THRHR philes” 4. AVan onthesentencing evidence ofpaedo “Expert der Merwe evaluation (2003)Acta Criminologica report” 19. illustrating thepresentationdophile and value ofthepre-sentence 3. AVan der Hoven and MOvens “A forensic case study ofapae- (NPA) cited in(2008/2009)Sexual Offences andAffairs Community Bulletin of paedophiles’” (2006)The Social WorkPractitioner-Researcher 174 2. HConradie “Entrapped about by themodusoperandi grooming: Washington DC. of Mental Disorders Psychiatric 4ed (2000) American Association: Psychiatric1. American Diagnostic Association and Statistical manual References 54. 15 - 13 in camera Trust PropertyControl Act 6 5 3 2 1 T A year later, inthematter ofBadenhorst vBadenhorst susceptible to theclaims creditors. ofthird-party was once protected which property becomes by thetrust, Under belifted, and thetrust such circumstances, will theveil ER. 4 Based developed ontherule inRoyal British Bank vTurquand 1856119 often fortheprotection exploited itoffers. inthemanagement instrument although auseful ofassets, is aunanimous judgment, noted writing thateron thetrust, JA, Rule extending ofalso theTurquand possibility asthefuture as well sitated ofthe‘doctrine theimportation ofthecorporate veil’ of company law into law. trust In particular, neces thecourt it wastoform, necessary extend the well-established principles reasoned that inlight ofthewidespread abuse ofthetrust this case sued his wife in the court aquo foradecree inthecourt ofdivorce case sued wife this his of theParker judgment became apparent. The respondent in once again waved itswand over law trust and theripple-effect Agricultural Bank ofSouth v Africa Parker and Others. preme handed ofAppeal Court judgment down inLand and occurred since thepromulgation theSu oftheActwhen - In 2005,oneofthemost significant developments law intrust and amountain oflegal disparities. seemingrights, mismatch trustee obligations ofbeneficiary and notthelaw ofequity. The consequence ofthe aboveis a law trust based is Southtions, African onthelaw ofcontract, trustees. However, most other unlike common law jurisdic vivos and indoing so, trust keep awatchful eye onmiscreant protectionto thefullest give to thebeneficiariesof an inter edly vestingedly intrustees infact belong to oneormore trustees. for theconduct ofabusiness ‘as before’, and that assets alleg ees invite theinference was that amere form thetrust façade ‘pierce shouldtheconduct ofthetrust ofatrust, theveneer’ The outcome ofParker that are is thecourts now able to 16 Para 23–24. 2005(2)SA77(SCA). Act57of1988.Hereafter referred to as ‘the Act’. 2006 (2)SA255 (SCA). Para 37.3. 4 inthesame manner. South AfricanTrustLaw? 1996, together with the functioning ofthe 1996, together the functioning with Constitution ofSouth Africa, oftheRepublic previously. With theimplementation ofthe traditional common law that principles existed oday’s law nolonger is oftrusts confined to the A landmarkdecisionin 1 , South African courts are courts obliged, South African 3 Thelearned judge By RowanStafford 6 2 theSCA Cam- - - - - 5

10 9 8 7 Act, sought order aredistribution interms ofs7(3)theDivorce relief.wife counter-claimed The appellant and ancillary and deceive third into parties genuine, thebelief that is thetrust amongsttion the settlor and at least onetrustee to mislead or abroad and insummary, requires there to beacommon inten- adopted and readily cases applied ofsham inthemajority trust out theshamming status ofany transaction. This test has been (2) QB786. Canada and the United Kingdom the Snookis test, English law. Accepted unanimously inAustralia, New Zealand, To ofthe‘sham’ thedoctrine with, begin in has itsorigins unjustified decisions. has led inturn to wholly two edge ofthe ‘sham’ ofthedoctrines and the‘alter-ego’, which correct view. respectively Bothdecisions reflectlittle knowl In my neither opinion, oftheabove judgments expressed the fact findthetrust tobeasham. accepted academic that opinion inBadenhorst in did thecourt with regardwith toproperty. thetrust tothe trust bea‘sham’, order noredistribution can bemade accepted court’s thetrial conclusion that finds unless thecourt the ‘alter-ego’ ofthesettlor. AJA Furthermore, Combrinck ing to findthetrust tobe pierce shouldthecourt thetrust from Badenhorst evident is that are is thecourts What will order.in theredistribution peal succeeded was taken property into and thetrust account in effect the respondent’s alter-ego and onthat ground, the ap activities. and merelyof thetrust, using itasavehicle business forhis control having oftheassets full oftheoneparty sic example held that thepresent Combrinck AJA trust, case was aclas being dissatisfied by the respondent’s apparent misuse ofthe for thedifference assetsas as well between trust andhis own, to therespondent, thefact that therespondent had noregard reference power to theunscrupulous granted deed by thetrust ingly, development theresult inthelaw. was afurther With considereddoctrine, thecourt theapplication and unsurpris assets intherespondent’s estate. piercing theveil with Armed beregardeda claimtrust that thefamily theassets within as estate beawarded to her. Included in theappellant’s prayer was Para 7 Para 10. Act70of1979. Based onthecase of Snook vLondon &West Riding Investments Ltd 1967 7 whereby fifty-percent ofthe valueofthe respondent’s 8 In its closing, the Court accepted theCourt In itsclosing, that was thetrust 9 This supports the widely the supports This

10 which sets which - - - - - v Wilson &Others in Bankruptcy Martin in Reynolds ofGary Assignee the Property The abovewas confirmed inthecase ofOfficialdistinction of belonging to thetrust. treated is property trust itwere asif instead owned, personally whatever theyare instructed to do.where The secondis the act butthetrustees asmere ofthetrust trust, puppets,doing where situations.distinct is Thefirst assets are settled ona ontheother hand moretrust is limited, and itrepresents two write thetraditionalwrite understanding ofasham. and thattrust such adevelopment would beeffectively to re- house between aconventionalhalfway and sham avalid trust judge pointed outthat theresult would bethecreation ofa requirement held inSnook would be negated. Thelearned be automatically recognised asshams, thecommon intention particular, Jreasoned Robertson that alter-ego if were trusts to cautioned against theamalgamation In doctrines. ofthetwo card theseparate corporate ofacompany personality orclose say, the‘piercing ofthecorporate acts to veil’ doctrine dis thecore and is ofthecorporateliability veneer. Needless to of companies established thewell protection against personal 14 13 12 11 Salomon &CoLtd astoas well sue and besued. This, according to Salomon v acompanyallows acts name, initsown tojuristic perform A company regard inthis from itsmembers. distinct This is piercing oftheveil –separatetion doctrine legal personality. misses thekey ingredienttrust motivates which theapplica imported corporate law. trust law with doctrine In essence, a Secondly, to theSCA failed realiseofthe theincompatibility the law inorder oftrusts to achieve thedesired result. outcome to ofthecase prior itshearing and simply re-drafted earlier. Suddenly, itseems theSCA had asif itsmindset onthe tation ofthe‘piercing ofthecorporate discussed veil’ doctrine under oneofthose categories. falls the trust Hence theimpor settled practice cannot thatlifted be ofatrust unless the veil judgments facts. similar dealing However, with overseas, itis wasposes correct this according to themultitudeofforeign declared thealter-ego ofthesettlor. intentsFor all and pur indispute was neither heldtrust to beasham, norwas it judgment that are questionable, to say theleast. Firstly, the toReturning Parker, there are aspects ofCameron two JA’s infact is afaçade. ofthetrust orthewhole part concept ofsham requires there to beafinding at law that a ently inplace are itrelates notreal. As the to trust, afamily foundthat itis of sham when thearrangements arises appar notan argumentis ofsham. For sake ofclarity, theargument thealter-egoUnbeknown argument trust to Combrinck AJA, was the‘alter-ego’trust ofMr. Badenhorst. tothe trust beasham based onthecourt’s conclusion that the to take cognisance test. ofthis Instead held Combrinck AJA infact not.Worryingly, itis when inBadenhorst theSCA failed 1897AC 22 (HL). Para 58. 2008NZCA 122. Faucilles 90ATC 4003. 12 14 where theNew Zealand Supreme Court is what affordsis themembers directorsand 13 11 An alter-ego An - - - - - the Turquand has nolegalwhich personality, company law such as doctrines incorrect because sought to thecourt impose onthetrust, the law toduecaution and consideration’, another without translocatingof imprudently legal from onearea doctrines of Ironically, inHonoré, consideration by Cameron JAinParker. to entity. thetrust Catastrophically, was nottaken this into thatthus follows onatechnical unsuited is front,thedoctrine legal personality, nordoes ithave persona standi in iudicio. It ontheother handcorporation. Atrust does nothave separate 18 17 16 15 considering thecasting asideofatrust’s veneer. thestrictestplains why foreign approach observe courts when potentially damaging to those parties.The above reasoning ex theeffect thereof the veil, lift is substantialthe courts is and that theyarranged which upon theiraffairs. Accordingly,when and obligations different arefrom which very ontheparties and piercing theveneer imposes a scheme ofatrust ofrights substance shouldnotbecast asideforapparent convenience may which beshiftedity to other areas ofthe law. Moreover, a company amatter is of substance and notmerely a technical law, Thelegal origins. of personality itsvery harmonious with der to restore certainty, and amore predictability sound trust ted that should change approach the courts theexisting inor cording to thelaw and notcompany oftrusts law? It submit is Furthermore, surely amismanaged better is with ac trust dealt to courts uphold those rights. ofSouth African and theduty essence entity of beneficiaries,butalso ofthetrust to the very relevant law notonlyoffensive trust is doctrines rights to the past five years. appreciate fully Thefailure to distinguish and the subject ofmany unwarranted developments over the lawIn trust conclusion, has South undoubtedly African been 16 Cameron etal Honoré’s South Law African of 95. Trusts Honores Cameron pg 34. ECameron etal Honoré’s South Law African of 5edTrusts (2002). noting that the in decision 2001 (2)SA562(NC). Rule. 18 15 Cameron himself ‘the discusses danger Man Truck & v BusVictor SA Rowen Stattford 17 was - 17 - - - - wo-thusand-and-nine has been a significant independence. tion. The second important change is that appointments will year for the judicial system in the United “while some What made the system even no longer be made by the Sovereign upon nomination by the Kingdom. Following an extensive and traditionalists more contentious was that Prime Minister. Instead, a special selection committee (head- contentious phase of constitutional reforms, the Lord Chancellor (one ed by the President of the Court) will make these recommen- the judicial functions of the House of Lords might have of the great officers of State dations in future. While the current members will retain their have come to an end, and the United Kingdom now has a cried “O in the British constitutional peerages and their places in the House, it is likely that future newT Supreme Court. Since decisions of the House of Lords system) effectively held appointees will not be entitled to such privileges, so as to are a feature of law students’ reading lists across the South tempora, O positions in all three forms of preserve and entrench the separation of powers. Furthermore, African curriculum, and decisions of the courts in the United government: legislatively, as recommendations for all judicial appointments below the level Kingdom continue to be cited by South African courts, a mores”, to all a peer in the House of Lords; of the Supreme Court will henceforth be the responsibility of review of what has happened to the United Kingdom’s judicial intents and judicially, as a Law Lord; and a newly-created Judicial Appointments Commission, which system should be of some interest. executively, as what would will serve a similar function to the South African Judicial purposes the probably be described as Services Commission. Background the Minister of Justice in Traditionally, the House of Lords, in addition to being the judicial process Cabinet. (For a discussion, Conclusion second (higher) chamber of the legislature, also had a judicial will continue see Fiona Cowney and According to the provisions of the Constitutional Reform Act, function as the court of appeal of last resort. Although Anthony Bradney The English the judicial functions of the House of Lords came to an end originally the entire House could hear and vote on appeals, in much the Legal System 2 ed (2000) on 31 July 2009. In fact, the House of Lords Judicial Com- this practice soon died out because of the load it placed on 44−47). mittee handed down its final six decisions on the afternoon the full House and its legislative duties, and because most same manner as before – Thursday the 30th of July – in accordance with the peers had no legal training. Hence, by convention, it became before” Reforms custom that all judicial business of the House was attended to the practice that only those members of the House who were One of the most contro- on Thursday afternoons. And thus, the function of one of the legally qualified (Lords of Appeal in Ordinary, colloquially versial episodes of Tony most significant courts in the world came to an end. But the known as “Law Lords”) were entitled to hear appeals. By Blair’s government was the passage through Parliament of the moment was not accompanied by great nostalgia or fanfare, the 1990s there were twelve Law Lords, appointed by the Constitutional Reform Act, 2005. Although this Act changed doom or gloom. For, while some traditionalists might have Sovereign on the recommendation of the Prime Minister, and a number of things about the British constitutional system, for cried “O tempora, O mores”, to all intents and purposes the who became life members of the House of Lords – although our purposes, its primary effect was the abolition of the judi- judicial process will continue in much the same manner as they had statutory limitations on their role as members of the cial appellate function of the House of Lords, and the creation before; just in a new home down the road. It was on the 1st of judicial appellate committee itself. Normally, an appeal would of a “Supreme Court of the United Kingdom”. The structural October that the new Supreme Court began its work. We can be heard by five of the Law Lords. approach adopted in doing so was quite different to that no doubt expect the same traditions of judicial excellence that adopted in South Africa in the 1990s, when the Constitutional epitomised the work of the House of Lords Judicial Commit- Since the Parliament of the United Kingdom is known for its Court was created. We chose to create a brand-new Consti- tee to characterise the work of the new Supreme Court, and pomp and pageantry, one might be forgiven for thinking that tutional Court that was additional to, and separate from, the South African courts will surely continue to look to the deci- an appearance before the House of Lords Judicial Committee original highest court (the Appellate Division), and which sions of this Court for guidance where appropriate. would have been marked by high formality. Interestingly saw justices appointed across a broad range of candidates, enough, this was not really the case. During World War including from the ranks of those who had not held judicial One last footnote: for the sake of completeness, the Constitu- Two, it became the convention to hold judicial sessions in a office before. In the United Kingdom, on the other hand, the tional Reform Act does not affect that other judicial appellate Committee Room, and this continued to be the case until this least dislocating approach was adopted. The same twelve Law committee – the Judicial Committee of the Privy Council – “A Rose by year. The room was neither large, nor daunting, nor ornate. No Lords who held office as members of the House of Lords Ju- which will continue to exist and to operate as the final court robes or wigs were worn by the Law Lords. The atmosphere dicial Committee were by statute appointed as the first twelve of appeal for those nations and states of the British Common- has been described as “relatively informal”. The more formal justices of the Supreme Court. The Senior Law Lord (Lord wealth that still utilise its services. However, that Committee any other side of matters came at the time of judgment, which was given Phillips of Worth Matravers) has become the first President of will now be housed in, and will decide appeals in, the new in the full chamber of the House of Lords. Only the Law the Supreme Court, and the former Second Senior Law Lord Supreme Court building, rather than in the old Houses of Lords spoke, delivering their respective opinions, which were (Lord Hope of Craighead) is the Deputy President. The Court Parliament. This will draw a clear and final distinction between properly called speeches. By convention, the House would will continue to sit and hear appeals in benches of five mem- the legislative and judicial arms of the British State and the name” ? vote to follow the majority opinion of the Law Lords who bers, and will thus not sit as one, or én banc, as most Supreme Commonwealth. adjudicated the matter. All members of the House of Lords Courts (including South Africa’s Constitutional Court) do. The Supreme were free to attend and to vote in such sessions, although not (The wisdom of this has been questioned by some: see, for very many would do so. example, the comment by the Rt Hon Sir Richard Buxton Court of the “Sitting en banc in the new Supreme Court” (2009) 125 LQR Concerns 288.) United Kingdom During the latter part of the twentieth century, concerns began to be raised about this structure, and whether it The one significant change is that the court will no longer violated the principles of good democratic governance and simply be a committee housed in the Houses of Parliament, By Professor Graham Glover the European Convention on Human Rights. In particular, the but will have a separate physical existence to enhance the im- Associate Professor of Law fact that a person could hold legislative and judicial powers at pression of judicial independence. The Court will be housed at the same time was self-evidently contrary to the doctrine of the Middlesex Guildhall in Parliament Square, which has been separation of powers and the fundamental principle of judicial renovated to meet the needs of the Court and its administra- Graham Glover

18 19 in camera fter months of demanding research and Chris McConnachie winning best oralist. We are incredibly diligent preparation, we finally found grateful to Schindlers Attorneys for their fiercely loyal and ourselves stepping out into the suffocating much appreciated sponsorship of our moot team. Your About the Competiton and buzzing air of Lagos, Nigeria, to contribution made our attendance at the event a possibility. The African Human Rights Moot Court Competition represent Rhodes University in what is now It is now with a new appreciation of human rights in Africa has become the largest annual gathering on the recognised as the largest academic human rights gathering and the importance of the African Charter that we view the continent of students and lecturers of law. Established Ain Africa: the All Africa Moot. It was with some anticipation legal system, and hope that we have, in at least a small way, in 1992, 845 teams from 125 universities, representing that we arrived in the city: we knew that security would contributed to the recognition and development of human 45 African countries, have over the last 17 years always be a legitimate concern and that four gruelling moots rights on our continent. participated in this premier event on the university and human rights calendar of the continent. lay ahead of us. The Competition aims to prepare a new generation The hypothetical case to be argued canvassed a variety of lawyers to argue cases of alleged human rights of current issues in Africa’s human rights jurisprudence violations before the newly established African Court on Human and Peoples’ Rights, which is likely which require development, including whether the African to become operational in 2008. The programme is Court has the authority to depart from a decision of the organised each year by the Centre for Human Rights, International Court of Justice; whether a person who is in collaboration with a faculty of law in a host country considered a threat to national security may be detained on the continent. without trial; whether a group advocating the rights of In 2009, the Moot Court Competition was hosted at sexual minorities has the right to be registered in a country the University of Lagos in Nigeria. Some 80 African outlawing sodomy; as well as issues pertaining to, among universities were expected to send teams to participate. others, genocide. We had to argue for both the applicant Prominent African and international jurists served as and the respondent, and put forward arguments as to judges in the final round. Students and lecturers also attended a one-day training workshop on human rights admissibility and the merits on each topic. in Africa.

The more we learned about our host country during our The African Human Rights Moot Court Competition stay, the more we realised that these issues found specific is unique in giving the youngest and the brightest reference to its current legal situation, especially regarding future African lawyers the opportunity to critically examine the human rights situation on the continent, events occurring in the Niger Delta. Roxannne Francis-Pope and Chris McConnachie, winners of with a view to improving it through the use of the the final year Rhodes Moot Competition, represented Rhodes persuasive tactics of logical legal argument based on University in the 18th All African Human rights Moot Court the African Charter on Human and Peoples’ Rights. Competition 2009 in Lagos, Nigeria.

From Human Wrongs The moots, which took place on the University of Lagos Campus, required us to show our knowledge of international law sources, an articulate analysis of the issues to Human and an ability to respond to questions from the (sometimes surprisingly hostile) judges. The experience was both exhausting and exhilarating. The opportunity to mix with Rights some 160 law students from a variety of different legal traditions to discuss these topical issues was invaluable. By Roxanne Francis-Pope We returned home proudly South African and equally- proud Rhodes students, being placed 5th overall with

20 21 in camera Law photos 2009

22 23 in camera in camera 24 Law photos2009 25 As a starting point, we need to gain a clearer sense of what justify a principle as enlightened as human dignity. human dignity means. In its ordinary usage, the word ‘dignity’ To present any real justification for the moral significance can be thought of as a synonym for moral value, worth or of our species, we would have to point to some quality that esteem. The concept of ‘human dignity’ goes a step further by is uniquely human. The most obvious quality is that of our Human Dignity is an making a radical claim: that all human beings possess equal intellectual abilities. Our intellects are indeed impressive. and inherent dignity and are entitled to have this dignity We have developed calculus and quantum mechanics, built respected. It is a radical idea as it entails all human beings technological marvels and have put man-made objects on have equal value that is independent of their talents, abilities, other planets. Surely this gives us an entitlement to exclusive intelligence, race, class, sex, religion etc. The starving refugee moral worth? The problem is that this is not a quality found in Oxymoron and the successful business mogul are of equal value and all human beings. Young children, the elderly, those suffering significance and ought to be treated with respect consistent from brain damage or other comparably serious mental By Chris McConnachie with this status. The only thing that matters to their moral defects all lack the type of mental capacities that we think are value is their shared humanity. uniquely human. While children may develop these capacities A brief synopsis of a more complete argument in time, a significant portion of human beings will never gain developed in his final year research paper. This takes us some way to understanding the content of these abilities, let alone the ability to care for themselves. If we human dignity, but what does it mean to recognise others as were to assign moral value on the basis of intellectual abilities being of equal value with an equal entitlement to respect? we would have to exclude the weakest and most vulnerable I suggest that two ethical values form the basic core of in our society. This is a monstrous conclusion, one which is here is no doubt that human dignity is the these obligations. The first is the principle of equal moral antithetical to the very notion of human dignity. Therefore, ethical foundation of our Constitution. It is significance. This requires that everyone’s interests must this cannot be the source of our equal and inherent human described as the ‘touchstone’ of our society, be taken into account and cannot be ignored. The second value. the source of all other personal rights in principle is the principle of equal consideration. This requires the Constitution and the guiding principle that we must afford equal weight to the similar interests of We may cast out for any number of additional qualities that for all law.1 Despite this high praise, it is a concept that others. Their interests are just as important as the similar we believe to be intrinsically human, from forming religious Tremains frustratingly indeterminate. I contend that if we interests of others and ought to be weighed on the same beliefs to having intimate relationships. I would argue with subject it to closer scrutiny we will find that it is internally moral scale. Slavery violated the first principle as it regarded a fair degree of confidence that the same two problems will contradictory: an oxymoron. The ethical obligations the interests of slaves as being of no significance whatsoever. always arise: either the quality is not found in all human required by a commitment to dignity are simply too far- Apartheid violated both principles by treating the interests beings (many human beings, myself included, cannot muster reaching to be confined to human beings alone. of black South Africans as being, at best, less worthy of much religious conviction) or it is not exclusively human consideration than the similar interests of whites and, at worst, (the capacity for relationships is certainly shared by all social 1 S v Makwanyane 1995 (3) SA 391 (CC) paras 144 and 329. as being entirely irrelevant. species). Ultimately there is simply no answer to Regan’s challenge. This account of the ethical obligations of human dignity is somehow deeply satisfying. However, there is a niggling worry The result is that we should not abandon human dignity and lurking at the edges of this concept. If we are to say that all the important ethical obligations that it requires. Instead, human beings possess equal and inherent dignity, then where the philosophical dead-end that we have reached calls for a does this entitlement come from? Given that we have rejected reassessment of the content of this value. The reason for our talent, intelligence, success or any other factual quality of difficulties in locating the source of human dignity is simply human beings as being irrelevant to their moral worth, where that it does not rely on a factual source. The idea encapsulated are we to find the source of our equal and inherent value? in human dignity - that all human beings possess equal and The challenge of finding this source is neatly articulated by inherent moral value - is not a description of the factual the philosopher Tom Regan: it must be shown that there is equality of humans but is instead an ethical principle: that we ‘something invariant and equal in all human beings and only in ought to treat others as being bearers of equal worth. As are their case’.1 result, human dignity as an ethical principle does not require humans to be factually equal in any sense. The natural response to this challenge is simply to assert that the thing that is equal and exclusive to all of us is the brute What human dignity does require is that we must treat the fact that we are members of the human species. That seems interests of others as being morally significant and deserving plausible at first glance. However, on closer inspection there of equal consideration. The only thing that matters to this is a clear flaw in this assertion. It responds to the question, entitlement is the fact that they possess interests. Any factual ‘why are human beings inherently valuable?’, with the simple feature of their identity that has no bearing on whether they response, ‘because we are human beings’. This is not a possess interests cannot be an appropriate dividing line for justification but rather a mere tautology. It is much the same their value. For someone to possess interests they must, at claim that the bigot would make in justifying his preference minimum, be sentient. This is the capacity to experience for his own race, class, sex or soccer team. This sort of logic is pain and pleasure; the essential requirement for anything the foundation of any form of prejudice and cannot be used to to be said to have ‘a welfare’ with an interest in promoting this welfare. Without doubt all mammals and the majority 1 T Regan ‘Animals Have a Right to Life’ in T Regan and P Singer (eds) of other non-human animals possess sentience and do feel Animal Rights and Human Obligations (1976) 197 at 198. 26 27 in camera in camera Chris McConnachieChris 5 4 3 2 laws, foundinweakis anti-cruelty of objects onlyprotection mere ofrights, whose property legal status. It would require theirelevation from thestatus human animals would entail adramatic change intheir the Constitution then to to dignity includenon- expand thesourcehuman is personal dignity under rights of all of non-human animals. If we take asourpremise that conclusion This has radical implications forourtreatment human. dignity, onethat applies to animals, human all and non- obligations we if recognise aspecies-neutral concept of ‘human’. Instead, to expression these we can full onlygive and species-marker expansive to bequalified by the arbitrary obligations required by human are dignity simply too broad case, The ethical an ofhuman oxymoron. then is talk dignity cannot beconfineddignity to humans alone.is the If this conclude that theethical obligations required ofhuman sentient creatures that possess interests then we have to consideration ofinterests and that non-human animals are If Iam correct that human requires dignity theequal then) v Openshaw inNSPCA . in therecent judgment ofCameron minority JA(as hewas pleasure and pain, apoint that was emphatically recognised New Directions (2004)19–50. Sunstein and MCNussbaum (eds.) Animal Rights: Current Debates and to such aprocess see ‘Animal SWise One Step Rights, at aTime’ inCR (1999). 1993. 71 of1962;Societies for thePrevention to Act169of Animals ofCruelty significant stumbling blocks. toSouth theinterests Africans ofanimals would present thegeneralcombined with ambivalence of ofthemajority extension.logical Theslow-moving nature ofourlegalsystem of acommitment to under ourConstitution dignity to their unavoidable consequence we if take theethical implications to betreated deserving worth asbearersis an ofrights. This presents case fortheirsentience. themost powerful capacities fortremendous pleasure and unspeakable suffering companion embodied creatures animals ascomplex, the with ofour experience asourdaily as an unsupported assertion direction. aclearis moral imperative to gradually develop thelaw inthis that cannot beconfined dignity to human beings, then there 28 For economic, analysis ofthepolitical, religious and afull legal hurdles is emphaticallypoint This made inJM Coetzee The LivesAnimals of para 78(RSA) 38. (462/07)[2008]ZASCA Performing Protection Animals Protection Act24Of1935;Animal Act 5 2 Nevertheless, oneaccepts if Iam content to leave claim this 4 to full bearersto full ofmoral 3 Saga Hlophe the Victory in By DarioMilo of the Court, led byof theCourt, Judge Moroa Tsoka, that ruled the proceedings oftheJSC to bedeclared The majority unlawful. appliedsuccessfully to the South Gauteng High forthe Court Before theJSC Judge could conclude thehearing, Hlophe judges reported and onby widely themedia. Evidence was then heard from theConstitutional Court JSC ultimately resolved to continue thehearing absence. inhis requested anumber ofpostponements butthe dueto illness, year this intheglare ofmediaApril publicity. Judge Hlophe indeed,And theformalhearing proceeded onthefirst of justice. It guardsagainst the …surety is ofall improbity". soul of the very is Bentham, famously "publicity said, who endorsed thesentiment ofthephilosopher JeremyWillis president –was notsufficient toexcludethe media. Judge of thechiefjustice, chiefjustice and thedeputy thejudge was requiredthis inorder to protect oftheoffice thedignity that theJSC had given forkeeping thehearing closed –that The reasonthe open, unless good cause otherwise. shown is required to interms hold rules theformalhearing ofitsown in in theSouth Gauteng High that ruled Court theJSC was application to set asidetheJSC's Judge decision. Nigel Willis broughtStudies an ofthecourt, urgent intervening asafriend Institute,of Expression theCentre with Legal forApplied unity, anumber media ofprint groups, eTV and theFreedom that thehearings would beclosed. In show an important of just afew hearings days were before dueto theApril begin, But after the JSC considered these representations, itdecided, yearthis –shouldbeopen to thepublic. theformalhearingwhether –ultimately scheduled forApril representations from interested onthequestion of parties for an open hearing. To itscredit, theJSC had for then called formal hearing into thecomplaints, themedia had agitated announced inJuly last year that theJSC would beholding a as ashockto members ofthemedia.Ever since itwas The decision to investigate the complaints inprivate came Hlophe. Justice Bess Nkabinde, Judge ofappeal Jafta, Chris and Judge Justice Pius Langa,Chief Deputy Justice Dikgang Mosekeke, Chief closed doors" with "behind by conducting interviews The JSC decided that the complaints would beinvestigated counter-complaint against theConstitutional judges. Court of theWestern Cape High John Court, Hlophe, and his the judges oftheConstitutional against Court Judge President SC, and Moerane Marumo SC, to investigate thecomplaint by president oftheNorth Gauteng High Ismail Court, Semenya committee comprising Judge Bernard Ngoepe, the Judge decided to appoint a3-member sub- Commission (JSC) The drama began on22 when the July 2009, Judicial Service I values ofopenness, transparency and accountability. that government inaccordance must function the with reaffirmed fundamental the principle constitutional Gauteng High handedwhich Court aruling down year, this n August Judge Frans Malan intheSouth 29 in camera have the JSC preliminary investigation held in the open. various media groups in the successful High application Court to Dario Milo isapartnerat Webber Wentzel. He represented that thepublichas seen theJSC doitswork inthe open. or notoneagrees outcome, this point is with theimportant complaints should not proceed to aformal hearing. Whether complaints. It has now doneso, that by amajority ruling the public had to aright see theJSC at work inresolving these of theircomplaint, and acted ulterior The purposes. with to right by prematurelyhis dignity informing thepublic Hlophe alleged that theConstitutional judges Court invaded attempted to influence oneofthe Court's decisions. Judge judgesCourt alleged that Judge Hlophe had improperly complaints that were being investigated. The Constitutional There can benounderestimating thesignificance ofthe the hearing was granted costs. with media. The application by media groups and others to open moreover, noneofthejudges opposed therelief sought by the been nosuggestion that theyhad notbeen able to speak freely; judges had already testified in an open hearing and there had freely. Judge Malan rejected these arguments. Most ofthe nature oftheinvestigation would thejudges allow to speak and that theclosed"outside glare theintrusive ofpublicity", that fortheinvestigation itwas important to take place constitutional ofthose rights affected". The JSC had argued appreciation oftheimpact of[its]"with onthe decisions the JSC was obliged to power exercise itsdiscretionary in accordance theConstitution". with an organ As ofstate, powercomplaints, does "this notabsolve them from acting empowered to change itsprocedure foradjudicating onthe Judge Malan agreed, that ruling although theJSC was and toofopenness. theprinciple regard to theconstitutional offreedom rights ofexpression, exercised itsdiscretion to due decideonaclosed hearing with application before Judge Malan, arguing that theJSC had not They down. againlying came together to bring an urgent the media and others were notgoing to take that decision investigationpreliminary conducted by asubcommittee. But its procedure inrelation to thecomplaints to that ofaprivate decisions” of the Court’s influence one attempted to had improperly Judge Hlophe alleged that judgesCourt Constitutional “The 30 prompted theJSC to change change initscomposition that JSC had amaterial experienced fact that, inthe meanwhile, the High together Court, the with that ofthe decision itwas this It appears papers from court had to commence denovo. ordered that these proceedings had given evidence. The court Constitutional judges Court the the hearing which during and days set asidethetwo of taken place inHlophe's absence, proceedings ought notto have 31 in camera 32 African law in South of ‘spouse’ meaning The clarity. uniformity and The direneedfor Associate Professor, LawFaculty (BA LLBMCL) By ProfessorNazeem Goolam which was particularly disturbing and disturbing disappointing. was She particularly which case of Daniels vCampbell NO2003(9)BCLR 969(C) However, itwas thejudgment ofVan Heerden inthe pronouncement. would have thought that would have the courts on this built that Muslim marriages are notcontra bonos mores. One –inRylandtime vEdros 1997(1)BCLR 77(C) stated entrenched inourlaw. It was Judge Farlam forthefirst who held theconcept ofmarriage asmonogamous firmly is judgment ofIsmail vIsmail 1983(1)SA1006(A) thecourt according to Muslim rites. In the1983Appellate Division Estates notincludeawoman Act66of1965did marries held thatcourt that section 49(1)oftheAdministration of In thecase ofDavids vThe Master 1983(1)SA458(C) the now some ofthese briefly examine decisions. very I shall ‘spouse.’ terms law ofSouth African and thus beregarded asalawful in general –may berecognised asbeing legally marriedin a woman marriedinterms ofIslamic law –and religious law have courts thequestion grappledAfrican ofwhether with oneofmyis areas For ofexpertise. many years South the fact that Islamic law, Islamic inparticular law, family I sayis that definition this ‘quite remarkable’light in of Section 21(13)provides: 1936. the solvent spouse, to befoundintheInsolvencyAct 24of the quite remarkable of definition ‘spouse’, herereferring to of thethings Ihave learnt thus far inteaching thecourse is neither an interest However, norany expertise. perhaps one before taught and asubject Ipossessed and course inwhich H “…the Constitution demands not marriedto oneanother.” awoman asher husband, with or aman although living aman wife custom, ashis with andawoman also living ofamarriagehusband according by virtue to any law or orahusband inthelegalwife ora sense, awife butalso “In section theword this ‘spouse’ means notonlya statutes under consideration view the wordview ‘spouse’ in the values ofour society. In my a change inthe legal and must be[interpreted] to that Ihad was acourse this which never of Companies. Iinformedthestudents The Law of Insolvency and the Winding-up 2009 Iwas asked to teach thecourse on aving University joined Rhodes inJuly reflect change” this inEngland. married to wife his lawfully was still regarded asa’spouse’ was that with theman shewas living SA 555(C). Indeed theonly reason that Ms Wyld was not thatpoint is ofChaplin NOvGregory (or Wyld) 1950(3) be regarded asa‘spouse’ interms ofthelaw. Thecase in terms of theInsolvency ormistress aconcubine Act, could the more onebears glaring when inmindthat, in1936, The ludicrousness of Van Heerden’s reasoning becomes all 522. 2000THRHR itend?” polygamous saga: will when potentially 369;see GoolamLaw also “The Review interms law?”whore 2004Stellenbosch ofSouth African under thelawof aMuslim a wife ofsuccession: shestill is lawAfrican (see Goolam and legal Rautenbach “The status interms awhore ofSouth still is aMuslimwhether wife terms law. ofSouth African led a This colleague and I to ask forthefact thatas authority Muslim marriages are validin nevertheless felt that could notbeinterpreted decision this and enhanced and thevalues pluralism, ofdiversity she that theEdros was enlightened decision and progressive marriedinterms ofIslamicor wife rites. Acknowledging of 1990could beinterpreted so asto includeahusband Spouses intheMaintenance Act27 ‘survivor’ ofSurviving in theIntestate Succession Act81of1987and theword was simply required to theword decidewhether ‘spouse’ Judge Ngcobo added: Africans. all South of andaffirms the equality equal worth freedom people. forall Thenew constitutional order now legal order that notrespect did human dignity, and equality era. Oldorder legislation was interpreted inthecontext ofa pre-constitutional different erafrom was very thepresent theold orderwhich legislation was interpreted the during legislative interpretation. He stated that thecontext in remarksimportant regarding theproper approach to Judge Ngcobo, Judge with concurring Sachs, made some interpretation! refreshed onthebasicofstatutory principles her memory Heerden, intheearlier Daniels judgment, ought to have ofthese Actswould befrustrated.the purpose Perhaps Van such interpretation. If interpretation this were notfollowed the context ofthese terms intherespective Actssupports meaning to includes parties aMuslim marriage and that that theword ‘spouse’ intheirordinary and ‘survivor’ to afairamount bewelcomed ofrelief. with Sachs argued and Others NOand Others 2004(7)BCLR 735(CC), is Sachs intheConstitutional inDaniels Court, vCampbell However, themore and logical sound reasoning ofJudge to reflect change” this the statutes under consideration must be[interpreted] values ofoursociety. In theword my ‘spouse’ view in “…the Constitution demands achange inthelegal and Nanzeem Goolam. 33 in camera 34 disputes – tenancy in labour interpretation Purposive By ProfessorRBMqeke too little, late.

apartheid redressing theinjustice caused by land dispossession ofthe Rensburg inNgcoboof Appeal and Others vSalimba Ngcobo CC; vVan the correct one.issue The was settled bytheSupreme Court approachdisjunctive to ofa labour thedefinition tenantis bone ofcontention has been aconjunctive whether or T 8 7 6 5 4 3 2 1 acquired by Africans the onlylegal way cropping in which and grazing could rights be intocontrolAfricans of urban areas, theinflux labour becametenancy Constitution has addressed insection 25(5). this practical reasonableness requirement people. ofaparticular Thenew he points outthatjustice to oneseeks assess indistributive the orinmaking owners to ofcompensationrights therightful inkind. ofcorrection thenotion manifesteddealt with inrestoration ofland gave Act22of1994 Rights ofLand 123 which to theRestitution birth inequality. In the1993Constitution ofss,121,122and theprovisions the author comments of correction onthenotion and remedying of Natural Law and Natural Clarendon Rights, Press (1980)178where successor may apply for an award of– “Subject alabour to oftheAct, tenant theprovisions orher orhis and Another vNtswane 2007(6)SA129(LCC) theapproach cases with two Claims oftheLand CourtinLabuschagne (6) 199(CC) seeks toseeks about bring corrective originates from s25(5)ofthenew Constitution which has occupied interms ofsection 16oftheAct oftheland heorshe for theacquisition oftheportion to orher lodgement his in theActwas crucial ofaclaim that theapplicant was orwas notalabour tenant asdefined 1 of the land Reform (Labour1 oftheland Tenants) Reform Act1996 satisfies of thedefinition labour tenant asdefined in section theapplicant issue ofwhether preliminary before court Cases onlabour tenancy arethe concerned, usually with Under Actand theregulations the1913Land were which used to justice see On thesame thedistributive author at 175where corrective On the notion orcommutative justice see John Finnis Section 16(3)reads thus: Act3of1996 1999(2)SA1057(SCA) Brown vMbhense and Another 2008(5)SA489(SCA). Contrast these See theDepartment ofLand Affairs vGoedgelegen Tropical Fruits 2007 2001. theDirectorwith General interms ofs17onorbefore 31March lapse noapplication shall lodged if is inlandrights and servitudes enjoyed…Provided that to theright apply to be awarded such land, heorsheenjoysconsistent which rights orhas previously with asare reasonablyother servitudes orare necessary reasonably (d) ofaccess ofright to Such water, servitudes ofway rights or may have been proposed by theowner and ofthefarm, (c) which inland Rights elsewhere orinthevicinity onthefarm the parties; was deprivedfamily to contrary theterms ofan agreement between commencement orher heorshehis and which Act, ofthis or used aperiod of5years during immediately to prior the (b) occupied orher which heorshehis formally The land of s3, (a)is entitledwhich heorshe The and to occupy oruse in terms 3 8 . past. decisions oftheConstitutionaldecisions Court notehis has been prompted recent by two the Supreme ofAppeal Court of labour tenancy disputes. In thepast the signified anew approach inthe adjudication 6 and distributive 2 , which have, which 5 . The latter 7 justice in 4 . Afinding 1 and 35 in camera 36 In Landman and Another vNdlozi; Landman and Another should bevalued from theperspective oftheemployee. has been held that components the various oftheearnings In value oftheworkers’ calculating themonetary earnings it predominantly to inthe right occupy and use land”. in cashorsome ofremuneration other form and not or lessee bepaid heor sheshall ofthefarm, predominantly “in relation forthelabour heorsheprovides to theowner in terms ofacontract provides that ofemployment which The latter is who employed isdefined asaperson farm ona sectionsection defines I.This a labour tenant asa person; the conjunctive reading ofparagraph (a), (b) and (c) of peculiar problems oflabour tenants has been frustrated by indicatedAs above positive legislative intent to redress the labour tenants back orto land oftheirformer retainas portions certain removed from theirancestral land and then allowed to come In land ofcases were theoriginal owners themajority forcibly 10 9 security oftenuresecurity and that prejudiced theyare notfurther redressgive to labour tenants by ensuring that theyobtain was enacted which Act to regulate labour tenancy was to rights. One of the objects of the tenants had become precarious and led to widespread loss of Another noted, supra,thecourt that oflabour theposition was caused by theforced removals. In Brown vMbhense and ofs25(7)theyhadprovisions inmindtheinjustice which thedrafters ofthe insertedConstitution When the the1960sandduring 1970s. forcedwholesale removals ofsquatters and labour tenants grazing theapartheidstate when rights had embarked on became labour tenants and were granted cropping and theland was taken overWhen by thecolonialists they the land. cropping and grazing theirdead rights.buried Theyalso on indigenous to rights theland andexercised also occupation, according torecord, thecourt had enjoyed undisturbed land knows asBoomplaats inthe1800sand theirforebears of theMaake were ofthe who owners family theoriginal This This refers citedto thecase in Note 1 above. 2005(4)SA89(LCC) farm worker.”farm ofs3 (4)and (5)butexcluding theprovisions a with appointed asuccessor to alabour tenant inaccordance of such or such has including afarm, been aperson who providedright orprovides labour to theowner orlessee oftheowner, orfarm farm and inconsideration ofsuch andfarm had theuse ofcropping orgrazing land onsuch (c) parent whose orgrandparent resided orresides ona and provides orhas provided labour to theowner orlessee, oftheownerfarm and inconsideration ofsuch right grazing land referred onthefarm, to inpara (a), orauthor (b) has orhas had who to theright use cropping or “(a) residing is who orhas to aright reside onafarm; 9 . The case in point is that. Thecase inpoint ofthemembers Land (labour Reform Tenants) 10 . stated: rationale forthejudgment appears at 1064C-D where itis One feels, after reading JAjudgment, that Olivier the stated:B at 1070thecourt slovenly draftsmanship oftheAct. At page 10691–J and A– Unfortunately hidbehind abad what itcalled thecourt and a conjunctive reading ordisjunctive ofthedefinition. to theanomalies that intheadoption ofeither would arise first The referredcourt JA. from thejudgment ofOlivier (Labour Tenants) Reform section 1oftheLand Actappears reasoning fortheconjunctive reading of ofthedefinition requirements of(a) and (b) The ofthedefinition. court’s cover the entire theemployee period the complied with indicated that thedetermination ofthevaluation should consider each merits.Thelearned case onitsown judge to adoptunwise adogmatic approach and that should courts v Gama 11 This appears This inthe Preamble to the Act the Republic of South African Act108of1996. ofSouth African the Republic (ii) are guaranteed interms ofs25theConstitution of (i) heenjoys at Common law owner’s real which inand rights to property his asa labourqualifies tenant detractsfrom the registered approach might beappropriate, afinding that aperson toimportant bear inmindthat, although apurposive “In“labour interpretingis tenant” it of thedefinition grave concern” recently foritself and must as1996speaks beacause for since theActwas putontheStatutecourts book as The sheer number ofcases that have come before the of labourdefinition tenant intheAct. asaconsequence arise ofthewordingand ofthe will has properly thought through thesituations that all can to Iam besaid. notconvinced that thedraftsperson having inmindtheconsequences intended ofwhat is terms, terms,not invague butinexact orpolyphonous legislation and then formulate appropriate enactments, consideration intended itis to to thepolicy in enshrine of legislative drafting. Adraftsperson give should careful applicable thelegislationfirst is principle is whom comes to and outtherights spelling ofthose duties to “Meticulous and unambiguous craftsmanshipwhen it 11 Gildenhuys that Jwas itwould oftheview be labour tenant asdefined .” “ In proceedings eviction respondent would allege would often allege that farm worker the whilst the respondent was a the applicant owner that he orshe was a labour tenant asdefined . therespondentworker would whilst allege that heorshewas a owner would often allege that the respondent was afarm number ofbeneficiaries. proceedings In eviction the applicant was the fear that approach thedisjunctive would lead alarge writer’s view, reasons thetrue fortheconjunctive approach that such an approach would lead to absurdity. In thepresent The judgment that rejected disjunctive approach the thought 13 12 others These were: Tselentis Mining (Pty) and Another vMdlalose and readingdisjunctive oftherequirements ofthedefinition. by theSupreme supported the onlytwo ofAppeal Court moreOf judgments theissue thananalysed dealing six with the arguments read thus: appearsquo which at 10617–I.For thesake ofcompleteness arguments advanced onbehalfa oftheappellants inthecourts quotationThe last ofthis was extractedpart from the abalancestrike between labour tenants and owners…” assistance asitmust bekept inmindthat to theActseeks theobject oftheActand lead tostultify injustice ofno is reading oftherequirements would insubstantial measure In thefinal a analysis, bald statement that a conjunctive meet the cut-off date .” be few claims can would little, too late asthere might characterized asbeing too seen asarelief that can be “..the new approach be will 311 Tenancy:“Labour Recent Developments” 1998Stellenbosch Law Review 1998(1)SA406 (N). Most ofthese judgments are noted by JMPienaar 1998(1)SA411(N) check orverify”. would more often than notbeimpossible to determine or they had been orwhere theyhad lived. In practice this what such person’s parents occupations had been orwhere have intended to beextended to theenquiry determine requirements ofparagraph (b); thelegislature could not and claimshas life to her lived orhis all have satisfied the labour tenant where and onafarm sheorhewas born of reasonable notice. If a70year person claims to bea only to thecommon compliance law with requirement oftheowner oftheland at subject thewhim eviction in exchange to fortheright occupy and use land from toAct is protect traditionally rendered those who labour of theActand to lead to injunctive. The object ofthe reading would insubstantial theobject measure stultify three paragraphs beread conjunctively, because such a intention ofthelegislature could nothave been that the be read reasons; forthefollowing disjunctively the “… that paras (a), (b) and (c) fall to ofthedefinition 12 and Klopper and Others vMkhize and others 13 . few claims can would meet thecut-off date. be characterized asbeing too little, too late asthere might be March beseen 2001thenew approach as arelief that can will to thepresent ofthecut-off that date writer inview of31 inbothcasesAlthough thereliefs sought succeeded, itseems Chiefthe Deputy Justice stated: Moseneke advocated DCJ approach. apurposive In para 53 In theDepartment ofLand Affairs vGoedgelegen Tropical Fruits approachPurposive owner orlessee oftheland concerned”. a labour tenant orher and parent his orgrandparent, and the entered into avers between the person who that heorsheis regard to the“combined effect and substance ofall agreements or not a persona labourwhether is tenant, must the havecourt judgment, stated themajority giving that indecidingJA, judgmentseen ofNugent from theminority Van JA. Heerden therequirements all of(a)not satisfy (b) and (c) ascan be generous interpretation intheBrown casedid astheplaintiff 1994.The SCA Act, adopted Rights ofLand Restitution a labour tenants were considered interms ofs2(1)(d) ofthe the Brown vMbhense and Another, although inthelatter case was largely influenced by the approach of Moseneke in DCJ The intheDepartmentSCA ofLand Affairs vGoedgelegan Prof Mqeke RB historical background ofthelegislation”. where appropriate, to pay dueattention to the social and sought to beremedied. In that helpful, why itis part, is legitimatethe purpose, itis themischief to seek to identify linked to theConstitution…umbilically In searching for understood because purposively remedial itis legislation of the Constitution Act mustbut of also the Restitution be “It by now is trite that notonlytheempowering provision 37 in camera 38 eyes, makesureitsworthwatching “For wepayapriceforeverything constantly inmindasweakdesire When yourlifeflashesbefore brings weakresults”NapoleonHill achievements isdesire.Keepthis we getortakeinthisworld,and even thoughambitionsarewell be cheaplywon.”LucilleMaud worth having,theyarenotto Tarryn Cooper-Bell “The startingpointofall Angela Adams Michelle Bate Montgomery Call mebuttercozI’monaroll…:) Dream it,chaseitandreapthe Work hard,partyharder! Lyndal Annandale Robyn deJager Donovan Brown rewards ignorance andself-conceitedness. learning tosailmyship”L.M.Alesh “I wanttoberememberedformy the visionandoutoftunnel “I amnotafraidofstormsforI hits notjustmymisses”FallOutBoy Put onyourspectacles,stepinto John-Carlos Atouguia Rufaro Chirwizo Lumka Dlukulu I ie mn h gis hn he when grins who man a like “I without losingenthusiasm”Winston “Courage isgoingfromfailure Eat, drinkandbemerry! fights” WinstonChurchill Gavin Bandey Lutho Dzedze Luke Choate Churchill “You canalwaysjustworkingroups “I wasalwaysafraidbutInever “The endsjustifythemeans”N. Eleph Gula-Ndebele of one”G.W.Barker Virashmi Jeram Kyle Felix Machiavelli ran…” destroy the evidence that you tried. Suggestions asto2010pleaselet can’t do,that’showIgettodo “I amalwaysdoingthingsthatI Roxanne Francis-Pope If atfirstyoudon’tsucceed- Anthony Hanauer them” Picasso Sybil Julius Anonymous me know... Class of2009 oldest professionsintheworld-and we aimtoplease!”JohnMortimer It’s notWHATyouknow,butWHO “Lawyers andtartsarethetwo Goscelin Gordon Blane Hansen Lonwabo Jwili And soitwas you know felled, river polluted and fish caught will werealisethatmoneycannot I havelearntfromothers.Forever Only onceeverytreehasbeen remain astudentandindebted Ukuba uyayifunauqiniseke Melissa Groenink Bongani hoho Henry Kapalu be eaten 39 in camera “Dream, diversifyandnevermissan 40 Destiny isnotamatterofchance, thing tobewaitedfor,itisa to beachieved.WilliamJennings understood that“huur gaatvoor I wasfreakedoutaboutsalebut it isamatterofchoice;not when Iopenedthepapertruly Zanoodene Kassim angle” WaltDisney Michelle Lowe G Mangope koop” Bryan overalls and looks like work” Thomas respect thelawshouldneverwatch people becauseitisdressedin “Opportunity ismissedbymost People wholovesausageand Paul-Michael Keichel “Si hoclegerescisnimium Amanda Mapanda Lindsay Luppnow either beingmade. eruditionis habes” Edison “Our livesbegintoendthedaywe ever totalkseriouslyabout”Oscar have, inthetimeyou become silentaboutthingsthat “Life isfartooimportantathing “Do allyoucanwithwhat place youare”Nkosi Johnson matter” MartinLutherKing Gugu magwaca Claire Marais Gareth Latter Wilde You canbuyfishandchipsbutyou “The preambletotheConstitution Don’t takelifetooseriouslyoryou is notathroatclearingexercise” will nevergetoutalive! can’t buyexperience! Andrew Leaker Kirthi Maharaj Tladi Marumo Sachs J Ke naleModisa.tlabeketlhoka Only thosewhodaretofailgreatly steal morethanahundredmen A lawyerwithhisbriefcasecan Rufaro Mazvimbakupa can achieveJ.FKennedy Mathapelo Moloto Despina Nicolau with guns… eng! “That whichishatefultoyou,donot do toyourfellow.Thatisthebasisof The measureofamanisnotwhere To avoidbeingvictimsallthetime, stands intimesofcontroversyand law; therestiselaboration.”(With we needtochange thesystem. & convenience,butwherehe Siphiwe WhitneyNkala he standsintimesofcomfort Philladelphia Mothupi Chris McConnachie challenges” DrKing apologies toHillel) Class of2009 fatal, it’sthecouragetocontinue “Success isnotfinal,failure You arewhatyoudo,sodothe Godfrey MutayaMsisha that counts”WinstonChurchill “May thediceflyhigh” Donna McFarlane Andrew Roberts extraordinary To every set of facts, there are three to anddefendtheinterestsof Calm seasnevermadeagood which itisanhonourtobelong Ours isanobleprofession,one stories: his,hers,and thetruth. justice inspiteofthereward. Mavundla Mhlambi Innocent Mtonga Kerry Rodgerson sailor 41 in camera 42 Integrity istheabilitytotrustandbe and thethirdrunsoffwithit.There’s When twodogsfightforabone, a lawyeramongthedogs:) Melindah Sango Natalie Shama Venni VittiVicci Claire Small trusted Eey e bgnig oe from comes beginning new “Every take cannot who lawyer no is He some otherbeginningsend” Peggy Schoeman Rowan Stafford What apleasure! John Shija both sides “Knowledge isrealisingthestreet on way,wisdomislookinginboth adventure” AlbusDumbledore “Let usstepintothenightand pursue thatflightytemptress, Carpe Diem-Seizetheday Grace SingGen Jessica Staples directions anyway” Kate Selwood “Wasted youthisbetterbyfarthan Never stopdigging,umight3 a wisemanwithnothingbutold Some sayimpossible,Ii’m Chipo Sitotombe MP Shabalala Ryan stewart feet fromgold. possible. age” disregard either,forwearethesum of thechancetobeextraordinary” that wemustberegular…itrobsus take strengthfromthebad,never 5 yearsofvarsity,2degreeslater. Law schooltaughtmeonething: how twotake situationsthat are exactlythesame andprove “We mustovercomethenotion “Treasure thegoodtimesand them different!Thus, lawisa Matthew Stroucken Robyn Watermeyer of ourexperiences” Tarryn Travill bottomless pit! Uta Hagen Yu a’ ltgt wt a soccer a with litigate can’t “You more the change, things more The wat Hom deur staat, in alles tot is Ek team fulloflawyers”GWBarker Kristy EmmaWest Renaté Sypkens they staythesame Chris Tucker my kraggee Class of2009 weird turnspro”HunterS.Thompson “Research iswhatI’mdoingwhen A Candlelosesnothingbylighting “When thegoinggetsweird, another candle.LessonLearnt. I don’tknowwhatI’mdoing.” Curtis vanHeerden Wernher VonBraun Rudo Tinarwo Nikita Young the windisgonnaBlow.Theraceof man issuffering,andIcanhearthe moan ‘Causenobodycanmakeit know, Stormcloudsaregathering, out herealone?”MayaAngelou “I amanidealistwithoutillusions” “Listen closelyI’lltellyouwhatI Anchen vanWyk Tsepang Tlhapi JF Kennedy 43 in camera 44