The People’s PLJ Law Journal Volume 1 • Issue 1 • November 2013 Foreword by Justice Zak Yacoob The People’s Law Journal In this issue Issue 1 • November 2013 peopleslawjournal.nu.org.za v Foreword ZAK YACOOB • 1 Introduction Editor: ZACKIE ACHMAT Jacques van Heerden Editorial Committee: 4 Transforming the Judiciary Zackie Achmat, Lisa Draga, Who should judges be? Gregory Solik, Max Taylor, GREGORY SOLIK Jacques van Heerden 11 Free Speech and Communism in Colonial South Editorial Assistant: Africa Isabeau Steytler Rex v Roux and Ngedlane (1936) • ZACKIE ACHMAT This issue of the People’s 14 Train Apartheid in Cape Town Law Journal is funded by the Rex v Abdurahman (1950) Open Society Foundation. MAX TAYLOR • 19 BJ Vorster’s War against White Students Front cover image: NUSAS and the 1956 Riotous Assemblies Act Johannesburg Magistrates’ BRUCE BAIGRIE AND ZACKIE ACHMAT Court. Taken by Bheki Dube, Mainstreet Walks. 24 History of South African Law Development from 1652 to the present (excluding Infographics: Roger Landman customary law) GREGORY SOLIK (TEXT) • ROGER LANDMAN (GRAPHICS) Thanks to: Marcus Löw, Daniel 26 A Permanent Space for Justice Hofmeyr, Axolile Notywala, Rikhotso v East Rand Administrator Board (1983) and Simon Sephton for their WANDISA PHAMA AND LISA DRAGA invaluable contributions to this issue. Special thanks to 31 Decriminalising Sodomy Lisa Draga from the Equal NCGLE v Minister of Justice (1998) Education Law Centre for DANIEL HOFMEYR reviewing articles for this 37 Class Action Litigation issue. An avenue to justice Translators: DANIEL LINDE Bohle Conference and Language Services 45 Amayeza eNziwe aFana nawoMenzi wokuQala, amaLungelo awoDwa abeNzi mveliso ne-HIV eKenya U-Ochieng and Others v iGqwetha Jikelele (the Attorney General) (2012) ZENANDE BOOI 50 Generics, Patents, and HIV in Kenya Ochieng and Others v the Attorney General (2012) ZENANDE BOOI Published in 2013 by Office 302, 47 on Strand, Cape Town, 8001 nu.org.za • +27 (0)21 423-3089 and Siber Ink CC, PO Box 30702, Tokai 7966 Cape Town, SOUTH AFRICA [email protected] www.siberink.co.za © Ndifuna Ukwazi/Siber Ink This work is licensed under a Creative Commons Attribution-Non Commercial-NoDerivs 3.0 Unported License, unless otherwise stated. http://creativecommons.org/licenses/by-nc-nd/3.0/ Cover design and typesetting by GJ du Toit Printed and bound by Creda Communications (Pty) Ltd, Cape Town Dedicated to the memory of former Chief Justices Arthur Chaskalson and Pius Langa. Foreword ZAK YACOOB I am privileged to have been given the and demonstration were ruthlessly used opportunity to write the foreword to to protect authority and apartheid prac- this, the first edition of the People’s Law tices, the horrendous plight of gay peo- Journal. Some may think this title pre- ple and migrant mineworkers, and the sumptuous and even a contradiction in way in which the law limited access to terms. They may say that law journals are courts by limiting actions by classes food of practising and academic lawyers of people in the same position. It has alone. This cannot be true and makes no become fashionable in some quarters to sense. All people are governed by the law suggest strongly that apartheid is gone and affected by it in a good and often now and that we should not continue bad way. All of us need to understand to go back there. Most of these articles how the law affects us, whether a law is refute that point and make it plain how good or bad, and, if it is bad, what we can important it is to remember our history do about it. This journal is, in my view, a and to build on it. wonderful start to this process. They also show the courage and sense These eight articles are all an effort of sacrifice of people of all races in this to write as simply as possible (though I country in the process of the struggle believe greater strides can be made in this to attain a new society. And they speak direction in the future). They are wide- poignantly of how law was used to pro- ranging, dealing with various issues tect and defend people who were victims including the right of vulnerable gay of some of these evil measures and how, people to be treated equally, the impor- in many cases, the people succeeded tance of freedom of speech and protest, because some apartheid judges came to as well as the need to ensure access to the rescue by responding to imaginative courts for poor people in need. The edi- arguments in interesting ways. These tors need to be particularly applauded judges said, for example, that it was for securing the article on the judgment not an offence to speak out against the in Kenya concerned with making medi- royal monarch, that apartheid on trains cine more affordable. was no good unless there was a law that Almost all the articles graphically go allowed it, that an order by a magistrate back to apartheid and its evils in a way prohibiting protest was invalid, and that relevant to ordinary people: the bad way contracts of mineworkers renewed yearly in which judges were appointed, how were not to be seen as separate from clamping down on freedom of speech each other. Built within this theme in all v vi PLJ • 2013 • Issue 1 these articles about past cases is the hope nence. The rights to equality, free- that our judges do not let us down now. dom of expression, and demonstration This brings me to the article which are rightly emphasised and the hope carefully and simply tells us what we expressed that they will be appropriately need of our judges now and suggests respected and protected. The message judge qualifications that are interesting conveyed ultimately is that, to get to the to say the least. society promised by our Constitution, The articles taken together express we need committed people like those the hope that our judges will be as sen- who struggled and sacrificed in the past: sitive and responsive as the judges of the lawyers who brought cases that chal- Kenya in ensuring that the rights of peo- lenged racist laws; the judges who gave ple to make money from medicine are just decisions in those days. We also appropriately balanced with the right of need a government that is more sensi- people to their health. Our judges have tive and caring than those of apartheid already made important contributions South Africa. in this direction, as shown by the arti- I trust that this is the beginning of a cles on the judgments decriminalising series that will be read and understood consensual sodomy and endorsing class by many people in our country and that action as a way in which poor people it will contribute to the achievement of might get some benefit. the constitutional project. The Constitution and the society contemplated also receive some promi- Introduction ZACKIE ACHMAT Ndifuna Ukwazi chose “dare to know” as Hands Umbrella Trust. However, the its motto as a challenge to activist lead- gains need to be protected — as became ers to seek and use knowledge. Reading, evident when Fidentia, the company study, research, and writing must inform responsible for investing these provi- activist leadership and our struggles for dent funds, embezzled more than R1.1 equality and justice. This is nowhere billion allocated to the children, wives, truer than in the study of law. The Peo­ and other family members of deceased ple’s Law Journal is a small contribution mineworkers. to making law visible and allowing it to Workers and their unions, includ- become a tool, and not the object, of our ing NUM and the new Association of struggles. Two contemporary examples Mineworkers and Construction Union related to the mineworkers’ struggle for (AMCU), conduct their battles largely on justice and equality illustrate this point. the terrain of labour law. Yet there is so The Marikana massacre drew the much more. Company law and laws per- world’s attention to work and suffering taining to safety in the mining industry, in mining, South Africa’s most danger- financial services, fraud and corruption, ous industry. Our country’s wealth (like police conduct, and commissions of those of its giant conglomerates Anglo inquiry; all maintain the unequal power American, De Beers, and Goldfields) has relations between mineworkers, global been built up over more than a hundred corporations, and the state. These laws years on the back of mainly black migrant affect every aspect of all our lives but workers from South Africa’s rural areas, remain invisible to those most affected particularly the Eastern Cape, and many by their operation. of our neighbours including Mozam- To realise the fundamental rights of bique, Lesotho, and Malawi. mineworkers, these laws must be laid Defending black workers against bare. Equality must be based on equi- exploitation became a critical task under table access to public goods, including apartheid — one necessary to defeat wealth and income. Laws such as com- minority rule. The National Union pany law must become visible; and their of Mineworkers (NUM), the strongest transformation is imperative. union in our history, was born out of Law is present everywhere but this struggle. One of the major gains remains invisible and concealed with its was the Mineworkers Provident Fund, own language and practice. It is steeped which changed its name to the Living in formalism and a code designed to 1 2 PLJ • 2013 • Issue 1 intimidate, which prevents most people an advance based on the collective strug- from understanding it — not only in gle of poor people.