IN CAMERA 2019 RHODES UNIVERSITY

BREAKING THE TAX LANGUAGE REPERCUSSIONS BARRIER IN OF ILLEGAL LEGAL WORKERS EDUCATION Customary law Development of matrimonial property systems in polygamous marriages CHALLENGES FACED BY SOUTH AFRICA ’ S COURTS IN WHITE APPLYING MINIMUM PAPER ON SENTENCE INTERNATIONAL MIGRATION LEGISTLATION A REGRESSION IN POLICY

IN CAMERA 2019 THE RHODES UNIVERSITY ANNUAL LAW MAGAZINE

EDITORS CLARIZE COERTZE GISELE MANS

PRINTED AND BOUND BY VALMAC PRINTERS PORT ELIZABETH ENQUIRIES [email protected] TABLE OF CONTENTS

2 EDITORIAL 3 FACULTY REPORT 8 LAW SOCIETY REPORT 9 BLA STUDENT CHAPTER REPORT 10 LEGAL ACTIVISM REPORT 11 EXTERNAL MOOT REPORTS

ARTICLES

13 Breaking the language barrier in legal education: a method for Africanising legal education.

16 South African's white paper on international migration: a regression in policy. 18 Through the lens of the Income Tax Act: the repercussions of being classified as an employee when involved in illegal transactions as "work".

20 The challenges faced by the court in applying minimum sentencing legislation.

23 Is the Prevention and Combating of Hate Crimes and Hate Speech Bill necessary?

25 Development of matrimonial property systems in polygamous marriages.

27 C:SARS v Volkswagen SA (Pty) Ltd [2018] ZASCA 116: Closing the door on valuation of closing stock for tax purposes.

28 FAREWELL TO THE FINAL YEARS 30 FINAL YEAR CLASS OF 2019

1 from the editors

After many months of hard work we are thrilled to present to To the rest of the Faculty staff, thank you for your guidance you the 2019 edition of the In Camera Magazine. When we and supervision of our authors and your heartfelt began compiling this edition we set the goal of creating a contributions to this edition. magazine filled with diverse articles on various legal topics. In addition, we wished to showcase the achievements of our To our authors, thank you for your hard work in submitting students on the international stage with the many external the content contained in this edition. Without you we would moot competitions participated in this year. have nothing but blank pages.

We would like to thank the following people, without which To our Law Society members, thank you for trusting us with this would not be possible at all. To Professor Glover, thank this project. We hope we have made you proud. Last but you for your invaluable guidance, supervision and editing. certainly not least, to our fellow committee members, thank This edition is just as much for you as it is for our readers. you for your support and encouragement. You have pushed us to make this year and this edition an unforgettable one. To Fez and Chad, thank you for putting up with our bombardment of emails and helping us to reach the student We hope that you enjoy reading this years In Camera as body in order to collect such great submissions. much as we enjoyed creating it for you.

CLARIZE & GISELE

2 FACULTY REPORT

FACULTY REPORT 2018 - 2019

By Professor Rosaan Krüger, with input from staff and students.

In the short 12 months since the previous a number of individual prizes were also year stream, entering the LLB only after annual report, staff and students in the awarded at this function: completing a first undergraduate degree. Faculty of Law made the most of the ➢ Brian Peckham Memorial Prize: many opportunities for growth available Best student in Environmental Law: Postgraduate students to locally, nationally and internationally. Mikaella Bodeux The number of postgraduate students in In 2019, our students participated in three ➢ ENS Africa Prize: Best student in the Faculty is increasing steadily, with a international moot competitions and a Labour Law: Christopher White total of seven LLM candidates and five student conference held at the University ➢ Lexis Nexis Book Prize: Internal PhD students registered for postgraduate of Venda. One of our 2019 LLB book prize for Moot winner(s) in the studies for 2019. graduates, Silke Joseph, was a joint Final Year: Robin Smith and winner of the South African Law Reform Tuscany Parkin (joint winners) Student news and activities Commission Pius Langa Essay ➢ Fasken Martineau Prize: Best LLB Student research Competition, and our long-standing student in Competition Law: 2018 final-year LLB student Trecia visiting professor and alumnus Judge Christopher White Makhubele was selected to represent Clive Plasket was appointed to the ➢ Judge Phillip Schock Prize: Best South African at the Model African Union Supreme Court of Appeal. final year LLB student: Christopher Summit in Addis Ababa, Ethiopia in White October 2018. This opportunity forms These great achievements are but a few ➢ Juta Law Prize: Best final year LLB part of the prestigious Friedrich-Ebert- of the highlights of the recent academic student, based on results over Stiftung Fort Hare Autumn School on year. In what follows, I provide an penultimate and final year LLB: Social Democracy and Political overview of other significant event and Jessica Steele Economy, a leadership programme achievements. ➢ Mtshali and Sukha Prize: Best supplementing the formal academic student in Legal Ethics and curriculum of university students. Students, student news and activities Professional Responsibility: In Memoriam Christopher White Silke Joseph, a 2019 graduate of the Final year LLB-student, Nkcubeko ➢ R G McKerron Memorial Prize: Faculty who is currently employed on a Balani, passed away on 6 April 2019. A Best student in Law of Delict: temporary basis in the Faculty, was scholar at heart, Nckubeko thought Jessica Steele announced a joint winner of the SALRC deeply about law, its heritage and impact ➢ Spoor & Fisher Prize: Best student Pius Langa Essay Competition. She in society. These ideas informed his in Intellectual Property (Patents & submitted a shortened version of her LLB winning essay in a 2016 essay Copyright): Christopher White research essay entitled “The more things competition on decolonisation of the ➢ Phatshoane Henney Incorporated change, the more they stay the same: family law curriculum. May his medals: Awarded to students who The constitutionality of immigration law in intellectual commitment inspire others. obtain their LLB degrees with South Africa”. Her achievement was distinction: Jessica Steele, celebrated at a gala dinner event hosted Graduation and awards Christopher White, Tuscany by Juta and the SALRC in September On 11 April 2018, 70 students graduated Parkin and Siphosethu Khumalo 2019. with LLB degrees from the Faculty. ➢ Tommy Date Chong Award: Awarded to student who makes the In July 2019, two final year students The Faculty celebrated graduation with greatest contribution to the Law delivered papers at the South African our graduates, their partners and their Clinic in their penultimate and final Law Deans’ Association’s Student parents at an evening function held at the years of study at the University: Conference on Decolonisation and Faculty. Silke Joseph Africanisation of Legal Education. Students from 15 universities At this celebration, 26 final year students LLB intake 2019 participated in the conference, and (37% of our 70 LLB graduates) were 71 students accepted offers into LLB benefited from the insightful presentation awarded Dean’s list certificates in penultimate year this year, joining 11 by the key-note speaker, Prof Tshepo recognition of academic achievement students in the four-year LLB stream in Madlingozi, Wits University Professor (attaining an average of at least 65% for the penultimate year. As in years before, and Director of the Centre for Applied all their final year courses). Additionally, the preference of our students is clear: Legal Studies (CALS). Madlingozi 86% of our law students choose the five- challenged the students to engage in and

3 FACULTY REPORT outside the lecture room about issues senior lecturer of the Law Faculty, Mr final, we celebrated with the Kenya Law regarding decolonisation. Gordon Barker. Tonthoza Saukila was School, who won the competition. awarded the Phatshoane Henney Inc Rhodes students, Thokozani Dladla and Shield for the top mootist in the 25th African Human Rights Moot Court Mfundolunthu Somandi, respectively penultimate year, while Nicholas de Wet Competition presented papers entitled “Breaking the was the runner-up. The 2019 African Human Rights Moot Language Barrier in Legal Education: A Court Competition was hosted and held method for Africanising the Legal External: at the University of Botswana, from 1 to 6 Education” and “Retributive justice or LexisNexis Moot Court Competition July 2019, in Gaborone, Botswana. restorative justice? The application of Four penultimate-year LLB students There were 54 teams that participated in Ubuntu in Criminal sentences” at the participated in the Lexis Nexis Moot the competition. Jethro Weeks and conference and submitted these for Court Competition which was hosted by Christopher Stroud represented the potential publication. the University of Pretoria from 3 to 6 Rhodes University. The Rhodes Univer- October 2018. Eight universities sity team was accompanied by Mr Moot Court and Mock Trial participated in the competition. Rhodes Nkosinathi Mzolo, guided and assisted Programme and Competitions University was represented by by Professor Laurence Juma. Internal: Mthokozisi Alpha Zungu, Mfundoluntu The final year students were required Somandi, Ryan Birkner and Thokozani ICC Moot Competition at The Hague prepare and deliver argument on behalf Dladla. Ryan Birkner and Thokozani Five final-year LLB students, - Daniel of an amicus and the DPP on the issue of Dladla made it to the semi-finals of the Coetzer, Ayanda Mpofu, Bryony Fox, chemical castration. After the internal competition. The Rhodes team was Clarize Coertze, and Erika Heaton - rounds, the finalists Siphosethu coached by Mr Shaun Bergover. represented the faculty at the 2019 Matebese, Jeremy de Beer, Christopher International Criminal Court (ICC) Moot Stroud and Kristy Bassingthwaighte, Court Competition held in The Hague, proceeded to present their arguments to Netherlands from 2 to 8 June 2019. The Prof Bert Bester (Presiding Judge); Mr Competition which also consisted of a Lutho Jolobe, Ms Tiffany Potts on 25 six-day educational and social March 2019. . The winner of the final year programme, brought together students Moot was Christopher Stroud and the from across the globe, and with diverse runner-up was Siphosethu Matebese. backgrounds and cultures, to challenge their skills as future international lawyers. Over 80 countries participated in the competition. Rhodes University students represented South Africa. The Rhodes team was commended by the organisers for their competitive performances in research and oral presentation.

Jean-Pictet Competition Rhodes University Faculty of Law participated in this year’s Jean-Pictet Christopher Stroud, Jeremy de Beer, Moot Competition in Obernai, France Tiffany Potts, Prof Bert Bester (Presiding from 16 to 23 March 2019. Three final Judge) Lutho Jolobe, Kristy year LLB students - Sibusiso Ngwila, Bassingthwaighte, Siphosethu Matebese Ferdinand Weyers and Andile Msane - represented the Faculty at this The penultimate-year moot which forms competition. The competition brought part of the Legal Skills course, together 96 teams from across the world culminated in the final on 21 August 2019 to argue and present opinions on after an intense week of internal rounds. contemporary international humanitarian The matter concerned a challenge to the law issues. The students were grateful for provision of a spouse’s pension in a International Trade Law Moot the opportunity to participate in this defined benefit pension fund. Finalists Four final-year students were selected to leading international competition as they Kyle George and Tonthoza Saukila represent Rhodes University at the John learned a lot on the subject of argued on behalf of the applicants, while H Jackson International Moot international humanitarian law. Nicholas de Wet and Tsepo Lepelesana Competition in International Trade Law in argued on behalf of the respondents. The Nairobi, Kenya during 23 to 27 April Law Students’ Council formidable bench consisted of Judge 2019. The final year LLB students were: The Law Students’ Council was re- Bloem (from the Eastern Cape Division of Jeremy de Beer, Rhulani Matsimbi, established as a separate structure in the the High Court), Magistrate Govender Stuart Bentley and Ryan Birkner. While Law Department and Faculty, (from the Albany Magistracy) and former the Rhodes team did not make it to the independent from student societies, to

4 FACULTY REPORT ensure that all students are represented, The BLAsc organised a successful that were discussed with RMR were the regardless of society membership. The alternative career talk in May to Zondo Commission of Inquiry into State role of the LSC is to represent the student showcase the different and relatively Capture, as well the recent legal body in the academic structures of the unknown career pathways an LLB developments regarding Makhanda’s Faculty and to provide an official degree could open. The event took the service delivery situation. communication channel between form of presentations by LLB graduates students and the Faculty. Ayanda Mpofu who took the road less travelled. The In the second semester, members of the served as the president of the LSC in speakers were Ms Zakeera Docrat (a society travelled to Home of Joy, a 2019 and set a standard for the Council forensic linguist in the School of community home situated in Joza. Here for years to come. She was ably assisted Languages), Mr Phumelele Jabavu (a the society was given the opportunity to by class representatives Bryony Fox, Gift former journalism lecturer and current give some advice to those considering Baloyi, Rafaela Moutzoures, member of staff in the Law Faculty), and attending university, and how to tackle Thandolwenkosi Mpofu, Chevandre Mr Thoko Sipungu (lecturer in the their final school exams. Doyle, Manzolwandle Cele, Sarah Sociology department). Ms Masi Buso, a Salzwedel and Siphelele James, who counselling psychologist and Career Alumni news represented the different year groups. Advisor in the Rhodes University Career The Chancellor of Rhodes University and Centre was also invited. alumnus of the Faculty, retired President Student societies: Rhodes University of the Supreme Court of Appeal, Judge Law Society Report The flagship event for the society took Lex Mpati, was appointed by the The Law Society started the 2019 place on 6 September 2019 when the President of South Africa in October 2018 academic year with participation in the BLAsc hosted former Public Protector, to head the Judicial Commission of societies extravaganza organized by the Prof Thuli Madonsela, at its first annual Inquiry into Allegations of Impropriety in SRC, a sign-up drive, a meet-and-greet colloquium. Professor Madonsela, the Public Investment Corporation. The at the sports bar, a CV writing and together with the two student PIC, an investment management interview workshop in conjunction with respondents (Ms Sharon Shambaza corporation, manages assets of over R 2 the Careers Centre, and its annual (LLB Penultimate) and Mr Mojalefa trillion, including government employees’ Market Day in the first term. Market Day Motsepe (LLB final year) engaged in a pensions. was well attended by students from all panel discussion on the theme: years, who had the opportunity to interact “Reflections on Political Party Funding”. The Chair of the Rhodes University with a number of law firms and The chair for this event was Mr Thapelo Council, Mr Vuyo Kahla, was appointed organisations. Sponsorship from the Tselapedi, a lecturer from the Rhodes to assist retired Judge Robert Nugent in Faculty and firms Bowmans and ENS University Politics Department. the inquiry into tax administration and made the day possible. governance at SARS in May 2019. Student Societies: Nthuthuko Legal The society’s moot club provided training Activism In June 2019, Judge Clive Plasket, to members on skills and court etiquette The Legal Activism Society faced visiting professor, former staff member that will stand them in good stead in mock significant challenges at the beginning of and doctoral graduate of the Faculty, was trials and moots. The moot club 2019 with a committee of only three appointed to the bench of the Supreme competition final took place in the third members and small budget. But the tide Court of Appeal by the President of South term. Prof Kruger, Mr Jabavu and Mr turned and the society managed to recruit Africa. Bergover presided in the final which was members and adopted “Living won by Cwenga Gogodla. Constitutionalism” as its mission. To give Tuscany Parkin, who obtained her LLB effect to this, the society adopted degree with distinction at the April 2019 The society also embarked on a book the hashtag, #protecttheinnerchild as the graduation, was awarded the Cecil drive and library restoration initiative and society’s slogan. Renaud Overseas Scholarship. This collected books (fiction and non-fiction) scholarship will enable her to pursue LLM for donation to the Duna Library in Joza. In the first semester, alternative-dispute studies in the United Kingdom from 2019- and conflict-resolution workshops were 2020. Student Societies: Black Lawyers conducted with the committee members, Association: Student Chapter and this was later rolled out to society Staff news The meet-and-greet of the BLAsc took members. The society also hosted a Shaun Bergover, clinical legal education place on 27 April 2019 and took the form water awareness event at the Kaif, to lecturer and attorney in the law clinic, of a picnic on St Peter’s lawns. The inform students about the current water obtained his LLM at the University of informal setting provided an ideal situation in Makhanda and to provide KwaZulu-Natal in September 2019. opportunity for members of the water water-saving tips. committee, society members and Faculty Helen Kruuse was awarded a fellowship staff members to interact. Entertainment The society was invited by Rhodes Music to attend training by the National Institute was provided by the University’s Radio on a number of occasions to of Teaching Ethics and Professionalism Marimba band and poet Thulani, who provide comment and opinion on various in Melbourne, Australia, 4-6 December inspired the audience with his powerful legal matters facing the community and 2018. poems. the country at large. Among the topics

5 FACULTY REPORT

Helen Kruuse was appointed as one of The Law Clinic is engaged in a number of Journal Research Publications the United Nations ‘Ethics Champions’ in projects, chief amongst which is the Glover, G. “Remedies, repentance and their Education for Justice (E4J) advice office project, involving training the doctrine of election in South African programme. As part of her ‘championing’, and back-up legal services to paralegal contract law” (2018) Acta Juridica she has devised a localised professional advice offices from throughout the (forthcoming). ethics module for South African law Eastern Cape Province. The Clinic also Glover, G. “Tyrannical masters no more? students together with translations, case offered a one-week Land and Housing Promissory insurance warranties after studies and a youtube video featuring course to paralegals in October 2018, Viking Inshore Fishing (Pty) Ltd v Mutual Wim Trengove SC, a visiting professor to and numerous workshops and other & Federal Insurance Co Ltd” (2019) 30 the Faculty. courses for paralegals throughout the Stellenbosch Law Review (forthcoming). year. Juma, L. “Wading in troubled waters: Prof Helena van Coller was elected to the Supporting the work of the International Board of Directors at the General The Law Clinic community education Criminal Court (ICC) through domestic Assembly of the African Consortium for programme focused on all practical institutions in Kenya” (2019) 7 (1) Law and Religion Studies for a term of 5 aspects of family law in 2019, via Groningen Journal of International Law years. fortnightly Radio Grahamstown talk 46-63. shows, monthly Grocott’s articles, Kruuse, H and Genty, P. “The state’s Community Engagement community workshops and pamphlets. role in the regulation and provision of The Law Faculty has launched a new In April 2019 Prof Jobst Bodenstein and legal services in South Africa and the campaign to develop a Community Mr Terwin de Vos led a Street Law United States: Supporting, nudging or Engagement Strategy that is in line with facilitators workshop attended by five interfering?” (2018) 42 Fordham the Rhodes Institutional Development Law Clinic practitioners, two Law Faculty International Law Journal 373. Plan and the United Nations Sustainable teaching assistants, one Law lecturer Kruuse, H and Whiterar-Nel, N. “Legal Development Goals. A key focus will be (Ms Silke Joseph), two LRC candidate practitioners’ ethics in resource-scarce creating new partnerships to strengthen attorneys, and two Jabez Centre institutions: A discussion of PM Mashishi existing relationships with the Makana fieldworkers. v Mdlala and Others [2018] 17 BLLR 693 Municipality. One of the first initiatives is (LC); (2018) 39 ILJ 1607 (LC)” (2019) the establishment of “The Living Research Obiter (forthcoming). Constitution”, a project aimed education Publications by staff, including visiting Van Coller, EH. “Administrative Law. learners about core human rights and professors, and postgraduate students 2017” ;Annual Survey of South African democratic principles as espoused in our over the past year in national and Law 36-72. Constitution. international publications: Van Coller, EH and Akinloye, IA. “The State v Twynham: The (Ir) Relevance of Law Clinic Books/Chapters/Monographs further Regulation of Religious The Queenstown branch office was Book Organisations in South Africa” (2019) 30 closed at the end of 2018 after we were Van Coller, EH. Regulating Religion: Stellenbosch Law Review 299-313. unable to appoint a principal attorney with State Governance of Religious Van Coller EH. “Laat die Klokke Lui…! Is the funds available. This was a lengthy Institutions in South Africa, (2019) die Lui van Klokke ‘n Geraasoorlas of and arduous logistical process, London: Routledge, Taylor & Francis Bloot die Billike Uiting van conducted with a concerted effort to Group. Geloofsoortuigings?” (2018) 15 LitNet minimise negative impact on staff, clients Akademies 769-787. and paralegals. The office operated Book chapters successfully for 15 years and played an Campbell, J. (2019). “Decolonising Research Papers Presented at important role in broadening access to Clinical Legal Education” In: Tshivhase, Academic/Scientific Conferences justice. Mpedi, Reddi (eds) Decolonisation and Akinloye, I “Human flourishing, church Africanisation of Legal Education in leadership and legal disputes in Nigerian Ms Sipe Mguga left the Law Clinic to join South Africa. Cape Town: Juta Law. churches” 7th African Consortium for Law the Legal Resources Centre (LRC) as an Van Coller, EH. (2019). “Ritual Slaughter and Religion Studies (ACLARS) attorney in January 2019. On her and Religious Freedom: The impact on conference in Gaborone, Botswana from departure, Mr Lutho Jolobe (from the the Flourishing of Religious Communities 19 to 21 May 2019. Mr Akinloye wrote on. LRC) assisted for a few months until he in South Africa” in M Christian Green (ed) Bergover, S. “Courts Discretion in joined the Constitutional Court as a clerk Law, Religion and Human Flourishing in Relation to costs in Public Interest in June 2019. Ms Sizi Yuze commenced Africa 345-362. SUN media, Litigation.” Public Interest Litigation in working in that position in July 2019. Ms Stellenbosch South Africa. Australia - A Comparative Perspective. Siya Makunga BA LLB (Rhodes) and Ms Van Coller, EH. (2019). “Administrative La Trobe University, Melbourne, Nkuli Mnyani LLB (UWC) joined the Clinic Law” in L Meintjes-van der Walt (ed) Australia. August 2019. as candidate attorneys in July this year. Introduction to South African Law 3rd Glover, G. “Cancellation, repentance Several clinic staff received Rhodes edition (2019) Pearson Education South and the doctrine of election in South University long service awards this year: Africa, Cape Town. African contract law”. Acta Juridica Ms Zuki Goyana and Ms Jeni Hughes (15 conference “Private law in a changing years) and Prof Campbell (25 years).

6 FACULTY REPORT world” University of Cape Town. October conference hosted by the University of Visiting Professor Clive Plasket delivered 2018. Venda in July 2019. a public lecture in October 2018 entitled Glover, G. “Can you believe a dustbin? “Procedural fairness, executive decision- some dilemmas with the test for making and the rule of law” and followed fraudulent misrepresentation”. Private this up with another lecture entitled Law and Social Justice Conference, “Planting Seeds for the Future: Nelson Mandela University, Port Dissenting Judgments and the Bridge Elizabeth. August 2019. from the Past to the Present” on 8 Juma, L. “Transnational character of October 2019. PMSCs operating in Africa.” Workshop on Sharing Good Practices between The Faculty is pleased to announce that Private Security Regulators in the SADC Cachalia JA has accepted the Faculty’s Region. PSIRA, Pretoria. June 2019. request that he become a visiting Kruuse, H. Panel discussion with Prof professor at the Faculty. His appointment

Sonnekus and Prof Bonthuys “W v H has received Senate approval, while 2017 (1) SA 196 (WCC) & ST v CT [2018] Mr Idowu Akinloye and Prof EH van Council approval is awaited. Cachalia JA ZASCA 73” Family Law Teachers’ Coller will bring a wealth of experience to the Colloquium, Nelson Mandela University, Faculty, both in the field of practice (as an Port Elizabeth. September 2018. Faculty events anti-apartheid activist) and in the field of Kruuse, H. “The role of the legal The Faculty hosted several successful adjudication (in his positions as judge of practitioner in South Africa’s events over the past academic year. the High Court, then the Supreme Court transformative constitutional democracy: of Appeal, and also as an Acting Justice Reconceptualising the contract of Faculty opening in the Constitutional Court). mandate through Ubuntu.” International Constitutional Court Judge Mbuyiseli Legal Ethics Conference VIII, University Madlanga honoured his alma mater with The Law Faculty hosted alumni from of Melbourne, Melbourne. December an inspired speech at the Faculty Webber Wentzel in the Legal Skills 2018. Opening on 22 February 2019. course. Mr Tyron Theesen and Mr Monde Kruuse, H. “Acting radically but ethically: Reflecting on his own experience and Coto spoke to students about Refusing to raise a prescription defence prospects for legal practitioners under multijurisdictional practice and in public and private law matters” Private the Legal Practice Act. Importantly, globalisation in the legal environment. Law and Social Justice Conference. Judge Madlanga encouraged students to Nelson Mandela University, Port be honest and ethical in their future The Law Faculty also hosted colleagues Elizabeth. August 2019. practice. “A lawyer must never be the from the University of Fort Hare. Ms Rahim, S. “The Realization of the United source of his client’s lies.” Bronwyn Batchelor and Prof van Coller National Development Goals with in the spoke to the Law of Life Partnerships International Trade Law framework.” Visiting lecturers class about issues arising in ante-nuptial Sweden University Forum (SASUF). Visiting professor Nambitha Dambuza JA contracts. Stellenbosch University, Stellenbosch. and visiting fellow Mr Max Boqwana gave May 2019. riveting public lectures in the Faculty of Conclusion and prospects Van Coller, EH. “Church Bells: A Noise Law in 2019. In her public lecture, The past academic year has been Nuisance or the Legitimate Exercise of a “Customary Law in South Africa – eventful and fruitful. Staff and students Religious Conviction?” 7th ACLARS Shunned?”, Visiting Professor Dambuza benefited from many opportunities to (African Consortium for Law and Religion discussed some of the criticism levelled learn and so to make a meaningful Studies) Conference: ‘Law, Religion and against the courts in relation to their contribution to society. the Environment in Africa, Gaborone, application of customary law. In doing so, Botswana. May 2019. she considered the development of R Krüger customary law by the courts over the last 4 October 2019 Other involvement two and half decades and the impact Besides conference participation, staff thereof on South African society. also engaged in a number of other research and teaching related activities : In Mr Max Boqwana’s public lecture, Bergover, S attended a seminar about “Ethics in the Legal Profession?”, he Legal Costs hosted by LEAD. Midrand, considered how lawyers and auditors February 2019. have helped facilitate some of this Mashinini, N went on a research visit to country’s biggest corporate scandals and the University of Missouri, Columbia from grand-scale state corruption in recent 7 to 17 June 2019, where she established times. As a result, Mr Boqwana offered new research networks and received some thoughts on how law students doctoral research support. should seek to return to the ideals of Mashinini, N accompanied two students honour, diligence, fairness and justice in to present papers at a SALDA their future practice.

7 SOCIETY REPORTS

RHODES UNIVERSITY LAW SOCIETY REPORT 2019

SIBUSISO NGWILA CHAIRPERSON

The 2019 academic year has been one good number of prospective employers gracious enough to sponsor our Annual which has seen the Rhodes University come to Grahamstown to present General Meeting (AGM) at Saints Bistro. Law Society, “Law Soc”, grow from themselves and the opportunities they It is at this event that the new committee strength to strength amid various can offer to our students. I am grateful to for 2020 was elected. I would like to thank challenges which are typical of a dynamic every firm that came and interacted with not only ENS for their sponsorship, but all and constantly changing student culture the students. In particular, I would like to those who attended to cast their votes in our Law Faculty to which Law Soc has extend my appreciation to ENS Africa and partook in the democratic process. to adapt. As my final act as President of and Bowmans, who sponsored the event Law Soc, I write this report to account for and contributed towards making the The final major function for the year was what the society has achieved this year. event a success. the annual Law Ball, which was kindly sponsored by the Professional Provident Subscription In the second term, we hosted our annual Society (PPS). The Ball took place at the “Meet and Greet” at the Rhodes Sports Wyvern at Kingswood College. This was This year’s subscription drive to Bar. This was a success and was well a fantastic way to thank everyone for their encourage law students to sign up for the attended by students across all years of contributions to the faculty, bid farewell to society was very successful. This year study in law. Our aim for this event is for leaving students and staff, and celebrate saw one of the highest subscriptions of law students to come together in a social the end of a very successful year. approximately 430 students of these setting and get to build connections with registered to study law. Law Soc students they would not otherwise have As always, the Society also made sure participated in the SRC-organised met in order to foster an environment that our members went into their exams societies extravaganza and sign-ups which is conducive to building good with a little pick-me-up, this year in the evening, which was helpful in signing up friendships amongst law students which form of cappuccino vouchers from almost half of our current membership. transcend the university space. Handmade Coffees. The remaining half was recruited by means of class visits by our committee Our Moot Club, headed by our Moot Club Community engagement members and at the annual Market Day. Chair, Tshwanelo Mabelane, has proven Community engagement is always to be an important initiative which adds to Events important, and when the year flies by as the value of a Law Soc membership. quickly as it inevitably does, it is very Our first task when we assumed our Sessions have been run for most easy to let this become an afterthought. I positions as the 2018/2019 committee at Saturdays of the academic year which am, however, proud to report that the the end of last year was to organise the culminated in a Law Soc Moot Club Rhodes Law Society has once again Law Faculty’s annual Market Day, which Competition which ran in the second stepped up to the plate, despite our took place on Friday 1st March 2019. semester. I would like to commend extensive mandate. I am thankful to Much like previous years, the Tshwanelo for running the Moot Club so Ashley Bristow, the Social Awareness organisation of Market Day was a efficiently this year. Officer, for overseeing our Book Drive challenging exercise which occupied I would also like to thank our Public initiative, and coordinating for the books’ most of our first few months in office. Relations Officer, Kristy Bassingth- delivery to Duna Library in the Joza Despite all of the challenges that were waighte, for spearheading our annual location. part of planning the event, I am pleased hoodie initiative. Thanks to Kristy’s Thank you and farewells to report that this year’s Market Day was efforts, we have had one of the most a resounding success. successful years in terms of hoodie All in all, this has been an extremely busy One of the key roles of all members of the organisation as we were able to roll the year, but one that has turned out very committee is to ensure that they build final products out at the start of third term. successfully. It might not have done so, however, if not for the efforts of those solid connections with contacts from I would also like to thank ENS Africa for various firms, businesses and institutions who have worked tirelessly to keep the their generous subsidy that helped us to ship afloat and on course. First, I would in order to convince them to come to our keep the hoodie prices low and Market Day each year and to consider like to thank Jeremy de Beer, the Vice- affordable for our students. At the start President of the Law Society for 2019. I our students for employment. This year, of fourth term, ENS Africa was also the committee did just that, and we had a am not sure how I would have led the

8 SOCIETY REPORTS

society without your guidance and Clarize Coertze and Gisele Mans must From my side, I can say that both the patience. My gratitude to you knows no be commended for their hard work this Society and me are extremely lucky to bounds. I would also like to thank Ayanda year in ensuring the successful have worked with such a phenomenal Dube, the Treasurer, for managing our publication of In Camera, I know group of people. finances with such dedication and always personally how challenging this job can making sure that the society makes be and I cannot appreciate your efforts Final thanks must also be made to the sound decisions in terms of running our more. I would also like to thank Ashley Law Society’s mentor, Adv Renaud, for events. Keanen-Troy Johnson has been Bristow for running our social awareness his cool guidance in times of stress. a stellar Secretary who have assisted project successfully this year. To Kristy greatly in ensuring the smooth running of Bassingthwaighte, the guardian of the the Society. Your efforts have not gone Law Soc Brand, thank you for being so unseen. Thanks must also go to unbelievably efficient at anything and Tshwanelo Mabelane, for your everything you set your mind to. Our successful running of the Moot Club this online presence could not have been year. more stable.

BLACK LAWYERS ASSOCIATION

STUDENT CHAPTER REPORT 2019

MANQOBA N GASA

CHAIRPERSON

Meet And Greet: Garden Picnic Party create awareness about the various On 27 April 2018, the BLAsc organised a Among the guests we were graced by a fields in which an LLB degree can apply. meet and greet. We chose to switch few of the members of the Faculty of Law: Breaking the Mould was aimed at things up and move away from the Prof. Rosaan Krüger (Dean of the exposing people to the fact that the conventional annual Champagne faculty), Ms. Nomalanga Mashinini ordinary legal practice route is not for Breakfast. This year we chose to make (lecturer), and Mr Phumele Jabavu everyone and that there are many the event a Picnic Garden Party Meet (Lecturer) employment options available to LLB and Greet which was more interactive, As the branch’s leadership we were graduates. The event was a great and less formal. We wanted it to be a happy with the number of people who success. As the leadership, we could see platform for the members to interact with attended. We were happy the event was that this was an event that was valuable, the committee as well as the faculty staff. a success and that it was well-received. especially for the students in the final- This event was a semi-formal event The turnout gave foresight into the year LLB. where the BLAsc members were attendance we could expect in the future The speakers we had were individuals entertained and addressed by the events we intended to host. committee at large. who did not use their LLB degrees in a Alternative Careers Talk: Breaking “conventional way”. The guest list The branch leadership further took this The Mould composed of the following people: Ms event as an opportunity to introduce its Zakeera Docrat (a forensic linguist in the leadership formally to the newly signed On 16th of May 2019, we hosted our School of Languages), Mr Phumelele up members and particularly the first- second big event. This event was a Jabavu (a former journalism lecturer & a year entering students who were not part Career Talk titled Breaking The Mould. lecturer in the Faculty of Law), and Mr of the AGM of the previous year where As the leadership, we deemed it Thoko Sipungu (a lecturer at the the current leadership was elected. The necessary for this event to take place Sociology department). We also heard members were entertained by the because a lot of focus has been placed from Ms Masi Buso, a counselling University’s Marimba band and poetry by on completing pupillage or articles after psychologist and career advisor in the Thulani, an amazing wordsmith who obtaining an LLB degree, but little Rhodes University Career Centre. encourages student with his powerful knowledge exist regarding the alternative poems. The event was also open to non- career paths one may take using the Conversations with Prof Thuli members for a fee of R25.00. Among the LLB, is known. This event was aimed at Madonsela and two student guests we were graced by a few of the educating students about the flexibility of respondents members of the Faculty of Law: Prof. the LLB degree. Rosaan Krüger (Dean of the faculty), Ms. On 6 September 2019, the BLACsc Nomalanga Mashinini (lecturer), and Mr Hence, the aim of the Alternative Careers hosted former public protector, Prof Thuli Phumele Jabavu (Lecturer) Forum, Breaking the Mould, was to

9 SOCIETY REPORTS

Madonsela to its first annual colloquium public should engage with law and (grade 7-11). The event took place in the entitled “Conversations with Prof Thuli policies that affect their daily lives. Oppidan Dining Hall when the schools Madonsela and two student Moreover, this event furthered the values came to Rhodes University as part of the respondents”. Professor Madonsela, and ethos of the Black Lawyers Community Engagement yearly activity. together with the two student Association, which are democracy, rule We engaged them about how CVs are respondents (Ms Sharon Shambaza of law, transparency and freedom. We drafted, how to apply for university. The (LLB penultimate) and Mr Mojalefa are indebted to the Professor Madonsela event was a success, and we planning on Motsepe (LLB final year) engaged in a for gracing us with her presence, her carrying it in the future, but with a bit of panel discussion on the theme: fellow panellists, the chair, the Faculty of independence and a bigger magnitude. “Reflections on Political Party Funding”. Law for the unwavering support, and to The chair was Mr Thapelo Tselapedi, a our loyal members for attending. AGM lecturer from the Rhodes University Politics Department. Community Engagement Initiative We held our Annual General Meeting on 4 October 2019. We elected a new The conversation was informative and We partnered with the Community committee for the 2020 year. Well raised awareness on how the general Engagement office to have a CV session deserving, energetic and purpose-driven public should engage with law and for the matric pupils and other FET’s candidates were elected.

NTUTHUKO LEGAL ACTIVISM REPORT 2019 DAVE JACKSON

CHAIRPERSON

Our overall mission for 2019 was “Living cup of fresh water was given to passers- developments relating to Makhanda’s Constitutionalism”. This was a by, while we provided water saving tips. service delivery situation. community engagement project initiated by the Rhodes University Law Faculty. A number of conflict resolution Our project for second semester was The faculty had entrusted our society workshops were set up by the society, environmental awareness, which had the with running the project this year. In attended by society members. This was aim of providing insight into citizens’ response to the project, our society in preparation for a workshop we would rights to a safe and clean environment. adopted the hashtag, #protecttheinnerchild, be delivering at a local school. These We travelled to Home of Joy, a as the society’s slogan. We got the workshops involved society members community home situated in Joza. Here inspiration for this hashtag from a sitting down and discussing the issues the society was given the opportunity to meeting with lecturer Ms Brahmi around conflicts in the workspace and in give some advice to the youth who were Padayachi, who gave the communities, and the adverse considering attending university and committee members valuable insight and effects that conflict would have. Various- about to tackle their final exams. Some direction as to our vison for the year. dispute resolution techniques were wisdom was imparted on the youth, who discussed. Attendees were invited to had major decisions to make for their Our society drove two major projects for participate in a role-playing scenario, future. The final project hosted by our the year 2019. In the first semester, we where they could work with some of the society was a school painting day we held alternative-dispute and conflict- techniques that they had been shown. spent at Nokwandile Day Care Centre. resolution workshops with the committee The aim of these workshops was to Here the society member got the chance members. This related to the theme of prepare the society for a conflict to paint the centre and get creative with safe working and learning environments, resolution demonstration at a local the colours of the playground. as well as bodily integrity rights as school. guaranteed by our Constitution. The The 2019 year was a challenging year, society was planning an anti-bullying The society was invited to Rhodes Music and the society faced many obstacles. It workshop, which would be delivered to a Radio on a number of occasions to is my pleasure to report that our society, local school. This fell in line with provide comment and opinion on various led by a fantastic committee, overcame our project for the year. We had legal matters facing the community and these challenges and ultimately achieved anticipated that we would travel to a local and the country at large. Among the success in achieving our goals. schools in about mid-May. The society topics that we discussed with RMR were hosted a water awareness event at the the Zondo Commission of Inquiry into Kaif, where provided information on the State Capture, as well the recent legal current water situation in Makhanda. A

10 EXTERNAL MOOT COMPETITIONS

INTERNATIONAL CRIMINAL COURT MOOT THE HAGUE COMPETITION NETHERLANDS by Bryony Fox From the 2nd to the 8th of June 2019 five Final Year LLB students - Daniel Coetzer, Ayanda Mpofu, Bryony Fox, Clarize Coertze, and Erika Heaton - represented the Rhodes Law Faculty at the 2019 International Criminal Court (ICC) Moot Court Competition.

Held at the Hauge in The Netherlands, the ICC Moot Competition is a large-scale international moot court simulation of the proceedings in the ICC. The team participated in 6 oral rounds, in which we delivered arguments for the Office of the Prosecutor, the Defence, and Government Council acting as Amicus Curiae. The oral arguments where based on the three Written Memorials submitted in April which responded to the fictional situation in the Country of Bravos, where chemical weapons had been used by a foreign country in their territory as a “humanitarian intervention”. The focus of the discussion was on the newly defined crime of aggression, as well as procedural issues such as the use of illegally obtained evidence from domestic authorities in ICC proceedings.

During the week, the team also attended educational lectures on the “ICC in Africa” as well as the “Future of the Ad Hoc Tribunal”. Both discussions providing thought-provoking perspectives on the future of international criminal law. There were also several opportunities to socialise with the 80 different teams participating, and we made invaluable connections with law students from Brazil, Russia, Australia, Iran, Germany, Hong Kong and Georgia, to name a few. While the team did not make it to the Semi- Finals, we did receive constructive feedback from the judging panels, who commented positively on our confidence, legal knowledge and rebuttal skills. The final round of the competition was held in the ICC itself. We were afforded a rare opportunity to sit in the gallery of the court room, and to watch the proceedings occur as they would for an actual trial. The final round was heard by current Judge of the ICC, Geoffrey A Henderson, whom we got to interact with personally after the trial.

The experience was incredibly valuable and we are grateful to have been afforded the opportunity to participate in this event. We would like to extend our gratitude to the Law Faculty and its staff as well as the library staff for their support and assistance in making it possible for us compete. And a special thank you to Juta for their financial contribution.

JOHN H. JACKSON MOOT COURT

COMPETITION NAIROBI KENYA by Jeremy de Beer In April this year, final year students Stuart Bentley, Jeremy de Beer, Rhulani Matsimbi and Ryan Birkner attended the African Regional Round of the John H Jackson international trade law moot (previously called the ELSA moot) in Nairobi, Kenya. The moot problem concerned a dispute about a rare metal that could be used as a source of renewable energy, and implicated various World Trade Organization (WTO) principles and agreements. Ryan took on the role of team co-ordinator and researcher, and the speaking time was allocated between the other 3 group members, who were each required to address a specific aspect of the question. Stuart dealt with the most favoured nation and national treatment principles; two cornerstones of WTO law. Jeremy dealt with the exceptions and customs unions under the General Agreement on Trade and Tariffs (GATT), and Rhulani dealt with the issue of prohibited subsidies under the Agreement on Subsidies and Countervailing Measures.

The competition entailed submitting detailed heads of argument and two oral rounds. In the first round, the Rhodes team acted for the respondent state, and for the complainant state in the second round. Each round was judged by three panelists, each of whom was an international trade law expert. Our team was fortunate enough to be judged by the head delegate from the WTO itself, Tamal Mandal, who offered many insights and congratulated us on an exemplary performance. The competition was a chance for Rhodes to show its strengths on an international playing field and in an extremely technical area of law, against fierce competition from other African universities. The complexity of the problem was unlike any other external moot that Rhodes has ever participated in, and required extensive research and unwavering commitment from everyone involved.

Although the Rhodes team did not progress to the final round in Geneva, we are proud to have made a lasting impression and formed many connections with both delegates and participants, and ultimately left the competition having showcased once again that a small- town university can compete against much bigger universities, many of whom sent Masters students specialising in international trade law. Lastly, the team would like to extend a special thanks to our coach, Adv. Shuaib Rahim, whose guidance and assistance was invaluable. 11 JEAN-PICTET INTERNATIONAL OBERNAI HUMANITARIAN LAW COMPETITION FRANCE by Andile Msane The Jean-Pictet International Humanitarian Law Competition is one the most prestigious International Law competitions. The teams from all over the world participate in simulations and role plays built around a fictitious armed conflict. Teams play the role of legal advisors of States and paramilitary armed groups; diplomats; delegates of the International Committee of the Red Cross etc.

With the motto of “Taking the Law Out of the Books”, the Jean-Pictet Competition aims to equip students with practical skills and knowledge of the principles and values of IHL. This competition is sui generis in that, unlike other law competitions based on simulations and role play, there are no memorials or head of arguments to be submitted, and perhaps the biggest difference is that there are no prepared arguments before hand. The scenarios are ever changing and the legal situation on which it is based, are constantly developing. This competition tests the participants knowledge on IHL and the ability to think on their feet and adapt as the situations change. Every year the competition receives support from many donors, including: The International Committee of the Red Cross (Geneva); the Jean-Pictet Fund (Geneva); the Federal Department of Foreign Affairs (FDFA) of Switzerland (Bern) and others.

During the competition the team, along with the authoritative International Jury, was involved in the discussion on emerging issues of the IHL as well as other branches of Public International Law. Issues discussed during the Competition included: Legality of Autonomous Weapons under the IHL; Means and Methods of Warfare; The International Criminal Responsibility of Child Soldiers; Terrorism; and Forced Displacement. The competition started with a text from the decision by the Appeal Court of Payenha, a fictitious country, regarding the extradition of King Zmaruli, the former Head of State of the neighbouring country, named Tekker in the Fertiwan Region. The Supreme Court of Payenha confirmed that King Zmaruli was not to be extradited. This led to troubles and a civil war in Tekker, and the invasion of the latter by Cēthun. The situation in Fertiwan was evolving every day as the tensions between the neighbouring countries intensified. There was naval warfare in the form of a international armed conflict. There was a field test taking place outside the building where we were playing the role of representatives from the ICRC and two Red Cross- National Societies. The situation kept getting more dire as the days went by and we had to adapt quickly to the changing circumstances and the ever-changing roles we had to play in the simulation. Each day the teams received updates and were required to assume different roles of role players in IHL and were required to demonstrate their skills on the applicable law and also to be able to give legal advice to various stakeholders regarding the acceptable standards in carrying out war.

We would like to extend our gratitude to the law faculty for their support, and a special thank you to the Pretoria delegation of the International Committee of the Red Cross for sponsoring our team.

AFRICAN HUMAN RIGHTS MOOT GABORONE COMPETITION BOTSWANA by Jethro Weeks The African Human Rights Moot Competition was an indaba of law students from all corners of Africa. This annual event brings together law faculties in Africa, and provides students with the opportunity to argue a hypothetical human rights case as if they were before the African Court on Human and Peoples’ Rights. Participants were given a hypothetical case that brought attention to several human rights issues that are particularly pertinent to the African context. These included issues concerning enforced disappearances, refugee rights, LGBTQ rights, and children's rights. The hypothetical case emphasized the role of the African Court on Human and Peoples' Rights in resolving such disputes where a state is accused of infringing these rights.

Participants were required to argue as both applicant and respondent, which made it a necessity to assess the arguments from both sides of the fence. Judges gave us feedback after each round, which assisted us in learning from our mistakes and in refining our arguments. We learnt a great deal from the opportunity to practice our oratory skills and the art of persuasive speech. The competition was also an opportunity to meet like-minded people from across Africa, and it offered us a taste of life and culture in Botswana. Overall the experience was invaluable, and one that will leave us with a lasting impression and a positive outlook on the future of human rights law in Africa.

We would like to extend our gratitude to the law faculty for their support and especially Mr Mzolo, who accompanied us to the competition.

12 LEGAL EDUCATION

BREAKING THE LANGUAGE BARRIER IN LEGAL EDUCATION: A METHOD FOR AFRICANISING LEGAL

EDUCATION

Thokozani Dladla Final Year LLB student

Section 6(1) of the Constitution Act of 19794 and the Admission of been easily justified by section 3(2) of the recognises eleven official languages – a Advocates Act of 1979.5 These statutes, Interim Constitution which required the move from the previous discriminatory in conforming to the official languages at state to elevate the status of historically regime of the recognition of only English the time of enactment, prescribed that diminished languages – African and Afrikaans as official languages. English and Afrikaans – in addition to languages. Section 6(2) in turn imposes positive Latin – at university level were obligations on the state to take practical requirements for admission to the Side The current legal position and positive measures to elevate the Bar and Bar (as they were referred to at The language requirements for one to be status and advance the use of historically the time). admitted to the legal profession have not diminished languages. In the Admission of Advocates changed despite the onset of 8 This paper argues that the state has Amendment Act of 19946 the Latin democracy. One would reasonably 9 failed to take the adequate measures requirement was removed. However the believe that the Legal Practice Act, envisaged in s 6(2) in the context of legal English and Afrikaans requirements which has repealed both the Attorneys’ education. The argument is based on the remained unchanged. At the outset, Act and the Admission of Advocates Act fact that there has not been any inclusion cognisance must be taken of the dates in part, would have included a of indigenous languages as compulsory when these Act were enacted, namely substantive language requirement for courses as part of the transformational 1979 and 1994. Both dates are of aspirant legal practitioners; for example, measures of legal education, particularly significant. The year 1979 represents the a requirement that prospective legal in the Bachelor of Laws (LLB) curriculum. Apartheid legislative position, reflecting practitioners be competent in at least one the official languages at the time, namely African language in order to be 10 Historical background English and Afrikaans. Then 1994 is the admitted. The Act includes no such provision. The South Africa Act1 recognised English year in which the Interim Constitution had and Dutch as the official languages of the come into force. However, without being too optimistic, I country. The definition of Dutch was I believe that the legislature missed a believe that such a move could contribute extended to include Afrikaans in the golden opportunity in 1994 when it failed to the transformation of legal education. 2 Union Act. In 1927, the recognition of to include African language requirement In one way or another, the LLB curriculum Dutch fell away, and Afrikaans and in the Amendment Act of 1994 based on should be changed to include African English were recognised as the only section 3 of the Interim Constitution.7 If languages as part of its curriculum, with official languages. This position remained the legislature had amended the an ultimate goal of teaching LLB 3 in place throughout the apartheid era. Admission of Advocates Act to require curriculum in an African language. The LLB curriculum as it is, perpetuates a The English and Afrikaans language prospective advocates to be competent in at least one African language in order to form of unfair discrimination based on a requirements were legislated for listed ground,11 namely language, attorneys and advocates in the Attorneys be admitted, this decision would have

1 Act of 1909. 8 With regard to the Attorneys Amendment Act nothing about linguistic requirements as part of 2 Act 8 of 1925. of 1993, particularly; sections 2 to 24 which is the transformational goals. 3 Section 89(1) of the Constitution Act 110 of concerned with the qualifications, admissions 11 s 9(3) of the Constitution of the Republic of 1983 entrenched the position of English and and removal from the roll. It is apparent from South Africa, 1996. Section 9 of the Afrikaans as official languages. This Act was these provisions that being competent at least Constitution reads as follows; later repealed by the Interim Constitution of the one African language is not a requirement for … Republic of South Africa, 1993. admission to the roll. (3) The state may not unfairly discriminate 4 Act 53 of 1979. 9 Act 28 of 2014. directly or indirectly against anyone on one or 5 Act 74 of 1979. 10 S 3(a) of the Legal Practice Act 28 of 2014, more grounds, including race, gender, sex, 6 Act 55 of 1994. which sets out the transformation process as pregnancy, marital status, ethnic or social 7 This is now section 6 of the Final Constitution well as the constitutional framework which the origin, colour, sexual orientation, age, of the Republic of South Africa, 1996. Legal Practice Act seeks to embrace, says disability, religion, conscience, belief, culture, language and birth. 13 LEGAL EDUCATION towards LLB students who might find it in the Constitution is reasonableness, which (a) On the day that this matter came their best interest to be taught in an of necessity involves a consideration of before Court, we had a shortage of African language as in light of in s 29(2) constitutional norms, including equity, interpreters. The matter would of of the Constitution. redress, desegregation and non- necessity have to be postponed because racialism.19 In a nutshell, the court held of this. This would have caused the It therefore makes sense to conclude that that what is required of a decision-maker, complainant in the matter further if students find it to be in their best interest when there is a change in circumstances, hardship.”22 to be taught in one of the official African is to demonstrate that it has good reason languages, and it is reasonably practical to change the policy. In other words, it According to the Senior Magistrate’s 12 to do so, and the institutions of Higher must act rationally and not arbitrarily. reasons, the fact that IsiXhosa was one Education and Training passes a policy of the eleven official languages and the that goes against their right,13 such In my opinion the same reasoning judgment thus complied with section 6(1), government action contradicts the advanced by the court in Afriforum can (2) & (4) of the Constitution.23 Tshabalala Constitution and the Promotion of succeed if used to argue that the LLB J found the Senior Magistrate’s reasons Equality and Prevention of Unfair curriculum, as it stands, unfairly to be fair and reasonable in the Discrimination Act (PEPUDA).14 discriminates and undermines the circumstances.24 Although he did not Constitution, particularly s 6(2) of the expressly make this point in the The above reasoning was found to be Constitution. In the same breath, I want to judgment, it appears that Tshabalala J correct in the University of the Free State make it clear that I am not arguing that would support the idea that Legal 15 (UFS) v Afriforum. The legal dispute in English should be done away with as a Practice Act should be amended so as to this case concerned a decision by the language of teaching and learning. The require legal professionals to undergo University of the Free State to adopt a argument is not about English - it is about vocation-specific language training,25 or new language policy, which replaced elevating the status of the African deal with the root of the problem by Afrikaans and English as parallel languages to assume their rightful place developing the LLB curriculum to include mediums of instruction with English as alongside English in the legal system, at least one African language as a the primary medium. Afriforum argued especially in legal education. compulsory course, as a build up to the that the new language policy, which ultimate goal of providing an option to prefers English over Afrikaans, would The benefits of equipping law students offer the entire LLB curriculum in a erode the position of Afrikaans as a with African languages are highlighted historically diminished language. language of instruction, and its below with the use of South African case constitutionally protected status as an law. Hence, it is proposed that each law official language.16 school should choose an African 20 In S v Matomela, the court a quo heard language that is predominantly spoken in The respondent argued further that the the entire case in isiXhosa. On automatic their geographical area and partner with UFS policy violated s 29(2) of the review Tshabalala J, as he was then, schools of languages to translate sources Constitution, which affords the right to enquired from the Magistrate who of law to that African language.26 For education in a language of choice where presided over the trial as follows: English first-language speakers, this this is reasonably practicable. Using the arrangement will strengthen their Head of Department, Mpumalanga “Why was the evidence, conviction and sentence in the Xhosa language? Is this understanding of the sociological context Department of Education v Hoërskool in which the law operates. For African 17 in terms of an instruction from the Ermelo judgment, the respondent first-language speakers, this will assist argued that UFS did not use the Department of Justice? Full reasons are required.”21 them in understanding legal concepts appropriate assessment to determine better. For these propositions to be whether the attainment of the right to The Senior Magistrate’s response to the realized, a buy in from both the legal receive an education in a language of query was system, universities, the executive and 18 choice was reasonably practicable. the legislature is needed. The “The fact that the evidence was recorded Department of Higher Education and The court ruled in Afriforum’s favour. In its in Xhosa, is not in terms of an instruction judgement it held that the legal standard Training may have to amend its language from the Department of Justice, but due policy. It is unfortunate that the 2017 to determine the language of teaching to the following reasons: and learning in the context of s 29(2) of Revised Language Policy for Higher Education is too broad in that it does not

(b) practicability; and (c) the need to redress 22 At 341 -342. 12 s 29(2) of the Constitution, which reads; (2) the results of past racially discriminatory laws 23 At 692. Everyone has the right to receive education and practices. 24 At 341. in the official language or languages of 13 Ibid. 25 At 342. their choice in public educational 14 Section 1, definition of “prohibited ground 26 In Z Docrat The role of African Languages in institutions where that education is includes language” of Act 4 of 2000. the South African Legal System (MA, Rhodes reasonably practicable. In order to ensure 15 (1027/2016) [2017] ZASCA 32 (28 March University, 2017) (Interview Appendix D, 2017) the effective access to, and implementation 2017). asked which African languages legal of, this right, the state must consider all 16 Para 2. practitioners would have to learn given that reasonable educational alternatives, 17 [2009] ZACC 40; 2010 (2) SA 415 (CC). there are nine? In this paper, particularly the including single medium institutions, 18 para 52. paragraph referenced here I provide an taking into account— (a) equity; 19 Afriforum para 26. answer to the former Judge President Mpati 20 S v Matomela 1998 (3) BCLR (CK). question. 21 At 340. 14 LEGAL EDUCATION address the linguistic transformation in the case in IsiZulu.32 But such challenges Africa. Instead, it gives effect to section 6 areas such as legal education.27 As such, may be easily be dealt with if LLB of the Constitution.36 the state continues to fail tertiary students students may only graduate after being by continuing to promote and develop certified as fully hear competent in at CONCLUSION English at the expense of African least one African language. Despite the transition from the Apartheid languages. If so, a substantial number of graduates regime to democracy, the legal The case of Mthethwa v De Bruy28 will eventually be admitted to practice and framework still perpetuates Apartheid-era illustrates the benefits of having all legal they will be able to conduct cases in thinking to a large extent. This is because practitioners and judicial officers African languages. In the long run, the of the lack of linguistic transformation in competent in an African language that is same practitioners will be appointed as South African legal education. What is dominant in the geographical area they members of the Judiciary and they will be needed includes, but not limited to, serve. The facts of Mthethwa can be able to hear cases conducted in African amending legislative and policy briefly set out as follows: an isiZulu- languages. So, there are clear short- and frameworks, as well as the curriculum, to speaking accused was charged with theft long-term benefits for making African include African languages. of a motor vehicle in Vryheid. The languages compulsory in the LLB Ultimately, what is required is for accused applied through his attorney for curriculum. universities to ensure that only his trial to be conducted in isiZulu, his 33 linguistically competent students home language as well as one of the The case of S v Damoyi was heard by way of an automatic review in terms of graduate with LLB degrees. The central official languages, as per section 6(1) of recommendation made in this paper is the Constitution.29 The application was section 302(1)(a) of the Criminal 34 not new. In March 2017, Dr Mathole dismissed, and it was ordered that the Procedure Act. The facts of the case are similar to these in Matomela Motshekga raised a similar proposal in case be heard in English and/or the Parliamentary Oversight Committee Afrikaans, the official languages of record discussed above. In this case too, the proceedings were recorded in isiXhosa.35 for Justice and Correctional Services. He at that time. On review the applicant proposed that all LLB students first pass argued that the failure to be tried in an The magistrate detailed the reasons why the record appeared in isiXhosa. The one of the indigenous languages before official language of his choice, isiZulu, being awarded a law degree. He 30 Magistrate’s reasoning draws a bright was both unlawful and unconstitutional. succinctly said: The accused argued further that an order picture of the linguistically diverse and be granted for him to be tried in a effective South African legal system that “Law is not just mastery of rules, it has to language of his choice, namely isiZulu.31 we aspire to, that is, hearing cases do with people. If you don’t understand without undue delay, ensuring a fair trial society and how it functions, then how do Although Mthethwa judgment does not to the accused and the state, and having we extend rights to people?”37 explicitly state the reason for dismissing prosecutors and magistrates proficient in the application, Docrat opines that this an African language regularly used where may have been because the court they practice and preside. This thought that there were no presiding arrangement does not favour any officers who were competent in IsiZulu to particular linguistic community in South

27 The Department of Higher Education and 30 At 337. which the complainant wanted to have his trial Training “The Revised Language Policy for 31 At 338. conducted. Higher Education (2017)” 32 See Docrat The Role of African Languages 33 2004 (1) SACR 121 (C). http://www.dhet.gov.za/Policy%20and%20De in The South African Legal System. In the 34 Act 51 of 1977. velopment%20Support/Government%20Notic Mthethwa case, the judge gave a clear picture 35 S v Damoyi at 123. e%20Revised%20Language%20Policy%20fo of the linguistic make-up of the judiciary in the 36 S v Damoyi at 123. r%20Higher%20Education.pdf. Accessed: 10 Natal Division of the High Court. In 1998, when 37 B. Ndenze “No law degree without fluency in July 2019. the judgment was rendered, there was only indigenous language proposed” The Herald at 28 1998 (3) BCLR 336 (N). one judge of the twenty-two in the division who 4. 29 At 336 – 337. was able to speak isiZulu, the language in 15 PUBLIC INTERNATIONAL

SOUTH AFRICA’S WHITE PAPER ON INTERNATIONAL MIGRATION: A REGRESSION IN POLICY

Tonthozo Saukila Penultimate-Year LLB Student

Various regional conflicts and economic with refugee status to assimilate.5 without partaking in wage earning activity, crises have caused a large influx of However, this change wants to de-link they will be allowed to do so.10 refugee migration to South Africa in search permanent residency from refugee status Furthermore, asylum seekers will not of greener pastures.1 This has burdened and also de-link this from allowing a automatically be allowed to work or study the system and made it difficult to discern refugee to naturalise.6 until their refugee status has been which seekers are legitimate and which confirmed.11 The effect of this is that the are not, leading to a large number of Article 34 of the United Nations refugee is completely dependent on the deportations in recent years.2 In response Convention relating to Refugees (The person or organization which is effectively to this, the 2017 White Paper on Refugee Convention) obliges the host sponsoring them, such that they will be International Migration was published with State to do everything in their power to destitute should they withdraw their the aim of introducing changes regarding facilitate the assimilation process for support before the refugee’s status has refugee management in South Africa. This refugees in their country.7 Furthermore, been confirmed.12 essay will discuss whether or not these the host State is obliged to accelerate the changes conform to the standards in the process of naturalization and make it as This is in contravention of The Refugee international instruments to which South cheap as possible.8 It is submitted that the Convention, which obliges a signatory Africa is a signatory. Further, it will proposal in the White Paper is in direct State to treat refugees in the same manner consider whether the changes address the contravention of this because by de-linking that they do citizens, with regard to disputes in domestic courts, and whether the permanent residency from the allowing them to participate in wage- the changes proposed in the White Paper naturalization process, South Africa is earning activities.13 The right of a refugee must improve refugee protection in South adding another bureaucratic process to work was confirmed in Minister of Home Africa. which will delay the assimilation of the Affairs v Watchenuka,14 where it was held refugee into South Africa, while increasing that there was no reason for there to be a Change of residence status by refugees costs. prohibition on a refugee’s right to work,15 Due to the fact that refugees can only have this would be especially because the one residence status at a time, South Removal of the automatic right to work prohibition was an affront to their right to Africa provides refugee status on a and study for asylum seekers dignity.16 Additionally, Somali Association temporary basis,3 which will be reviewed at The proposed change states that while the of South Africa v Limpopo Department of various stages should the refugee’s stay refugee is awaiting the outcome of their Economic Development, Environment and become prolonged.4 In addition to this, the status, their basic needs will be catered for Tourism held that asylum seekers are White Paper intends to phase out the by an individual or an organization which allowed to be employed and conduct Permanent Residence Permit (PRP) and has taken the responsibility of doing so, businesses in this country.17 Therefore, in replace it with a long-term residence but the refugee will not be allowed to terms of the current regulations under the permit, which has the same weighting as a provide for themselves.9 If the refugee is Refugees Act,18 refugees are allowed seek refugee permit thereby allowing the person able to provide for their basic needs employment, in accordance with section

1 White Paper on International Migration, 2017 7 United Nations Convention on Refugees, 1967 v Limpopo Department of Economic at 5. Article 34. Development, Environment and Tourism” 2 White paper at 29. 8 UN Convention on Refugees, Article 34. (2015) 31 SAJHR 401 at 409. 3 OAU Refugee Convention, 1971, Article II para 9 White Paper at 61. 13 UN Convention on Refugees, Art 17(1). 5. 10 Ibid. 14 [2002] JOL 10388 (C). 4 White Paper at 61. 11 Ibid. 15 [2002] JOL 10388 (C) at 18. 5 Ibid. 12 J de Jager “The Right of Asylum Seekers and 16 [2002] JOL 10388 (C) at 19. 6 White Paper, at 62. Refugees in South Africa to Self-Employment: A 17 2015 (1) SA 151 (SCA) para 46. Comment on Somali Association of South Africa 18 Act 130 of 1998.

16 PUBLIC INTERNATIONAL

22 of the Constitution.19 The changes Refugee Act, whose inclusive approach However, the fact that the Centres only proposed by the White Paper would not has allowed a large number of asylum allow the refugees to leave the centres if only contravene the international seekers into South Africa, causing a threat they meet certain conditions is in instruments to which South Africa is a to national security. 25 The Centres will be contravention of right freedom of signatory, but also infringe on the used to capture information about the movement afforded by the South African Constitutional rights of the refugees who refugee and accommodate them during Constitution.31 It also contravenes the UN are meant to be treated equally as the this process.26 During this time, only the Refugee Convention, which states that the citizens of the country. refugees who are deemed “low risk” will be signatory state should allow the refugees allowed to enter or leave the processing in their country the right to move freely In addition to restricting the right of the centres under specified conditions, which within the territory.32 In addition, it is also in refugee to work, the White Paper also aims could include an assurance from a sponsor contravention of the Universal Declaration to prohibit the rights of refugees to study. that their basic needs will be provided for of Human Rights, which states that a The Refugee Convention binds signatory should they be released from the person’s rights, including freedom of countries to allow refugees to have access centres.27 movement, can only be limited if they are to basic education,20 and they must afford a legitimate threat to security.33 Thus rights due recognition to foreign certificates and These processing centres are both an cannot be limited arbitrarily. It is submitted diplomas.21 It was held in Watchenuka that improvement and a regression for the that the processing centres constitute an refugees had the right to education in management of refugees in South Africa. arbitrary limitation on the right to freedom South Africa,22 which is consistent with This is an improvement because the and are therefore untenable in this The Refugee Convention as well as the Centres will introduce efficiency into constitutional democracy, as well as when South African Refugees Act.23 By processing asylum seekers, which measured against the international prohibiting the right of the refugees to work remedies the mischief identified in Kiliko,28 instruments to which South Africa is a and study while they await their status where the Department of Home Affairs signatory.34 determination, the White Paper is was only processing 20 asylum seekers infringing on the Constitutional right to per day, resulting in people queuing The White Paper on Immigration uses the education and to freely choose their trade overnight and in some cases never gaining need uphold South Africa’s national or occupation.24 access to the office.29 This was held to be security as a disguise for introducing more inconsistent with the Constitutional rights bureaucratic processes, which make it Admission of asylum seekers and to dignity and freedom and security of the harder for refugees to assimilate. refugees persons who were seeking permits.30 Thus Therefore, the White Paper presents more The White Paper proposes the introduction the advent of the Centres will hopefully challenges than solutions, and can be said of Asylum Processing Centres (APC) to create an efficient process. to be “one step forward and ten steps remedy the current regime under the back” regarding refugee management.

19 Jager 2015 SAJHR 401. 24 The Constitution of the Republic of South 31 The Constitution, s 22. 20 UN Convention on Refugees, Art 22(1). Africa, 1996 s 27 and s 22. 32 UN Convention on Refugees, Art 26. 21 UN Convention on Refugees, Art 22(2). 25 White Paper, at 61. 33 The Universal Declaration of Human Rights, 22 [2002] JOL 10388 (C) at 7. 26 Ibid. 1948 Art 29(2). 23 Carol Anne Spreen and Salim Vally 27 Ibid. 34 G Goodw in-Gill “International Law and the “Monitoring the right to education for refugees, 28 Kiliko v Minister of Home Affairs 2006 (4) SA Detention of Refugees and Asylum Seekers” migrants and asylum seekers” (2012) 18 SARE 114 (C). (1986) 20 The International Migration Review 71 at 73. 29 2006 (4) SA 114 (C) para 27. 193 at 196. 30 2006 (4) SA 114 (C) para 27.

17 LABOUR LAW

THROUGH THE LENS OF THE INCOME TAX ACT: THE REPERCUSSIONS OF BEING CLASSIFIED AS AN EMPLOYEE WHEN INVOLVED IN ILLEGAL SiphosethuTRANSACTIONS Matebese AS ‘WORK’

Final -Year LLB student For many years in South Africa, it has The Constitution of the Republic of activities that Kylie was involved in were been difficult to ascertain whether or not South Africa (the Constitution) provides illegal in South African law.12 The someone classifies as an employee. everyone with the right to fair labour decision on appeal that was made in the Consequently, the courts have practices.6 This has been seen as the Labour Appeal Court entailed the fact that developed tests to determine who an root of each citizen’s ability to be as a sex worker, Kylie could be classified employee really is. Statutes such as the categorised as an employee under the as an employee in terms of the definition Labour Relations Act1 (LRA) and the country’s labour laws. According to of an employee in the Labour Relations Basic Conditions of Employment Act2 Muswaka,7 in every employment dispute Act, as she was seen as a beneficiary of (BCEA) define an employee as any that comes before a court, the first step the Constitutional rights encapsulated in individual, excluding an independent is to determine whether that individual is section 23, regardless of her contractor, who works for another person an employee, following which the court profession.13 However, in handing down for remuneration.3 has to assess whether that individuals this judgment the court also considered falls within the range of the applicable the remedies that could be applicable This definition has been held by courts to legislation, specifically the Labour between the parties. Kylie was awarded exclude certain individuals, the most Relations Act8 and the Basic Conditions compensation over reinstatement in significant being those who perform and of Employment Act.9 The Labour terms of the Constitution14 and not are involved in illegal activities as a Relations Act defines an employee as a section 187 of the Labour Relation Act, means of making money. The above has person who works for, or renders a under which she initially bought the been evidenced in the cases of Kylie v service to any other person, regardless action.15 The basis of this decision was 4 CCMA and MP Finance Group CC v of the form of contract that they are that the courts were trying to avoid a 5 CSARS. The pressing question that employed under.10 situation where they would be regarded arises after a reading of these two cases as endorsing the commission of illegal 11 pertains to what South Africa’s position is Kylie v CCMA: the effect of illegal activities in the law, contrary to certain in terms of taxing monies generated activities on one’s status as an legislation.16 through illegal or immoral activities. This employee article discusses the issue that has been The obligations of an employee in constructed with reference to the work of In the Kylie case, a sex worker (Kylie) had terms of South African Law authors in the topic of taxation of illegal been working at a massage parlour activities in South African law. Where where she was performing sexual favours In terms of South African law, sex work relevant, examples drawn from case law in exchange for money. When her remains criminalised. Although this is the 17 have been be used to corroborate the employment was terminated at the case, these individuals, such as Kylie, submissions made. parlour, she sought recourse from the are not excluded from being classified as CCMA, alleging that she was unfairly employees based on their constitutional A brief discussion of the definition of dismissed. The commissioner held that right to fair labour practices.18 an employee in SA labour-law the tribunal did not have jurisdiction to Consequently, the law places certain legislation hear the matter based on the fact that the obligations on employees, which include

1 Act 66 of 1995, s 213. 4 2010 (4) SA 383 (LAC). 12 Kylie v Van Zyl (2007) 28 ILJ 470 (CCMA) 2 Act 75 of 1997, s 83A. 5 2007 (5) SA 521 (SCA). 471F-G; Sexual Offences Act 23 of 1957, s 3 Labour Relations Act, s 213 reads: employee 6 The Constitution of the Republic of South 20(1A). "means – (a) any person, excluding an Africa, 1996, s 23. 13Labour Relation Act s 200A and 213; M independent contractor, who works for another 7 L Muswaka “Sex Workers and the Right to Conradie A Critical Analysis of The Right to person or for the State and who receives, or is Fair Labour Practices: Kylie v Commissioner Fair Labour Practices (LLM thesis, UFS, 2013) entitled to receive, any remuneration; and (b) for Conciliation Mediation and Arbitration” 3; Kylie v CCMA (LAC) para 10. any other person who in any manner assists in (2011) SAMLJ 533 at 534. 14 s 23. carrying on or conducting the business of an 8 Act 66 of 1995. 15 Kylie v CCMA (LAC) para 63. employer, and "employed" and "employment" 9 Act 75 of 1997. 16 Sexual Offences Act 23 of 1957. have meanings corresponding to that of 10 Labour Relations Act, S 200A. 17 Kylie v CCMA (LAC) para 39. "employee". 11 Ibid. 18 The Constitution, s 23.

18 LABOUR LAW inter alia to render services to the the monies that had been received by whether the income generated from the employer, to work diligently, to serve the Prinsloo through the scheme would be illegal sales was to be taxed. Relying on interest of the employer as well as to obey subject to taxation, although the English law, the courts held that the lawful and reasonable instructions.19 enterprise was criminal.26 illegality of a business is irrelevant when it comes to taxation of its income, and 27 The obligation to pay income tax is The significance of MP Finance Group thus, Delagoa Bay was taxed.35 encapsulate under the last requirement. is that for the first time in South Africa’s In terms of the Income Tax Act,20 income legal history, the Supreme Court of Looking back to MP Finance, in light of tax is defined as tax levied on all income Appeal heard a case that dealt with the definition of gross income, the only and profits received by a taxpayer, taxation of illegal income, setting a income that is taxable in South African including individuals, companies and precedent on this matter.28 Foreign law is that which complies with this trusts.21 In terms of South African law, all jurisdictions29 have held on this point that definition. The most important aspect of employees have to make monthly in dealing with income tax there are two the definition is the “received by” aspect contributions to income tax, whatever the important aspects. These are the Income which entails (money) being received by type of employment one is involved in. Tax Act as a whole, as well as the term a taxpayer for their own benefit according They ought to pay income tax if they are “gross income”, which definition to Geldenhuys v CIR.36 The ruling in MP an employee in terms of the Labour underpins the realisation of wealth Finance Group CC shows that illegal Relations Act, and this is where the case irrespective of its source.30 In MP dealings have many consequences, of MP Finance Group v CSARS22 Finance, these two aspects were both including fiscal consequences. The fact is becomes relevant. followed by the Supreme Court of Appeal that the owner of the scheme knew that without any deviation.31 The court held the scheme was insolvent, but they MP Finance Group (in liquidation) v that, regardless of the source of the continued using it to generate money for 23 CSARS: Illegal activities are not tax- income, if one receives it for their own their own benefit. This made funds qualify exempt in South Africa benefit and on their own behalf it will be as gross income, which is taxable in term 37 MP Finance Group v CSARS dealt with included in their gross income and will of the Income Tax Act. thus be taxable.32 how the phrases, “received by, accrued Conclusion to or in favour of” in the definition of “gross The first case in our law that dealt with income” pertained in the Income Tax whether illegal business dealings were The issue of whether money generated 24 Act should be interpreted for purposes precluded from being taxed was CIR v from illegal activities should be taxable 25 of illegally obtained monies. In this Delagoa Bay Cigarette Co Ltd,33 where has been the subject of much debate case, Prinsloo, who with the aid of her the company was selling a packet of over the years in South Africa and 38 family ran a money scheme, was arrested cigarettes for more than they were worth, abroad. It is now clear that, once the and sentenced to 25 years in prison enticing the purchasers with a coupon money generated by an individual falls following that would be inserted into the packet within the definition of ‘gross income’ as defined in the Income Tax Act,39 it is Making millions from defrauding which could lead the purchaser to 34 subject to taxation. Whether the money is “investors” of their pension funds, life winning between 2 - 200 pounds. The courts prosecuted the company on the generated from an immoral or illegal insurance money and their homes. Prior activity does not relinquish the individual to the appeal in the Supreme Court of basis of running an illegal lottery. In addition to this, the court had to decide from paying the tax that is due from them Appeal, the High Court dealt with whether to the South African Revenue Service.

19 A Govindjee and A van der Walt 26 Venter, Uys and van Dyk 2015 Southern 34 Venter, Uys and van Dyk 2015 Southern “Employment Without Rights? Discovery African Business Review 122; MP Finance African Business Review 128. Health Limited v CCMA and Kylie v CCMA” Group CC (in liquidation) v CSARS 2007 (5) 35 Venter, Uys and van Dyk 2015 Southern 2008 Obiter 542 at 549-550. SA 521 (SCA) para 1. African Business Review 128-129; CIR v 20 Act 58 of 1952, s 1. 27 2007 (5) SA 521 (SCA). Delagoa Bay Cigarette Co Ltd 13. 21 N Musviba “South African Tax Guide” (2017) 28 Venter, Uys and van Dyk 2015 Southern 36 Geldenhuys v CIR 12 SATC 419 at 33. http://www.sataxguide.co.za/sa-income-tax/ African Business Review 123-124. 37 Income Tax Act, s1; Venter, Uys and van (accessed 19 April 2019). 29 These foreign jurisdictions include Canada, Dyk 2015 Southern African Business Review 22 2007 (5) SA 521 (SCA). France and Tala Viv. 132. 23 Ibid. 30 Commissioner v Glenshaw Glass (2007) 69 38 E Muller “The taxation of illegal receipts: A 24 Act 58 of 1952, s 1. SATC 141. pyramid of problems! A discussion of ITC 1789 25 JMP Venter, WR Uys and MC van Dyk “MP 31 Venter, Uys and van Dyk 2015 Southern (Income Tax Court Natal) 2007 Obiter 163 at Finance Group CC (in liquidation) v C: SARS: African Business Review 123-124. 166. Adding to the financial hardship of victims of 32 Geldenhuys v CIR 12 SATC 419 at 33. 39 s 1. illegal transactions” (2015) Southern African 33 (1918) 32 SATC 47. Business Review 121 at 121. 19 MINIMUM SENTENCE

THE CHALLENGES FACED BY THE COURTS IN APPLYING MINIMUM SENTENCE LEGISLATION

Keegan Williamson Penultimate-Year LLB Student

In this article I shall consider potential Challenges the court faces The court stated that section 51(3)(a) guidelines to minimum sentencing, There are various challenges that arise should be interpreted as the sentences through an analysis of minimum through courts interpretation and described being the point of departure.15 sentencing and the challenges that face application of the section 51(3)(a) of the The court stated that if the imposition of trial courts faced with applying minimum Act. In S v Dodo, 9 a constitutional the prescribed sentence, taking into sentence legislation. challenge was raised against section 51 account all the circumstances, would lead of the Act, on the basis of an infringement to injustice, the court should depart from Minimum sentencing of section 12 of the Constitution of the the minimum sentence. The intention of Sentencing refers to the penalty applied Republic of South Africa, 1996, which the legislature was not to eliminate the by a court to the person convicted of a sets out the right against cruel inhumane courts’ discretion in sentencing. crime and which finalises the case. 1 and degrading treatment. The court, Section 51 of the Criminal Law although finding the section to be Despite these cases, which guided the Amendment Act (“the Act”),2 which was constitutional, made some very important way in which the legislation is to be subsequently amended by the Criminal points on sentencing. The Court set out interpreted, the situation still leaves much Law (Sentencing) Amendment,3 provides that the right under section 12(1)(e) to be desired. Judges frequently misapply for the imposition of minimum sentences requires that the sentence be the provision, due to it being vague and for a wide range of serious crimes. 4 proportional to the offence, taking into ambiguous, which leads to disparity with There are various cases in which a courts account all the facts of the case.10 The the application of sentences for crimes. opine that applying the minimum question that arose is how to interpret Some courts interpret “substantial and sentences, taking into account the “substantial and compelling”. The compelling” at a high threshold, whilst specific circumstances of the case, would challenge was whether the threshold set others depart from the minimum be unjust and harsh.5 Section 51(3)(a) of is one that should be held highly or sentence for flimsy reasons.16 This was the the Act has a mechanism that allows treated with greater leniency. stressed in S v Matyityi,17 where the court courts to deviate from the minimum a quo placed undue emphasis on the age sentence.6 The subsection allows a court In S v Malgas,11 the court in interpreting and purported remorse of the accused.18 to deviate from the minimum sentence the section found that it did not compel The appeal court point out that the where “substantial and compelling” the courts to impose sentences that minimum sentence should be the starting circumstances are present which justify would be inconsistent with section point of the presiding officer, 19 and to the exercising of this discretion. 7 The 12(1)(e), finding minimum sentencing to deviate too easily from minimum discretion of a court may not be exercised be constitutional.12 The court in Malgas13 sentences is to undermine the arbitrarily: a court is expected to act takes the view that courts have a wider constitutional order.20 The court stressed within in the limits prescribed by the discretion than what was thought, but the the importance of the victim in the legislature and in accordance with the prescribed sentences should be viewed sentencing process, and the need to guidelines laid down by higher courts.8 as what is ordinarily appropriate for the place all relevant information before the crime, which should normally be court to allow it to make a fair decision.21 imposed, and should not be departed from lightly.14

1 JJ Joubert et al Criminal Procedure 10 See S v Dodo 2001 (3) SA 382 (CC) para 18 See S v Matyityi 2011 (1) SACR 40 (SCA) Handbook 12 ed (2017) 374. 38. para 25. 2 Act 105 of 2001. 11 2001 (1) SACR 492 (SCA). 19 See S v Matyityi 2011 (1) SACR 40 (SCA) 3 Act 38 of 2007. 12 ibid. para 11. 4 Joubert Criminal Procedure 377. 13 ibid. 20 See S v Matyityi 2011 (1) SACR 40 (SCA) 5 CR Snyman Criminal Law 6 ed (2014) 441. 14 ibid. para 23. 6 ibid. 15 Joubert Criminal Procedure 377. 21 See S v Matyityi 2011 (1) SACR 40 (SCA) 7 S 51(3)(a). 16 See S v Matyityi 2011 (1) SACR 40 (SCA). para 17. 8 Joubert Criminal Procedure 375. 17 2011 (1) SACR 40 (SCA). 9 2001 (3) SA 382 (CC).

20 MINIMUM SENTENCE

In S v Vilikazi,22 the court heard a matter the brutality with which he acted, among result could have been served through a concerning an appeal against the other factors, warranted that life shorter sentence, paired with other sentence of a person who had been imprisonment be imposed. The court was penalties, runs counter to the values convicted of rape.23 The court ultimately of the view, which I share, that when instilled in the Constitution. Through the allowed the appeal and in so doing looking at all these circumstances as discussion of the cases above it is clear highlight the issue of a misapplying the compared to his personal circumstances that the aim of consistency has not been legislation, or the ease with which courts they carry far greater weight.35 This case achieved, with judges following different depart from the legislation. The court a supports the balanced approach that is interpretative approaches to the quo failed to evaluate the circumstances, promoted by Malgas.36 legislation, with some even trying to as is required in terms of Malgas, 24 to circumvent it. 43 The aim of addressing ensure proportionality.25 The court was Is reform required? public concern has similarly not been critical of the legislation, referring to it as When a court sentences an offender it achieved in light of the fact that neither being unsophisticated and highlights that needs to take into consideration the triad, the judiciary nor the community has fully better guidelines would be welcomed by consisting of the crime, the offender and accepted the legislation, and the majority judges.26 The court was critical of the lack the interests of justice. 37 Minimum of the community do not understand the of gradation in sentencing of rape and the sentencing has the goal of deterring application of the provisions. 44 The bluntness of the provisions, which fails to criminal conduct and ensuring uniformity support of minimum sentences would in take full account of the circumstances of in sentencing.38 In light of the cases that all likelihood decrease should the the particular case.27 are discussed above, the question may information regarding the leniency with be raised whether the goal of ensuring which some courts apply the legislation In S v PB, 28 the court noted that the uniformity is being achieved. The various become known to the public. discretion in sentencing lies with the courts may be viewed as expressing sentencing court and must be exercised stringent, balanced or lenient approaches Since the minimum sentence legislation in terms of valid principles, with previous to the legislation, which is an undesirable is unsophisticated, and fails to satisfy the cases providing guidelines.29 The court situation. It may even lead to instances in aims that were set to be achieved through stressed how fixating on previous which a court finds substantial and the introduction of the legislation, it is sentencing would offend the principle of compelling circumstances by placing clear that some sort of intervention would individualisation, and the right to a fair emphasis on personal factors, which be welcomed. trial, contained in section 35 of the leads to the trial court to impose an Constitution. 30 The court stressed that appropriate sentence.39 The aim of the Options for reform each case has its own factual matrix, legislature in the introduction of minimum In light of the need to reform the which is an important consideration in sentence legislation was to reduce violent legislation, the options of either amending sentencing.31 crime, ensure consistency in sentencing the section to improve the manner in and address public perception of leniency which it is applied, or repealing minimum In the recent case of S v Kekana,32 the towards serious crime.40 sentence legislation in its entirety, thus court was faced with an appeal against a restoring full discretion of the court in sentence in which the accused was The aim of reducing the occurrence of sentencing, will be considered. sentenced to twenty-years for each count violent crime has not been achieved, but of murder, of which there were four, and what rather has occurred is a slight Amendment of Current Legislation two years for one count of common decrease in some crimes, and increases assault. 33 The issue raised by the in others. 41 The mandating of certain Various other democratic countries follow appellant was the fact that a twenty year sentences for serious crimes has led to a more intrusive approach to minimum sentence was imposed on each count of an increased prison population. There sentencing. 45 In Dodo, 46 the court murder, as opposed to the prescribed has been an increasing willingness to stresses that the legislature has a fifteen years. 34 The court took into impose harsher sentences. There is legitimate interest in penal sentencing, account the presence of aggravating further evidence that imprisonment does but the legislature may not compel a court circumstances that are present in the not lead to rehabilitation but rather the to impose a sentence which would matter, such as the fact that the contrary. 42 The situation in which infringe section 12(1)(e) of the deceased in the matter were children; the criminals are in prison for periods well Constitution. 47 Although legislation fact that they were his own children; and beyond the period in which the same amounting to complete compulsion would

22 2012 (6) SA 353 (SCA) para 26. 33 2019 (1) SACR 1 (SCA) para 4. 42 Ibid. 23 2012 (6) SA 353 (SCA) para 6. 34 2019 (1) SACR 1 (SCA) para 11. 43 SM Roth “South African Mandatory 24 2001 (1) SACR 492 (SCA). 35 See S v Kekana 2019 (1) SACR 1 (SCA) Minimum Sentencing: Reform Required” 25 2012 (6) SA 353 (SCA) para 30. para 42. (2008) 17 Minnesota Journal of International 26 2012 (6) SA 353 (SCA) para 10. 36 2001 (1) SACR 492 (SCA). Law 155 at 170. 27 2012 (6) SA 353 (SCA) para 13. 37 See S v Zinn 1969 (2) SA 537 (A) 541G. 44 Roth 2008 Minnesota Journal of 28 2013 (2) SACR 533 (SCA) para 19. 38J Sloth-Nielsen and L Ehlers “Assessing the International Law 171. 29 Du Toit et al Commentary on the Criminal Impact: Mandatory and minimum sentences in 45 See S v Dodo 2001 (1) SACR 594 (CC) para Procedure Act Volume 2 (2017) 276. South Africa” (2005) 14 SACQ 15 at 20. 32. 30 Ibid. 39 See Director of Public Prosecutions v 46 See S v Dodo 2001 (1) SACR 594 (CC) para 31 See S v PB 2013 (2) SACR 533 (SCA) para Pistorius 2018 (1) SACR 115 (SCA) para 22. 33. 18. 40 Sloth-Nielsen and Ehlers 2005 SACQ 20. 47 ibid. 32 2019 (1) SACR 1 (SCA) para 5. 41 Sloth-Nielsen and Ehlers 2005 SACQ 16-17.

21 MINIMUM SENTENCE be unconstitutional, the option of Reform Commission Project 82: is at the discretion of the trial court, and adopting sentencing principles would, in Sentencing (A New Sentencing the court should as far as possible be my view, be desirable as it allows for the Framework) (“Project 82”) and take granted with an unfettered discretion.59 aims of sentencing as set out above to be guidance from jurisdictions in which such The unfettered discretion would allow more correctly considered and would principles are currently in operation. 53 courts to impose balanced and fair assist in bringing about greater The guidelines have the potential to take sentencing, enabling justice; allow for consistency. This approach would be full cognizance of the pitfalls of the individualised judgments; and allow for aimed at providing greater sophistication current system as set out above, and put proportionality.60 to our legislation, which was the criticism in place measures that could limit the of the court in Malgas.48 Guiding factors unwanted side effects of the current The submission that we should repeal the would aid in promoting a proper legislation.54 current legislative provisions regarding consideration of all factors, hopefully minimum sentencing proposes that we leading to proportionate sentences, There should be a grading of categories should leave absolute discretion with the rather than judges erring in over- of offences, and the offences should be courts, using the guidelines provided in emphasising factors that should not have set out in order of severity. The Zinn,61 and previous case law to come to warranted departure from the normal application of the sections and the a conclusion. In this regard my view is minimum. resulting sentences that apply should be shared in Project 82, where the supplemented with guidelines that allow commission states that unfettered The introduction of sentencing guidelines for deviation, but which are not as rigid or discretion, leave judges in a position that would push the courts towards greater blunt as those that are in the current Act. cannot be tolerated in a democratic considerations of restorative principles in The prescribed sentence, read with the state.62 There would potentially leave no appropriate circumstances, which would guidelines, would assist in making the consistency which would run counter to be desired in light of the values that are dispensing of justice more expedient. The the values of equality, 63 dignity, 64 and espoused in the values of the establishment of a council, as is freedom, 65 the result be unequal Constitution. 49 The guidelines would suggested in Project 82, would be treatment through absolute discretion assist judges in determining what is desirable as various opinions would need which is undesirable. appropriate and proportionate by to be considered in order to determine the providing a means of taking notice of the appropriate guidelines. 55 According to Conclusion offender, the offence, the complainant, Project 82, the only personal In light of the above it is my submission and the role that the individual sentence circumstances that should be taken into that the best option would be to amend has in achieving the sentencing account are previous convictions. This is the legislation, by amending the objectives.50 inadequate, the guidelines should take provisions and introducing guidelines to full cognisance of the perpetrator.56 The allow for a proper interpretation of the The High Court in S v Dodo51 came to the achievement of absolute consistency provisions, as opposed to the ambiguous conclusion that the section was would run counter to the principles of legislation that is currently in operation. unconstitutional on the basis that the fairness and justice, and guidelines The current system of inconsistency is legislature was in effect undermining the taking full heed of the personal undesirable and not consonant with the separation of powers and the circumstances of the offender are values of the Constitution. The proposed independence of the judiciary. 52 The desireable. guidelines would further assist in greater legislature has a legitimate interest as set expedience in the dispensing of justice. It out above. Thus, further guiding Repealing the Legislation is my submission that the introduction of principles would not undermine the legislation is preferable, as opposed to separation of powers and the Terblanche points out that, there is a lack the development of guidelines through independence of the judiciary so long as of consistency in the sentencing process the courts, because of the issues that they do not amount to compelling the in South Africa, which is undesirable.57 remain regarding the of the section judiciary to impose a certain sentence. The issue of inconsistency is not despite the guidelines provided in the experienced to the same extent in main cases. The guidelines could be drawn up in countries where courts exercise an accordance with the proposal that was unfettered discretion.58 The supporters of put forward by the South African Law this option are of the view that sentencing

48 2012 (6) SA 353 (SCA) para 10. Lessons for Australia?” (2008) 41(3) The 59 Botes v S [2010] ZAGPPHC 218 para 3. 49 Roth 2008 Minnesota Journal of Australian and New Zealand Journal of 60 S v Rabie 1975 (4) SA 855 (A) at 861D. International Law 179. Criminology 402 at 413. 61 1969 (2) SA 537 (A) 541G. 50 ibid. 55 South African Law Reform Commission 62 South African Law Report Commission 51 S v Dodo 2001 (1) SACR (E). Project 82: Sentencing (A New Sentencing Project 82: Sentencing (A New Sentencing 52 SS Terblanche “Tw enty Years of Framew ork) 46. Framew ork) 25. Constitutional Court Judgments: What 56 VI Jameson Structuring the exercising of 63 S 9. Lessons Are There about Sentencing” (2017) sentencing discretion in South African criminal 64 S 10. 20 PELJ 1 at 7. courts (LLD,NWU, 2018) 150. 65 S 12. 53 Roth 2008 Minnesota Journal of 57 SS Terblanche “Sentencing guidelines for International Law 181. South Africa: Lessons from elsewhere” (2003) 54 SS Terblanche and G Mackenzie 20(4) SALJ 858 at 859. “Mandatory Sentences in South Africa: 58 Terblanche 2003 SALJ 859.

22 CRIMINAL LAW

IS THE PREVENTION AND COMBATING OF HATE CRIMES AND HATE SPEECH BILL NECESSARY?

Gisele Mans and Emma Roberts Penultimate Year LLB Students

The Prevention and Combating of Hate iniuria sufficiently accommodate hate In terms of the Bill’s definition of hate Crimes and Hate Speech Bill B-9 of 2018 crimes and speech? crime, an offence becomes a hate crime (the Bill), has been considered in when motivated by prejudice. An act Parliament but is not in force at this time. The Bill distinguishes between hate amounts to hate speech when it can This article will assess whether the Bill is speech and hate crime. The Bill7 reasonably be interpreted to have the necessary or whether the common law describes a hate crime as an offence intention to harm, promote harm or incite crime of crimen iniuria can sufficiently motivated by prejudice towards the hatred based on the listed characteristics. address these crimes. Currently, in SA, victim, family member or a group the The definitions used in the Bill are wide, neither hate speech nor hate crime is fully victim is associated with. The prejudice which is potentially problematic as it codified. The Promotion of Equality and may be based on a variety of expands the number of offences which Prevention of Unfair Discrimination Act 4 characteristics, including race, gender, could potentially amount to hate crime or of 2000 (the Act) regulates hate speech language and political affiliation. Hate hate speech. The term harm, as used in but it does not criminalise it.1 Offenders speech, as defined in the Bill,8 occurs the Bill,13 includes emotional, convicted of hate speech in terms of the when a person intentionally publishes or psychological and economic harm. Act are not imprisoned, nor do they communicates something to one or more receive a criminal record. Crimen iniuria persons, in a manner which can The Bill does not have an adequate currently addresses hate crimes: but is it reasonably be interpreted to have the mechanism for dealing with trivial insufficient? intention to be harmful, incite harm or offences, which allows trivial acts to be promote hatred based on the labelled as hate crimes or speech. This Crimen iniuria is defined as the characteristics described above. In terms has the potential to clog up the criminal intentional and unlawful impairment of of the Bill,9 a person who commits either justice system. Courts, therefore, will another individual’s dignity or privacy.2 It a hate speech or hate crime is guilty of an have to deal with minor disputes rather can be committed by either words or offence. than the cases which address important conduct.3 In De Lange v Costa,4 a test to social issues in South African such as determine whether conduct amounts to Crimen iniuria applies only to a serious those dealt with in the cases of Vicki the offence of crimen iniuria was impairment of dignity or privacy.10 It is not Momberg, Penny Sparrow, Fani Titi and formulated. The test asks, firstly, whether concerned with impairments of a trivial Adam Catzavelos. the victim’s self-esteem was impaired nature.11 The test in De Lange v Costa12 and, secondly, whether the conduct is ensures that only objectively serious The aspects of the Bill that regulate hate offensive in the opinion of a reasonable imparements of dignity or privacy speech have led to many people arguing person.5 The test aims to ensure that the impairments constitute crimen iniuria. that these regulations limit the opinions of hypersensitive individuals do Allowing only serious impairments to Constitutional right to freedom of not escalate the words or conduct amount to crimen iniuria prevents the expression.14 This is due to the fact that unfairly.6 courts from becoming clogged up by the Bill has the potential to silence their minor cases in which there was a voices and opinions on economic, social Essentially, the test ensures that the subjective impairment of dignity. or political power issues by labelling them impairment of dignity is sufficiently an act of hate speech.15 There have been serious. But does the crime of crimen The Bill’s requirements for hate speech suggestions that the Bill should instead and hate crime are exceptionally broad.

1 J Botha and A Govindjee ‘Regulating cases 4 [1989] 2 All SA 267 (A). 11 JRL Milton South African Criminal Law and of ‘extreme hate speech’ in South Africa: A 5 Burchell Criminal Law 654. Procedure 3 ed (1996) 492. suggested framework for a legislated criminal 6 ibid. 12 270. sanction’ (2014) 2 SACJ 117 at 117. 7 s 3. 13 s 1. 2 J Burchell Principles of Criminal Law 5 ed 8 s 4. 14 s 16. (2016) 648. 9 s 6 (1). 15 Free Market Foundation “Submission to the 3 See R v Marimuthoo [1956] 3 All SA 163 (N) 10 JRL Milton South African Criminal Law and Department of Justice and Correctional 163. Procedure 3 ed (1996) 492. Services on the Prevention and Combating of 23 CRIMINAL LAW regulate hate crimes only. This is clarity than crimen iniuria and clearly between a user’s freedom of expression supported by the argument that it risks enhances the penalties of those and accountability of third-party limiting freedom of speech and the convicted of hate crimes.30 providers.38 It is necessary to set argument that while hate crimes have guidelines for when the service provider previously been unregulated, crimen The Bill31 places obligations on the South is responsible for ensuring there is no iniuria has always provided for the hate African Human Rights Commission, the hate speech on their site, and when it is speech phenomenon.16 Commission for Gender Equality and the the perpetrator only who must face the South African Judicial Education Institute. consequences. This is due to the fact that Crimen iniuria, being a common law The Bill32 requires the creation of a the perpetrator cannot always be found. crime, is not codified, and therefore there presidentially selected team that will The Bill, however, does not take this is no sentencing guide. Prinsloo v S17 educate the general public and public approach. The Bill has elected to regulate arose from disputes over parking at a officials on the Bill’s content. In addition, individuals rather than internet providers, female residence. After using extremely the Bill33 mandates a judicial education which could potentially prejudice racist words towards the complainant, program aimed at training judicial officers individuals while allowing providers to Prinsloo was convicted of two counts of to be proficient in the laws of hate crime remain blame free. When the perpetrator crimen iniuria and sentenced to a R6000 and speech when adjudicating. The goal cannot be found due to the anonymity fine or 12 month imprisonment.18 In the of the Bill is to prevent hate speech and provided by the internet, there is a unreported case of S v Sparrow19, in crime from occurring; however, the significant potential of no justice being which the appellant wrote a racist likelihood of this working is debatable. done and certain cases of hate speech Facebook post, the appellant was This is due to the lack of infrastructure falling by the way side. convicted of a charge of crimen iniuria.20 within the Bill to exclude trivial matters. It Sparrow was instructed to pay a is more likely that it will result in an To conclude, the Bill has both ad- R150 000 fine, which was given to an increase of cases than a decrease. The vantages and disadvantages. The Bill NGO promoting non-racialism.21 More Act34 has similar provisions regarding sets out sentencing guidelines and it aims recently in Momberg v S,22 currently on education, and yet most South Africans to educate the general public, public appeal, the appellant, Momberg, was are unaware of the Equality Court. officials and the judiciary in order to convicted of four charges of crimen prevent and combat hate speech and iniuria. The appellant racially attacked A crucial issue regarding hate speech crime. Furthermore, the Bill creates several black policemen.23 The appellant and crime is the recent development of provision for crimes committed by was sentenced to three years technology. Technology, especially electronic communications, and this is imprisonment and one year suspended.24 social media, has opened the proverbial one of the first attempts to do so in our The sentences demonstrated above, vary floodgates of hate speech on the internet. law in dealing with hate speech. These widely and follow no pattern. Social media enables the public to create advantages go beyond the simple and share content online.35 Considering common-law crime of crimen iniuria. The On the other hand, the Bill,25 prescribes the fact that the majority of perpetrators Bill, however, has an extremely vague penalties and sentencing for hate crimes of hate speech commit their crimes from definition of hate speech which will allow and hate speech. A person convicted of a the safety of their keyboards, and some minor offences which do not amount to hate crime is liable to penalties set out in who do so in person are often caught on crimen iniuria, to amount to hate speech. the Bill26 which include imprisonment, video, the internet is a key contributor to This will result in the courts becoming periodical imprisonment, a fine and curbing hate speech in South Africa as clogged by trivial dignity impairments. correctional supervision. The Bill27 states well as a contributing factor which Crimen iniuria uses the De Lange v Costa that a person convicted of hate speech enables more people to commit the test to ensure that only serious objective will be liable to a fine or a maximum of crime.36 Regulations on internet impairments amount to an offence, five years imprisonment, or both.28 The communications are, however, difficult to therefore preventing that problem. convicted person will be sentenced to enforce when the platforms run across Additionally, the arguments that the Bill whatever the Court deems appropriate jurisdictional boundaries.37 amounts to a limitation of the Constitution and within its penal jurisdiction.29 The Act, are a significant concern.39 Therefore, therefore, clearly sets out the possible To solve this issue, provisions are despite the advantages of the Bill, the punishments a person convicted of needed to curb the use of hate speech. vagueness present is, in the writer’s crimen iniuria might face. It gives more There needs to be a balance struck opinion, too extensive to ignore.

Hate Crimes and Hate Speech Bill, 2018” 22 [2019] ZAGPJHC 183. suggested framework for a legislated criminal (2019) 23 See Momberg v S [2019] ZAGPJHC 183 sanction” (2014) 2 SACJ 123. https://www.freemarketfoundation.com/dynam para 5. 31 s 9. icdata/documents/20190131-submission-on- 24See Momberg v S [2019] ZAGPJHC 183 32 ibid. hate-speech-bill.pdf (accessed on 6 August para 1. 33 s 9. 2019) at 2. 25 s 6. 34 s 2 (e),30, 31, 29. 16 Free Market Foundation “Submission to the 26 s 6(1). 35 Sive and Price 2019 SALJ 51. Department” at 1. 27 s 6 (3). 36 Sive and Price 2019 SALJ 55. 17 [2014] ZASCA 96. 28 The Bill s 6 (3) (a). 37 Sive and Price 2019 SALJ 52. 18 See Prinsloo v S [2014] ZASCA 96 para 1. 29 s 6. 38 Sive and Price 2019 SALJ 56. 19 State v Penelope Dora Sparrow 708/2016. 30 J Botha and A Govindjee “Regulating cases 39 s 16. 20 Sive and Price 2019 SALJ 68. of 'extreme hate speech' in South Africa: A 21 Sive and Price 2019 SALJ 68. 24 CUSTOMARY LAW

DEVELOPMENT OF MATRIMONIAL PROPERTY SYSTEMS IN POLYGAMOUS MARRIAGES

Tshwanelo Mabelane Legal Theory Three Student

The purpose of this article is to investigate were entered into before and after the marriages, regardless of the date of their how the law on matrimonial property commencement of the Act. Given that marriage, were given equal control and systems in respect of polygamous some customary laws are discriminatory ownership of the marital property as they customary marriages has been developed towards women. The principle of fell under in community of property by in light of Gumede v President of the primogeniture in Bhe v Magistrate, default unless they entered into an Republic of South Africa and Ramuhovhi v Khayelitsha4 is one example, women who antenuptial contract. However, the President of the Republic of South Africa entered into customary marriages before judgment did not address the issue insofar case. 15 November 2000 would have remained as it relates to matrimonial property in vulnerable to the discriminatory customary polygamous customary marriages. Development of matrimonial property laws whilst women who entered after the systems in polygamous marriages said date are liberated by the Recognition Only recently, the question of polygamous customary marriages entered into before The Constitutional Court has extended the Act. Although the purpose of the Act is to provide for equal status and capacity of the commencement of the Recognition Act law of matrimonial property by including 6 spouses in customary marriages, the was dealt with in the Ramuhovhi case. In polygamous customary marriages which Ramuhovhi, the challenge was that the were concluded before the outcome is to the opposite effect, as it further subjected wives entered into application of section 7(1) of the commencement of the Recognition of Recognition Act, together with the Venda Customary Marriages Act (Recognition customary marriages before the Act to these discriminatory laws. custom, dictated that wives in “old Act) to fall automatically under in polygamous customary marriages” community of property and of profit and The Constitutional Court dealt with this enjoyed no rights of control over and loss unless stated otherwise in an inconsistency in the Gumede5 case. The ownership of marital property – this right 1 antenuptial contract. Section 7(2) of the issue in this case was whether wives who solely vested in the husband. The Recognition Act provides that a customary entered into customary monogamous Constitutional Court confirmed the marriage entered into after the marriages before the commencement of declaration of constitutional invalidity of commencement of the Act, where a the Recognition Act were entitled to section 7(1) on the grounds of gender, spouse is not a party to an existing matrimonial proprietary consequences ethnicity, social origin and marital status. customary marriage, is a marriage in provided in section 7(2). The words The court extended the matrimonial community of property and profit and loss “entered into after the commencement of property regime for polygamous customary unless the such proprietary consequences the Act” in the Recognition Act were marriages entered into before the are explicitly excluded by spouses in an declared unconstitutional insofar as they commencement of the Recognition Act to 2 antenuptial contract. Section 7(1) of the relate to monogamous customary be treated as marriages in community of same Act further states that customary marriages. The court held that depriving property unless the parties explicitly marriages entered into before the women in “old monogamous marriages” of exclude the proprietary consequences by commencement of the Act continue to be the benefits in section 7(2) simply because way of an antenuptial contract. 3 governed by customary law. of the date of their marriage amounted to unfair discrimination on the grounds of Furthermore, the court highlights that The effect of these provisions of the section 6 of the Recognition Act provides Recognition Act is that they create a gender. The effect of this judgment was that wives in monogamous customary for equality in status between husband and discrimination between marriages that wife and grants full capacity to wives to

1 Ramuhovhi and others v President of the 2 Recognition of Customary Marriages Act 120 4 2005 (1) SA 580 (CC). Republic of South Africa and others 2018 (2) SA of 1998. 5 2009 (3) SA 152 (CC). 1 (CC). 3 Recognition of Customary Marriages Act. 6 2018 (2) SA 1 (CC).

25 CUSTOMARY LAW acquire and dispose of assets. To that end, conclude that wives in “old polygamous opposite effect that further subject wives in section 7(6) provides that a husband who marriages” also have equal contracting “old customary marriages” to wishes to enter into a further marriage after rights with the husband on the matrimonial discriminatory customary laws and the commencement of the Act ought to property system which will govern the rendered progressive sections of the Act conclude a written contract with his current polygamous marriage. Thus, the such section 6 useless.9 However, the wife about the proprietary consequences Ramuhovhi case has also extended the courts have now actively developed which will govern his marriages then make law on matrimonial property regimes in customary law insofar as it relates to an application to the court for approval.7 In polygamous marriages to this effect. matrimonial property systems by declaring Ngwenyama v Mayelane,8 the court held section 7(1) unconstitutional in Gumede10 that if the husband fails to make such an Conclusion for monogamous customary marriages application to the court, the marriage will Moseneke DCJ in Gumede stated that the and in Ramuhovhi for polygamous 11 not be void. However, the matrimonial Recognition Act had a noble intention to marriages. As Madlanga J said, this was property system of the subsequent protect the most vulnerable in customary to put to an end to the continuing plight and marriage will be one of out of community of marriages, mostly women and children. long suffering of wives in “old polygamous 12 property and of profit and loss. Contrary, section 7(1) and 7(2) had an customary marriages”.

Although the Ramuhovhi case does not make an order to this effect, one may

7 2018 (2) SA 1 (CC) para 35. 9 2009 (3) SA 152 (CC) para 16. 11 2018 (2) SA 1 (CC). 8 2012 (4) SA 527 (SCA) para 38. 10 2009 (3) SA 152 (CC). 12 2018 (2) SA 1 (CC).

26 TAX LAW

C:SARS v VOLKSWAGEN SA (PTY) LTD [2018] ZASCA 116: CLOSING THE DOOR ON VALUATION OF CLOSING STOCK FOR TAX PURPOSES?

Mr Richard Poole MCom

(Taxation) (Rhodes) MTP (SA)

Senior lecturer Taxation studies 10 The main issue before the Supreme entitled to grant a write down of VWSA’s its trading stock. Wallis JA agreed that there is some overlap between the Court of Appeal1 was whether the basis closing stock, given that VWSA had provisions of section 22(1)(a) and IAS 2, on which Volkswagen (WVSA) had written its closing stock down on the especially with regard to expenses written down the value of its closing application of generally accepted incurred in consequence of past events. stock in the 2008, 2009 and 2010 years accounting practice, read with However, he noted further that there are of assessment was consistent with the International Accounting Standard 2 provisions of section 22(1) of the Income (Inventories) (IAS 2).4 other costs contemplated by IAS 2 that Tax Act. may be incurred in future. These costs The learned Judge noted5 that trading may affect the NRV, but would not be Section 22(1)(a) of the Income Tax Act2 stock is valued at the end of the tax year, relevant for determining the amount by provides as follows: taking into account an amount “by which which the value of trading stock has the value of the trading stock has been diminished.11 “The amount which shall, in the case of taxable diminished”,6 and noted further “that . . . income derived by any person during any year Wallis JA also pointed out12 that there is is couched in the past tense”7. It is of assessment, from the carrying on any trade therefore clear that section 22(1)(a) a further problem with the use of IAS 2 to . . . be taken into account in respect of the write down trading stock, in that IAS 2 value of any trading stock held and not contemplates situations where trading provides for individual stock items to be disposed by him at the end of such year of stock has diminished based on past written down to NRV, whereas section assessment, shall be – (a) In the case of any events. A literal reading of the section 22(1)(a) contemplates trading stock as a trading stock other than trading stock confirms this. However, the application of whole. Therefore any recognition of a contemplated in paragraph (b), the cost price IAS 2 to write down trading stock allows to such person of such trading stock, less such the taxpayer to write down trading stock diminution of the value of trading stock amount as the Commissioner may think just needs to be determined with regard to based on future and other anticipated and reasonable as representing the amount by trading stock as a whole.13 which such trading stock . . . has diminished by events. Wallis JA noted a potential 8 reason of damage, deterioration, change of incongruity here. He observed that whilst Ultimately, the court held against VWSA, fashion decrease in the market value or for any the use of past and future events may be holding that the use of NRV is not the other reasons satisfactory to the appropriate for reporting for accounting appropriate tool to determine the extent Commissioner.” purposes to establish a going concern for to which trading stock has diminished at the benefit of shareholders, this may not 14 Wallis JA noted3 that VWSA had, during the end of the year of assessment, necessarily be the appropriate when the said of assessment, written down its noting further that a write-down of the looking at the provisions of section closing stock by R72 002 161, R24 value of trading stock based on NRV 22(1)(a). 778 885 and R5 294 643 respectively. would entitle VWSA to income tax deductions not yet actually incurred, but The CSARS disallowed the write down, In this case, VWSA had taken to account which might be incurred in a future year.15 raising additional assessments against a number of future anticipated costs in VWSA for income tax in the 2008, 2009 determining the net realisable value It is submitted that Wallis JA’s judgment and 2010 years of assessment. VWSA (NRV), including, inter alia, handling is clear and well considered and, unless appealed to the Tax Court, which set costs, shipping costs, marine insurance, legislation changes, has literally closed aside the additional assessments, thus selling and distribution costs and the door for those who have been relying leading to the appeal by the CSARS. The 9 warranty charges. VWSA’s contention on IAS 2 to write down the value of their matter that the SCA was called upon to was that these charges should be taken closing stock at year-end for tax decide was whether the CSARS was into account for determining the NRV of purposes.

1 C:SARS v VOLKSWAGEN SA (PTY) LTD 6 Ibid. 12 Paras 46-7. [2018] ZASCA 116. 7 Ibid. 13 Para 46. 2 Act 58 of 1962 (as amended). 8 Paras 31-2. 14 Para 52. 3 Para 3. 9 Para 37. 15 Para 53. 4 Paras 9 & 10. 10 Para 43. 5 Para 16. 11 Ibid.

27 FAREWELL TO THE FINAL YEAR CLASS OF 2019

To the Final Year Class

As an Administrative lawyer, I thought it best to leave (delegate, authorise, dictate!) the philosophical quotes to someone else. And as you probably had enough of ‘factors’ and ‘elements’ and ‘guidelines’, rather call this an A-Z of memories. And take note: this is not an exhaustive list and ‘reading in’ is permitted in the circumstances. You may, not must! Apply your mind as you see fit.

A - ADMINISTRATIVE LAW – what else! Further, as the Law Faculty Handbook correctly points out - remember when using Abbreviations – standard Abbreviations should be used, no full stops; Acting Judge (AJ). And AA? Standard Abbreviation? Well, you’ll never associate AA again with Automobile Association, or Alcoholics Anonymous, but ADMIN ACTION - go figure! And if Articles does not work out for you, you can always turn to Academia. We can do with more Academic minds like yours. B - Barratt and Bots, Books and Bibliographies – for anything else, there’s Black’s Law Dictionary [I probably should have said the Bill of Rights?] C - From the CC to the CCMA, and at the Law Clinic or in Class, whether Civil or Criminal Procedure; Company; Constitutional; Contract or Criminal Law: Case law, Case law, Case law!!! And do not forget the Common Law (it still applies!); even Customary Law. In times of Crisis – call on CPU. And if all else fails – you can always turn to the CONSTITUTION. D - Dinners and Dances in Drostdy Hall. And beware of Donkeys – so Do not Drink and Drive. When it comes to DPs and Discipline - the Dean always has a Discretion and the authority to Delegate a Disciplinary Decision or DP removal. Of course, subject to Delegatus Delegare non potest! And as a last resort, you may try your luck with Damages or Delict! E - Estoppel? Can someone please EXPLAIN!! Writing Exams in Eden Grove: Equality, Employment Equity, Ethics, and Evidence. Hopefully soon it’s the End of Exams. F - FILAC? Do not repeat the FACTS!! Focus First years!! And never forget your Footnotes and Full stops. [Remember: a Full stop must appear at the end of each Footnote and the Footnote must be justified!!] G - Whether it’s the Graham Room, Great Hall or Great Fields, and whether you read of us in the Government Gazette, Grocott's Mail or on Google, one thing stands out: Grahamstown is…uhmmm… GREAT! Great memories, Generous people and Good coffee!! So make sure to Graduate and see you at GRADUATION!! H - From Hilltop down to Hobson Hall. And in the Home, the House and Hall -- Human Rights first, and then only, Huur gaat voor koop! I - You’ve learned about Interdicts, Insider trading and Intestate succession, and concepts such as Incapacity, Impartiality and Intention. Not to mention Intro to Law and the Ius gentium, Ius Civile, Iustinianus and Iustititia. But you’ve also been exposed to International Law and the Importance of Internationalization. Our International students add substantially to the richness of our Intellectual space and enhances the Institutional culture of our Faculty and Institution. J - Of Judgments and Judges; Jurisprudence and Jurisdiction; Journals and Jurists … and the Corpus Juris of Justinian! But above all – JUSTICE. Justice should not only be done but should manifestly and undoubtedly be seen to be done.

28 K - K must be for Prof Kerr. Alastair James Kerr, SC (LLB 1949), Emeritus Professor of Law at Rhodes University and inspiration behind the naming of our library as the Alastair Kerr Law Library. If you did not have the pleasure of knowing Prof Kerr – his legacy will live on through Kerr’s The Principles of the Law of Contract, one of the standard works on contract in South African law; Kerr’s The Law of Agency and Kerr’s Law of Sale and Lease. Go and find him somewhere in the books and footnotes in the Alastair Kerr Law Library. L - LAW!!! Law Faculty; Law Library and Law Soc. Where you grappled with Legal Theory, Legislation and Labour Law. Where it took you some time to figure out what an LOA was – and to always get a proper one! Where your LLB will remind you of a place where Leaders Learn. M - Marks for Moots and Moots for Marks. Make-ups in the Moot Room. Movables, Motives and Misrepresentations. Mullins, Makana, Makhanda! N - Neg med, Numeracy and Natural Law. NEMA and NERSA and NPOs. And who will forget the principles of Natural justice, Nemo iudex in sua cause and the nasciturus fiction. Never! O - OPAC? Whether an Oppie or just trying to access the library Off-campus – if you still don’t know, OPAC are in fact the catalogues for library material!. Oops – Ohhhh! P - It is no Pride and Prejudice, but your share of PAJA and PEPUDA, Peace and Protest, Property and Persons, Partnerships and Trusts, and somewhere, a run-in with a Professor or two! Plagiarism and Problem-solving, and as per the Faculty Handbook - Practising, Practising, Practising! Q - Of Quotes and Quotation marks. Remember: “Quotation marks should be used where you [Q]uote the direct words of other authors [or the Law Faculty Referencing Guide], and indicate that the passage you have [Q]uoted is not your own words”. Quid pro Quo! R - From Rhodes and Res to the Rat and Parrot. And if you find yourself in breach of any Rules or Regulations – first exhaust your internal Remedies and apply for judicial Review! And Remember the Rule of Law. S - Students and Staff – the Soul of the Faculty. And SWOT week – time to try and make sense of Sequestrations, Spoliation, Settlements, Session, and Summons. And with the help of SAFLII and your trustworthy Syndicate notes, you can hopefully remember your Summaries, Substantiate your answer, Syllogize (thank you Legal Skills), Synthesize… and hope for no Sups! T - Who can forget their Tutors and LLB Tea Time, not to mention the Tortures and Tales of The Twelve Tables, the Roman Tribunes and the Codex Theodosianus! U - Always Uphold the Law. Beware against any action for Ulterior motives, Usurping someone’s authority, acting Ultra vires or acting for an Ulterior purpose. Not only will such a decision be Unconstitutional, but also Unenforceable, Unreasonable and Unlawful. Ubi lex ibi poena – where there is a law, there is a penalty! V - Veni, Vidi, Vici!! Or maybe In Vino Veritas? Or a better option - Vis, Virtus, Veritas! W - Wardens and Wikipedia – by far the most authoritative sources of info and research available to students, academic or otherwise! What more do you need in order to answer the WHAT and the WHY? X - LEX generalis, EX post facto, EX lege, EX officio, and most importantly – always vigorously reject all forms of Xenophobia. Y - YOU TUBE – probably the ultimate pass time for students – during class! And a quick guide to ALMOST everything. Needless to say, final years, no exam papers there (yet!). Z - ZAECGHC? Who can forget the interesting cases of Zwani, Zondi, and Zuma. And last but not least, the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State. The Zondo Commission – Zero tolerance for corruption. You have now seen it all.

Go out there and be a Rhodes Law graduate who is a knowledgeable intellectual, skilled professional, and critical, caring and compassionate citizen who can contribute to economic and social development and an equitable, just and democratic society.

Warm regards, Prof Van Coller

29 Daudi Banda Kristy Zandri Bezuidenhout Bassingwaighte I am going to be rich, I know. Cry on the inside, like a winner. I’m still not sure I want to do law.

Ryan Birkner Nicole Botha Lauren Brabant “The one who plants trees, knowing “Though she is but little, she is “And if not, he is still good.” that he will never sit in their shade, fierce.” Shakespeare Daniel 3:18 has at least started to understand the meaning of life” Rabindranath Tagore

Ashley Bristow Samantha Chigwedere Charity Chigwere "Indeed, I count everything as loss Sometimes you actually don’t have your Whenever you find yourself doubting because of the surpassing worth of sh$% together! But that doesn’t how far you can go, just remember knowing Christ Jesus my Lord." make you a loser, it makes you human! how far you have come. Remember Philippians 3:8 Figure it out and get back up! everything you have faced, all the battles you have won, and all the fears you have overcome.” 30 Candy Chikwezvero Farai Chikurunhe Fadzayi Chikurunhe Do not let anyone or anything dim your Suit up. I look better in person. light. You are destined for greatness.

Mugove Chokuwenga Matthew Clark Clarize Coertze Vincit Omnia Veritas. We over estimate what we can “It’s always darkest before the dawn” accomplish in a day and F Welch under estimate what we can accomplish in a lifetime.

Daniel Coetzer Jeremy de Beer Thokozani Dladla Made it out of here without The human form of the 100th emoji “He who refuses to obey cannot becoming a lefty. command.” Kenyan Proverb

31 Thandolwakhe Ayanda Dube Bryony Fox Dlamini "I am a winner because I keep on Breathe, you know more than you Just give me the degree and keeping on. I keep on keeping on think you know. pronounce my name correctly. because I am a winner." MM

Georgina Gardner Tendai Goto Aphiwe Gunundu The best thing about the future is that Pain is temporary. “Laws are spider webs through which it comes one day at a time . A law degree is forever. the big flies pass & the little ones get caught.” Honore de Balzac

Kelvin Hackett Shalom Hanjahanja Ryan Harley

When’s this due? I was assigned this mountain to Shout out to caffeine and syndies. show others it can be moved.

32 Cornelia Hausiku Erika Heaton Shayne Hibbert If life doesn’t smile back at you, “Real generosity toward the future The coffee in between. give it a little tickle. lies in giving all to the present.” Albert Camus

Terry Hlongwane Larissa-Jane Houston Matiparuva Hwacha

U nge kumi leswo biha ntsena la “Anybody who thinks talk is cheap “There are many ways of arriving at misaveni, na leswinene wa swi should get some legal advice.” Bill and interpreting the truth, the law kuma. Maher offers only one way.” Roch Tlhabi

Mark Jarrett Ndilenao Kamati Gamuchirai Kutukwa Quality of life is the quality of your If spending thousands on a law degree Law school will really have you doing relationships. and losing my soul in the process isn’t dumb stuff like setting an alarm for a enough commitment to a legal career, 12 minute nap. I don’t know what is.

33 Yanga Macingwane Gugulethu Mahlobo Kudzai Makoni

I learned how to loosen the strap to If there’s one thing I am willing to Knowledge makes a man unfit to be tighten it. bet on, it’s my damn self. a slave.

Natasha Makowe Zodwa Malinga Tsepo Mantje

“The key to realising a dream is to Inzima lendlela ifuna “In law there is no time to sit and focus not on success but significance ababekezelayo. think of England.” Ms Padayachi – and then even the small steps and little victories along your path will take on greater meaning.” Oprah Winfrey

Rumbizai Matamba Siphosethu Matebese Rhulani Matsimbi Thank God we can’t tell the future. “Here you are, black and woman and in “The tragedy of life is not that it We’d never get out of bed. love with yourself. They are terrified. As ends so soon, but that we wait so they should be.” Upile Chisala long to begin it.” W M Lewis

34 Basil Brighton Velenkosini Mbambo Ockert Meyer Maungwa “Overthrow the bourgeoisie. This could have been an email Sometimes waking up is the Seize the means of production." . second hardest thing in the morning.

Wisdom Moyo Ludi Mpati Ayanda Mpofu

Nulla fenaci invia est via. "Inspiration cannot be manufactured or manipulated. It comes like a bolt out of the bur, or like a whisper in the darkness.” Kate Forsyth

Andile Msane Sbusiso Mukhari Natalie Muronda “Never give up on your dreams my Perseverance is the hard work you “Our deepest fear is not that we are inadequate; darling. For they are your birthright do after you get tired of doing the our deepest fear is that we are powerful beyond measure. It is our light not our darkness that most and you owe it to the world to become hard work you already did. the queen you are.” Mark Anthony frightens us, we ask ourselves who am I to be brilliant, gorgeous and fabulous? Actually, who are you not to be?”

35 Matifadza Natasha Ncube Sibusiso Ngwila

Mutseyekwa That wasn’t like “How to get away I’m just here to state my case, and “Gods is within her, she will not with murder” at all. then go back to Joburg. fail. I am more than a conqueror through God’s grace.”

Nyameka Nkasana Sibuthe Nkonyana Yalusa Nodada Your silence will not protect you. “If you can’t handle the heat, get out of the kitchen.” Kid Cudi

Daniella Ochieng- Tazmin Oosthuizen Lydia Ouandji

Omolo “Speak your mind even if your voice The hardships of getting a degree I came here to marry a rich man. It shakes.” Maggie Kuhn are temporary but the DRIP is turns out I’m going to become the eternal . rich man.

36 Candice Petty Simon Quinn Micaela Pather In this life we all have troubles, but if Finding a balance has proven “You doctor now?” Grandpa you worry too much you’ll make to be key. ‘em double.

Arnold Saungweme Marcus Schaefer Kudzaishe Shoko “To improve is to change. To Taking naps sounds so childish. I Constantly thinking of England... perfect is to change often.” Remy prefer to call them horizontal life Danton pauses.

Mbonisi Sibanda Hloniphile Bertha Blake Skirving The brain is a wonderful organ; it Singo The Golden Rule – He/She who starts working the moment you get “You be you and let the world has the Gold rules. up in the morning and does not stop adjust.” Mark Groves until you get into class.

37 Siyabonga Skosana Mfundoluntu Somandi Jethro Weeks

Energy doesn’t lie. In everything. So “The law is a jealous mistress, and “Is it Administrative Action: Yes or think about your energy in here. requires a long and constant courtship. No?” Prof Helena van Coller It is not to be won by trifling favours, but by lavish homage.” Justice Joseph Story

Ferdinand Weyers Kyle Whitfield Nicholas Wright It’s always a good move to listen to “De lo, de lo, de lo. What about de Birds of a feather flock together. that inner voice... if it doesn’t lo?” lead to a crime.

Bradley Wright Nokwanda Zondi Mthokozisi Zungu (insert generic quote) “The mind is a flexible mirror, adjust “The master in the art of living makes little it to see a better world.” distinction between his work and his play, his labour and his leisure, his mind and his body, his information and his recreation, his love and his religion.” L P Jacks 38 Notes ______

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