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UCT Law Students’ Newsletter Volume 4, Issue 1 March 2013 Waiting on a Revolution Will Anene Booysen Should we Bail or Not if the Ship’s Going Down?

be our Amina Filali or The month of February was a v Joubert; S v Schietekat - is By Thomas Henstra Jyoti Singh Pandey? tumultuous one that shook South whether the interests of Africans to the core. Two justice permit the release of Page 2 tragedies, one befalling a the accused pending trial. teenager from Bredasdorp, the But what does this mean? other a supermodel in Pretoria, enraged and shocked the nation. Well, there are two Changing the The result has been a pitch of competing interests that the public outcry seemingly rare in mechanism of bail serves. our society so jaded by violence On the one hand, the Rules and scandal. Against this accused has his/her rights backdrop we fixated ourselves to personal liberty. These The Legal Practice upon the trial of Oscar Pistorius, are exceptionally important Bill and the Future of and to a somewhat lesser extent rights, especially upon those accused in Anene considering that in the Our Profession Booysen’s case, in a manner the absence of a conviction by fervour of which I have never a court of law, an accused Page 4 experienced before. Intense is constitutionally presumed media scrutiny, headlines, live to be innocent. The law tweets, and live broadcasts all cannot punish those who it fuelled our collective has not found to be guilty. Class schadenfreude. As such, as Mahomed J states in S v Acheson, ‘an Except that these were not trials. accused person cannot be illustrates exactly this tension Actions They were bail hearings. Such kept in detention pending his trial albeit with a smidgen of was the force of our fascination as a form of anticipatory The Case of Silicosis melodrama. But I believe it also with Oscar’s downfall that his bail punishment.’ illustrates the potential danger of Page 6 hearing became the most publicly subjecting the institution of bail to scrutinised in the history of our On the other hand there are the the kind of public pressure that criminal justice system (if you’ll interests of society; for example, we saw with his hearing. Bail is indulge my potential hyperbole). that the accused should stand not a mechanism of crime control. As unavoidable as this situation trial, and that there should be no The It is ill-equipped to respond to is, it is not ideal as the nature and interference with the public pressure in the face of grim purpose of a bail hearing is very administration of justice. If it is crime statistics and the truly Kramers different to that of a trial. likely that an accused will attempt shameful scourge of gender- to evade his/her trial or if it is based violence in this country. It See who won the A bail hearing is considerably less likely that an accused will attempt formal than a trial. Evidence need to destroy evidence or influence is inevitable that these factors Kramerian version might influence judicial policy, but not necessarily comply with the witnesses, then of course the in a rights-based constitutional of the Oscars strict rules of oral or written interests of society are served by democracy justice is not served evidence. But there is a remanding him/her in custody Page 10 when we let the mechanism of fundamental difference between until a conviction or acquittal is bail quench the public’s thirst for the objective of bail proceedings reached. vengeance. That interest is and that of trials. In a bail served through sentencing upon application the enquiry is not The interests of justice are Where To really concerned with the served when these two criminal conviction; it should not bleed into the enquiry regarding question of guilt. That is for the competing interests are the award of bail. trial court to decide. Yet, balanced. This is neatly Work ironically, this is exactly what the contained in s 35(1)(f) of the The horrific degree of violence in public wants to know—perhaps Constitution: ‘Everyone who is A follow-up with South African society may appear the only thing the public wants to arrested for allegedly committing to be sinking the ship that is [the Muhammad Ebrahim know. What the court is trying to an offence has the right to be credibility of] our criminal justice ascertain in a bail hearing—and released from detention if the on doing articles at system, but I submit that in spite this is made clear by s 60 of the interests of justice permit, subject of this, or rather, because of this, Criminal Procedure Act as well as to reasonable conditions’. ENS it would be the wrong thing to do by the Constitutional Court in S v to stop bailing. AS Page 11 Dlamini; S v Dladla and Others; S The case of Oscar Pistorius

Quidquid latine dictum sit, altum sonatur 123

Waiting on a Revolution Will Anene Booysen be Our Amina Filali or Jyoti Singh Pandey?

By Belinda Hlatshwayo & Farai Chikwanha

condemned Anene’s rape and murder in a statement issued on the 13th of February. In the statement, an alarming statistic was sourced from the South African Medical Research Council: a woman is raped in South Africa every four minutes. As disturbing a fact as that is, much more unnerving is the fact that the majority of rapes go unreported.

In the Constitution are entrenched our inherent rights to human dignity, freedom of movement, life and, freedom and security of the person. Anene has not been the only person to be denied these rights, but the memory of her especially horrifying experience has galvanized the population. Strong censure followed her death, taking the form of petitions, vigils and marches, such as UCT’s very own “We Say Enough!” protest march on the 20th of February, calling on the government to take a stronger stance against violent crimes. Even within the legislature, opposition leader Lindiwe Mazibuko called for parliamentary debates Rape: A crime most heinous because of this is the prevailing attitude within large and hearings. Dumisani Rebombo, who its invasive nature. The mere idea of pockets of South African society that raped a girl when he was 15, but went on rape, however, is not accorded the same sexual violence is not something to be to become a gender equality activist was amount of repugnance. Students have regarded with the levels of revulsion quoted in The Guardian (UK) saying, “We sometimes remarked, as we stumbled out required by human decency. With the don’t need a debate, we need action... We of lecture theatres after a particularly alarmingly high prevalence of sexual need education.” At this point, the unpleasant exam, “Well, that was a mind offences throughout the country, it is clear question is begged: will public censure rape.” On television, comedians or that the issue is far direr than we are have enough sway on the legislature and programme script writers who don’t care willing to, or perhaps even capable of, the executive to initiate the enactment of much for political correctness will insert a appreciating. legislation and creation of policies which rape joke into their acts or particular will ensure, if not an end to such episodes. Rape describes a horror that On the 2nd of February, 2013, Anene malefactions, at least a decline in the most people cannot fathom and will Booysen was found after she’d been number of occurrences? hopefully never have to experience. raped, mutilated and left for dead. She Unfortunately, it has become quite died later on that day. President Zuma Before January 2013, according to Article normalized and the word is used so described the crime as “shocking, cruel 475 of the Moroccan Penal Code, the flippantly that the sheer horror of the and most inhumane.” The United Nations “kidnapper” of a minor had the option of crime is oftentimes overlooked. Added to marrying his victim in order to escape prosecution, the aim of such a provision being the preservation of the honour of the woman’s family. In March, 2012, 16 year- old Amina Filali chose death over spending the rest of her life with her rapist. Her suicide resulted in mass hysteria, online petitions and protests. Activists increased pressure on the government to repeal the law. In January, 2013, it was reported that this provision of the penal code would be removed. The invalidation of a law that was, in actual fact, rarely used was still welcomed by women’s rights groups.

In India, the Criminal Law (Amendment) Ordinance was passed on the 3rd of February, 2013 in response to protests, Page which unfortunately turned violent, that occurred after the brutal gang rape of Jyoti Singh Pandey in December, 2012. She

2 died 13 days after the attack, having

sustained horrific injuries. A report had been submitted by a judicial committee 412

headed by the Chief Justice of India indicating that failures on the part of the police and the government were the main cause behind THOUGHTS FROM THE violence against women. The ordinance gave effect to many of the recommendations in the report, including the changing of “rape” to “sexual assault”, broadening its legal definition to include other forms of penetration, regardless EDITOR of their extent, and the introduction of an aspect of gender neutrality. Why We Write By Kwadwo Ofori Owusu In South Africa, the 2007 Sexual Offences Act, enacted in response to the Constitutional As law students we read—we read a Court’s decision in S v Masiya changed the lot. We have a lot to read, and once definition from a gendered one, which ignored we’ve read it all, we read some more. other vulnerable groups, to one that is gender- We have Readings, with a capital ‘R’. neutral and not instrument-specific. This has, And it is suffocating. however, solved only one in a plethora of issues facing the scourge of sexual violence in South In truth, we must read [Professor Anton Africa. Definitional elements do indeed provide Fagan can tell you exactly how much to greater protection to a wider section of the read on the daily]. But useful—indeed population, but this is only once the damage indispensible—as it may be that we has been done. What is needed on the part of take the opportunity to learn from, the government is a large-scale movement, grapple with, and apply that on which it initiated and implemented in earnest throughout seems we spend every waking hour of all echelons of society, calling for mandatory our youthful lives, there is perhaps a education about the evils of sexual violence and failure on the part of law students to exploitation, and instilling an unerring respect internalise all that reading and for the physical autonomy of all human beings. transform it into original or independent thought. Or perhaps the failure is on Public outcry forced the hands of lawmakers in the part of the Faculty. Wherever the Morocco and India to provide more protection blame lies, it can hardly be denied that for women against perpetrators of sexual we seldom take to the old pen and violence. Will South Africa walk a similar path parchment where that act is not and champion the cause of Anene Booysen? accompanied by the question, ‘How The law accords great respect to the physical much of the final mark does this count for?’ And write unpopular things—though do autonomy of all individuals, but it is society itself try to keep them within the bounds of which needs to follow suit. President Zuma section 16 of the Constitution. You have proclaimed that South Africa was outraged over We miss the point. We don’t write for [almost] every right to write and say Anene’s death and spearheaded the launch of marks…all the time. We write to tell stories things people don’t want to read or the ‘Stop Rape’ Campaign, an initiative aiming of fact and fantasy, and to bring coherence hear. Addressing an audience in our to educate over 10 million learners in South to our own wild and uncontrollable thoughts. very own (and very cold… seriously) African schools. However, will enough be done LT1, Mr Justice Zak Yacoob said: ‘If we to eradicate sexual violence? What of the rest Often our unwillingness and inability to assume that the purpose of of South Africa? The Guardian has reported share our ideas in writing are based on the [constitutional] freedom of expression that an India-style display of disgust and protest fear of the insignificance of our own protection is to protect minority in the streets is unlikely to occur in a country thoughts coupled with the perceived expression, then it cannot be that the where rape has become so normalized. We unimpeachable authority of those who have moral outrage of the majority can may think to ourselves in turn, “What good will written before us. ‘If Voet has said X and legitimate the suppression or an hour-long march on a hot summer’s day or a Corbett CJ has said Y, who on earth am I to invalidation of the minority view.’ candlelight vigil on UCT lower campus achieve say Z?’ we think. But this is silly. It is true in the long run?” But when faced with what that not all opinions are equal, yes. But it is Sometimes the boni mores are begging Lindiwe Mazibuko calls “a silent war against also true that all opinions, no matter the to be offended. Sometimes society is women and children,” a war that has hundreds identity of holder, ought to be tested. And in itching to be scandalised, or at least to of thousands of casualties every year, what else applying your mind to a question that has have its convictions challenged. When can we do but turn our voices into the most vexed many minds before you, what we write what we like—what is in our powerful of weapons? AS matters is the thought that has gone on in minds—we allow for the reader to make your head regardless of whether the result her own choices about the worth of our is a concurrence with or a usurping of the words. We engage the reader in a ‘truths’ of the so-called Authorities. dance, which either ends in a unity of spirit, the envied state of being ad idem, Sounds So write. Whether yours is to be the or in a disunity which is equally voice of the great dissenter, in the enriching in its lack of finality and its vein of Sachs J, or to put each and ability to stir up passions… Profound? every one of your thoughts to Continue the electronic paper in blog form, as And so we write, because writers are some constitutional experts are wont the originators of progress. We write Discussion to do, write. The late novelist and because our thoughts are happening father of African literature Chinua now, and because they document Achebe put it succinctly: ‘If you don’t tomorrow’s past. altum.sonatur.uct like someone’s story, you write your own.’ And write because you get good at it. @

This is my first editorial for Altum 3 @AltumSonaturUCT Write because some damn-givers will Sonatur and it’s far from perfect. I know care to read, and because you may this. But I reckon I’ll get better—I must. just win others over to the damn- And because I must, I write. AS givers’ cause. Page Page 123

Changing the Rules The Legal Practice Bill and the Future of Our Profession By Fanelesibonge Mashwama

Justice extensive regulatory power over the overcome this problem. legal profession i.e. the officers of the court, the Bill undermines this fundamental On the question of fees the LSSA’s precept of the South African legal system. submission presents two reasons for objecting to the admittedly vague clause 35 Under the Bill in its present form the of the Bill. The submission highlights that Minister would have extensive powers over currently legal fees are regulated by the the LPC. These powers include Rules Board for Courts of Law in matters of appointments to the LPC, the potential to litigation, and in non-litigious matters are dissolve the council under certain subject to the checks of the various law circumstances and vast regulatory societies. While that is entirely true it is the authority. In its latest submission to the second response by the LSSA which should National Assembly’s Portfolio Committee be alarming to all law students. Paragraph on Justice and Constitutional Development 4.10.4 of the LSSA’s submission terms the LSSA launches a robust attack on what section 35 “unwarranted interference” on the majority of its members view as the part of the executive. It is precisely rapacity on the part of the executive (it because of this kind of arrogance that must be noted that the Black Lawyers members of the legal profession have Association generally supports the Bill, acquired the reputation of being dishonest while it enjoys mixed favour from the and avaricious individuals. We cannot claim advocates’ profession). The submission a desire to serve justice, acknowledge that goes as far as to suggest a blanket legal fees are prohibitively expensive then provision in the Bill to curtail the regulatory go on to call attempts, granted really poor power the Minister would yield, allowing the attempts, aimed at rectifying the situation Minister to act only through consultation “unwarranted interference”. with the Council in the majority of circumstances. The same flawed thinking pervades the In August 2009 the first working draft of Considering some of the President’s responses to clause 29 of the Bill. The the Legal Practice Bill was published by comments to the effect that the submission rightly points out that the clause the Department of Justice and Constitutional Court’s powers should be is too vague to support. However it then Constitutional Development. This reviewed, which were covered at length in goes on to list all the current measures in document purported to restructure and the 1st Issue of the 3rd volume of this place to guard against the very same transform the legal profession in South newsletter, it is becoming increasingly problem the submission acknowledges Africa and nearly four years on the most apparent that not all of our state’s exists, like the mandatory 24 hours of pro recent version of the Bill still aspires to instruments are as sophisticated as our bono work per annum for attorneys. these virtuous ideals. We should take an judicial system. This is more than sufficient active interest in the progression of the justification for us to join those who oppose The LSSA is legitimately indignant at the Bill through the legislative process the Bill on the grounds that it undermines thought of the Legal Practice Bill coming because the shape it eventually adopts the separation of powers, an ideal essential into effect in this form. Too much detail is will determine the framework under which to democratic checks and balances. missing and the Bill clearly undermines most of us will spend our professional judicial independence. However what is careers. This piece takes a cursory look Yet despite this, the Bill in conjunction with more worrying is the profession’s apparent at the two most contentious issues the LSSA’s submission to the National resistance to change. It is this rigidity and surrounding the Bill. Assembly have the joint effect of exposing ultra-conservatism which has tarnished the the desperate need to enact lasting change reputation of arguably the noblest pursuit – The Bill essentially proposes the creation in our profession. The Bill proposes two the pursuit of justice. We can do more than of a Legal Practice Council (LPC) which vague policy measures to increase access 24 hours a year! AS would serve as an amalgamation of the to justice. First it gives a terribly incomplete Law Society of South Africa (LSSA) and description of the the General Council of the Bar (GCB). It community service contains a host of regulatory changes to legal practitioners the way the legal profession is presently would be expected to run, ostensibly to increase access to legal fulfil were the Bill to services for the South African public as come into effect well as reduce barriers to entry into the (Clause 29) and profession. second it briefly ventures into the fee The Bill is criticised, by the LSSA structure of legal amongst others, primarily for undermining practitioners (Clause the constitutional doctrine of the 35). The LSSA rather separation of powers. Section 165 (2) of paradoxically accepts the Constitution guarantees the the need to increase Page independence of the judiciary; it access to justice for determines that the courts will only be the average South subject to the Constitution and the law, African and then goes

4 protecting them from the capricious on to advocate

whims of the executive. The argument primarily status quo then is, by affording the Minister of policy measures to 123

The Life of a Legal Legend An Homage to Justice Zak Yacoob By Maeve MacGlinchey

There is no shortage of words that come This whirlwind trip through Yacoob’s to mind when one thinks of Justice Zak impressive legal journey illustrates just Yacoob; from diligence to passion he is why he is seen as an inspiration. Yacoob undoubtedly one of the most inspirational has commented on the pressure facing legal figures that South Africa has seen. If him during his time as a judge in the one was to list the positions he has held Constitutional Court, saying that it was and the committees on which he has always “challenging” because "the served, it would read like a directory. In responsibility of writing [judgments] and researching this legal legend, I discovered the idea that every judge and every lawyer that he is not only inspirational for what he in the country is bound by what you write has achieved but also the circumstances is a frightening one". The responsibility of which he overcame in a career of setting precedent was not one which he distinction. took lightly and he has always done his utmost to ensure that the Constitution is As a result of meningitis, Yacoob has been accessible to all. This is a goal which he blind from the age of 16 months and thus doesn’t plan to stop pursuing, despite the attended Durban's Arthur Blaxall School fact that he will no longer don his green for the Blind for 10 years, from 1956 to robes. In the coming years, Yacoob plans 1966. He then went on to complete a BA to teach constitutional law in universities followed by an LLB in 1972 at the former around South Africa, thus passing on to University College, Durban (now the the future lawyers of our country the University of KwaZulu-Natal). He knowledge and skills that he has gained subsequently practised as an attorney through his years on the Bench. In this Roux v Dey matter. and, in 1973, was admitted as an way, he will hopefully influence many law students to aspire to be like him once they advocate and practised as a junior counsel Even off the bench, Justice Yacoob has not graduate, with the result that the future of until 1991. Throughout his career in shied away from his duty to ask the hard South Africa will be in good hands. practice he represented people who were questions. Recently he has made news for being prosecuted for contravening the questioning the fairness of the process of oppressive legislation of the Apartheid era Known for his powerful legal mind, razor- the Judicial Services Commission and for and yet amidst all of this, he ran a sharp wit and fierce independence, it is no suggesting an increased term in office for successful commercial and general legal wonder that law students enjoy reading his justices of the Constitutional Court. practice. He took Silk in 1991 and in 1998, judgments both for their academic rigour was appointed to the Constitutional Court and for their disarming style. Among the Yacoob is a sagacious man with a strong by President Nelson Mandela. He retired most notable decisions penned by Yacoob sense of fairness who has defied and from the Constitutional Court in January J are his majority judgment in the overcome the challenges he has faced 2013. celebrated Grootboom case and his throughout his life. On his retirement from poignant dissent in the controversial Le the Constitutional Court, Yacoob said that he was not the sort of man to miss things, but the same can’t be said for South Africa. It is certain that his presence will be missed not only by the Constitutional Court judges with whom he sat but also by the rest of South Africa, the ultimate benefiter of his strength and determination. AS

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Class Actions The Case of Silicosis

By Alex Spoor

occupational disease in 1830, though not provided compensation under COIDA respiratory problems from breathing in maintained their common law rights to dust were known in Ancient Greek and claim damages against their employer. Roman times. In 1912 South Africa became the first state to compensate The result of this case has been the filing silicosis as an occupational disease. of two independent notices of motion in This was through the Miners’ Phthisis the South Gauteng High Court for class Allowance Act of 1911, which created certification in preparation for a class a fund to which mine owners action. Class certification is a preliminary contributed, to compensate step to the prosecution of the underlying mineworkers. claim, the basis of the class action being that individual claims will be replaced by South African legislation on the class claim. occupational compensation has developed along two different lines the Class actions in South Africa are relatively results of which today are the novel, with a completely underdeveloped Occupational Diseases in Mines and jurisprudence in South Africa (See Works Act, 1973 (ODIMWA) Professor Wouter De Vos’ inaugural specifically for mineworkers, and the lecture). This is because prior to 1994 our Compensation for Occupational law did not recognise class actions. This Injuries and Diseases Act, 1993 position was departed from by the (COIDA), which is broader and covers enactment of section 7(4) of the Interim workers in all industries including Constitution of 1993. A chief argument in commerce and services. These favour of class actions is based on access legislative instruments create a form of to justice given economies of scale no-fault liability ensuring employees involved in a mass claim. some basic protection against The compound silica is formed from silicon occupational injury and disease. Before and oxygen atoms. Since oxygen and silicon this, the only protection afforded to an In one of the applications before the Court make up about 75% of the Earth, the employee was under the common law some 17000 claimants are listed with compound silica is quite common. It is found delictual claim for full loss and damages. class representatives including members in many rocks, such as marble, sandstone However, the defence of contributory from the Eastern Cape, Lesotho, and in some metallic ores. The cutting, negligence on the part of an employee Botswana and Mozambique. There are breaking, crushing, drilling, grinding, or was a complete defence to this action. some 30 respondent gold mining abrasive blasting of these materials may companies. A study by Wits in 2009 said produce fine silica dust. that there are over 288 000 cases of ‘the respondent gold compensable silicosis in South Silicosis (miner's phthisis/potters Africa. rot) is the most common occupational lung disease mining companies knew of The litigation alleges that the worldwide. It is caused by the respondent gold mining companies inhalation of crystalline silica dust. the dangers posed to knew of the dangers posed to miners When inhaled the dust particles by silica dust for more than a century can embed deeply into the tiny miners by silica dust for and claims they are liable for 12 alveolar sacs and ducts in the specific forms of neglect and lungs, where oxygen and carbon endangerment. Foremost among dioxide are exchanged. Once more than a century’ these allegations are wilful disregard embedded the lungs cannot clear and/or failure to execute almost all of out the dust by mucus or coughing. The Up until the 2011 decision of the the steps mandated in regulations and body responds by creating fibrous, onion Constitutional Court in Mankayi v legislation designed to protect miners layered nodules of collagen around the Anglogold Ashanti, it was considered trite from silica dust. damaged lung tissue. law that the common law right to recover damages for occupational injury or disease Approval of a class action structure for the The effects of exposure are cumulative, from negligent mine owners had been victims of the silicosis epidemic would be resulting in the lung becoming filled with extinguished. This followed from the fact an unprecedented means of recovery for fibrous connective tissue, unable to function that COIDA had extinguished such a right South Africa. The litigation opens exciting properly. Prolonged exposure may result in as early as 1934, with the introduction of and interesting avenues regarding the severe disabling shortness of breath, cough, the Workmen’s Compensation Act (now law. Students who are interested in weakness, and weight loss, often leading to repealed and replaced by COIDA). playing a part in the litigation, primarily

Page death. Inhaling silica further puts a miner at through research, should email Alex greater risk of contracting pulmonary The decision in Mankayi involved the Spoor at [email protected]. AS tuberculosis. Silicosis is an irreversible interpretation of and interaction between condition with no cure. COIDA and ODIMWA, the court finding 6 that a narrow band of employees Silicosis was first recognised as an (mineworkers with lung disease) who were 123

Sensationalism and Accountability A Reflection on the Press in South Africa By Matilda Nengare

In 2011, government incurred the full wrath press. The Secrecy Bill has already of civil society when it proposed the affected the country’s ranking on the world Protection of State Information Bill which press freedom index, with a drop from garnered almost instant infamy for its wide- number 43 to 53. The press freedom index reaching and obscure measures, deemed published by Reporters Without Borders draconian and reminiscent of apartheid era reflects the ‘attitudes and intentions of legislation, imposing severe penalties on governments around the world toward those who violated it. journalistic freedom.’ The fear expressed by many activists is that this significant Colloquially referred to as ‘the Secrecy Bill’ drop is simply the first sign, and effects will the proposal was roundly criticised for its be even direr for journalists on the ground potential impact on freedom of expression and will emerge later. South Africa is one and access to information. The campaign of the leading countries on the African against the Bill was led by Right2Know, a continent and instability causes concerns coalition of nearly 400 civil society about its role as the leading African state organisations and community groups, and leading investment target for overseas supported by the influential COSATU and companies. SANEF (South Africa National Editors’ Forum) amongst others. The furore refused The proposal and adoption of the Bill to blow over, receiving unprecedented highlights the underlying and fundamental levels of interest at all levels of society. tension between the government and the into the press, with uncorroborated reports Petitions, forums, debates, and protests: press. The private press in South Africa is and sweeping and unconfirmed statements much ado was made. Regardless, the Bill monopolised by the giants: making their way into national papers. Each was passed late last year, 2012. Activists Avusa, Naspers, Independent News and week, reports of government overspending have threatened to take the fight all the Media, and CTP/Caxton. The relationship and dishonesty are splashed on the front way to the Constitutional Court to vindicate between the ANC government and the pages. As much as the press has a duty to the rights of journalists and whistle-blowers press has been worryingly antagonistic and report on the ills of society, it also has a and protect the rights of access to increasingly toxic. corresponding duty to report honestly and information and freedom of expression as not simply to gain favour and sell papers at guaranteed by ss 32 and 16 of the The media has criticised the ANC for the expense of the truth. Sensationalism is Constitution respectively. undermining the gains of the apartheid a particularly murky rabbit hole down which struggle and betraying the interests of the to scamper, as the Murdoch scandal Given South Africa’s relative youthfulness population. Weekly reports of corruption, overseas has more than demonstrated. as a democratic state, the uproar is tender-scandals and cronyism abound. understandable. Press freedom in Africa The press has criticised the Secrecy Bill for The role of the press in the country is that of has a notoriously poor reputation, and in its ‘palpable hostility’ toward journalists and advocating transparency and honesty. It light of South Africa’s repressive past, the attacked the Bill as an attempt to silence ought to be one of the methods through apprehension raised by the Bill was the media for refusing to be complicit in which the government can be held reasonable and necessary. As with many governmental wrongdoing and cover-ups. accountable. The role of the media ought to civil liberties, South Africa has what could The ANC has hit back, accusing the media be legitimate and cannot be confined to be generously termed a chequered history of adopting an unnecessarily staunch ‘anti- simply attacking the ruling party and relating to press freedom, with censorship ANC stance,’ and ‘an astonishing degree promoting ulterior motives. A healthy press featuring prominently during the apartheid of dishonesty.’ The ANC has been is desirable, to act as a facilitator of healthy years. It would be unfortunate if regressive embarrassed by a series of revelations in engagement between the citizens of a state measures were taken and constitutional the media that have inevitably alienated and the government. The power of the liberties violated. the press from the ruling party which has media in shaping public policy is great and concluded that the press is working to ought not to be abused. Attacking the It seemed as though, no sooner had a undermine it. government incessantly and dishonestly bright and shiny new Constitution had been could lead to a loss of credibility for the drafted, signed and fêted the world over for The head of the Journalism Department at press. The press must realise its inherent its revolutionary nature and cohesion, was the University of the Witwatersrand is on duty to the citizens of the state, and the Parliament moving to undermine the record addressing the claims by the ANC. least it owes them is honesty, transparency fundamentally enshrined rights, specifically and fairness in reporting. those of press freedom and access to ‘Has there been a problem with accuracy?’ information as detailed in ss 16 and asked Anton Harber. The full effects of the Secrecy Bill are yet to 32. The Bill of Rights guarantees the right ‘Absolutely.’ be ascertained. The hope is that they will of every citizen to freedom of expression, ‘Has there been a reluctance to apologise not be too adverse and that constitutional which includes freedom of the press and timeously and appropriately? No doubt.’ values will be upheld. The press cannot be media, the freedom to receive or impart guided by hidden interests and report in a information or ideas, freedom of artistic Such candour is commendable. The press, manner influenced by political or ulterior creativity, academic freedom, and freedom like government, must be accountable to motivations. The press must step up to its of scientific research. Although no rights the citizens of the state. The press has role and exercise its power in a responsible are absolute and non-derogable, they been staunchly supported by the public in and honest manner. This might call for ought not to be violated without good and relation to the Secrecy Bill. The question some introspection from the press, an constitutionally valid reasons. which must be asked relates to the honest appraisal and a recommitment to 7 responsibility borne by the media in advancing the democratic mandate, and not South Africa is arguably the hub of media ensuring that it meets its obligations to the simply selling papers using ambiguity and in Africa, with an admirable level of consumers. An alarming amount of non-facts. AS freedom and diversity reflected in the sensationalism seems to be making its way Page 123

The Reasonableness of Brutality An Exposition on Section 49 By Safura Abdool Karim

political world. It basically is the provision grounds. This means that mistakes or regulating the use of force in effecting an beliefs of the policeman would not be arrest by providing the police with a clear sufficient to excuse his conduct. explanation of when and in what circumstances force may be used. What bearing does this have in light of the recent case of the taxi driver, Mido Macia, In looking at the section, let’s keep one and his encounter with the police? A fair very clear thing in mind, this is about argument could be made that there is none. effecting arrests against people who have If one thinks back to what happened just a not been tried and must be considered few months ago at Marikana, it does appear innocent until otherwise proven. that for all the squawking law does, it amounts to nil in practice. That said, the old section 49 allowed for lethal force to be utilised in effecting an Then again, the policemen involved in the arrest provided that not using force would death of Macia have been charged with result in a failure to arrest. Looking at the murder. Undoubtedly, the accused will provision, it seems like a rather peculiar attempt to raise a defence from section 49. tussle of values. Imagine the thought The issue is whether such a defence would process for a moment: ‘oh no, he’s getting be successful. All we have at this moment – away and we won’t be able to hear his much like in the week following Marikana – side…let’s kill him.’ Obviously, the is a video of what one person saw and a Constitutional Court was not going to let hundred attest to have seen. that fly. Regardless of how many people saw what, In the criminal law, the police are held to a It was in fact Kriegler J that felled the beast the chances are that the court will have to different standard than an average citizen. of so-called ‘justifiable homicide’ in the rely on the ipse dixit to tell them one thing, Given recent events, one would venture to case of Ex Parte Minister: In Re Walters. and one thing alone; the actions of the think that it’s a standard that excuses any The old section 49(2) was held to infringe policemen – regardless of motivation – were and all conduct. Fair enough, there have the accused’s right to life and dignity and unreasonable. One might often choose to been a series of mixed messages between this infringement could not be justified and hedge and shy away from any authoritative ‘shoot to kill’ and Walters but let me be so half the section – the most onerous half statement regarding the dreaded shadow of clear – at the very beginning of this story – – was invalidated. That still left section the reasonable man but think for a second, policemen do not have more of a right to kill 49(1) which, thanks to the reasonableness how could their actions be considered than anyone else walking around. The rest inquiry attached thereto, remained valid. reasonable? of it may be confused and conflicting and However, Kriegler J (G that he was) ultimately nonsensical, but that stark truth created an entirely new set of ‘guidelines’ There have been some not-so-subtle has always been there. Now settle in for the use of force which were later (and references to police brutality during the comfortably, the long and arduous tale of almost verbatim) turned into the new Apartheid era and the echoes of it we see in section 49 begins… section 49. the police force today. I wonder if, even then, this would have been considered A certain professor who once taught us had I won’t bore you with all the details but the ‘reasonable’. a seemingly puzzling fascination with audi Sparknotes version is that any degree of alteram partem (hear the other side). force that may be used must be reasonably The day after the story hit the newsstands I Indeed, it was an off day where we did not necessary and must be proportional in all was in an Admin Law lecture. Someone put hear him utter the phrase at least five times circumstances. Lethal force can still be their hand up and asked what remedies lay in a lecture. He used to say that every used but is limited to situations of private in administrative law in respect of the element and rule of procedure could be defence (an accused’s belief based on police’s action. Professor Corder’s answer linked back to audi alteram partem and in reasonable grounds that it is necessary to was ‘…nothing really. The usual remedies hindsight – or at least in this case – it’s true. use deadly force to protect himself or allow for a reversal of action taken but he’s others around him), where future death or dead; that can’t be undone.’ AS To hear the accused’s side, it’s slightly bodily harm may ensure or where an imperative that he [or she] actually be offence is in present at a trial; and so we develop this progress and idea of arrest to make sure that the guy there is a pitches up at his trial. Of course, not all bad reasonable guys want to attend a trial, even though it’s suspicion that their opportunity to present their side, which life-threatening is why sometimes an accused will resist the violence might police’s attempt to arrest him. ensue.

It is precisely in this not oft-occurring The upshot is that Page scenario that the antiquated notion of ‘use the only way a of force’ rears its unconstitutional head. It police officer has most popularly – at least in legal circles could justify the – been referred to as section 49. This use of deadly 8 section of the Criminal Procedure Act has a

force would be on convoluted history in both the legal and purely objective 123

To the Point

South Africa Attractive Destination for China M&As Supplied by Edward Nathan Sonnenbergs

“The transaction involved many extraordinary aspects, including having to navigate the extensive restrictions and matching offer provisions contained in the implementation agreement Metorex had concluded with Vale S.A., which made it challenging to procure access to information and facilitate the Jinchuan offer. To complicate matters, a number of material Metorex shareholders had given irrevocable undertakings to support the Vale S.A. offer. The result was a very rare bid by means of a ‘competing’ scheme of arrangement (certainly a first under the new Companies Act, 2008 which had only just come into effect on 1 May 2011),” he says.

In so far as De la Harpe is aware, the Jinchuan offer was also the first scheme of arrangement by a listed company to be proposed and approved entirely under the new Companies Act, and this required consideration and compliance with the The diversity of the South African mining not going to focus on one commodity and provisions of the Companies Act and the industry, as well its world class banking are looking to diversify in iron ore, new Takeover Regulations without the and finance systems, makes the country manganese and gold, amongst others.” guidance of precedent. Catering for the an ideal base from which Chinese firms new appraisal rights, which gave objecting can expand their investment into Africa. He refers to the recent Jinchuan / Metorex shareholders the right to require Metorex to deal whereby Jinchuan’s R9.1 billion acquire their shares for fair value, required This is according to Otsile Matlou, Head of acquisition of SA-based mining house some finesse to deal with the timing of the Mining at ENS (Edward Nathan Metorex made headlines throughout 2011 exercise of the rights and possible later Sonnenbergs), who says that South Africa and was named Dealmakers’ Deal of the withdrawal. Credit goes to Jinchuan for is increasingly becoming an attractive Year in March after being judged for its managing to procure all the required destination for Chinese investment. innovation and creativity, the deal size, the regulatory approvals in various complexity of the matter, its value and jurisdictions, including South Africa, the “South Africa has over 150 years of regulatory approvals. DRC, Zambia and the Peoples Republic of experience in mining and is among the top China, and implementing the transaction in five best banking systems in the world. According to Richard De la Harpe at ENS, January 2012, which evidences how Furthermore, we arguably have more who was the South African corporate law seriously it is committed to establishing a mineral diversity than any other country in adviser to Jinchuan, the transaction platform for its mining operations in Africa. the world – mining over 50 economic entailed a competing offer by Jinchuan Matlou says the increased interest of the minerals within South African borders. Group Limited (through a wholly-owned Chinese in Africa has significant These factors are very important for subsidiary) to acquire the entire issued advantages for South Africa, if the South Chinese investors,” he says. share capital of Metorex Limited by way of African authorities balance labour a scheme of arrangement in terms of regulation and economic growth. “Foreign In addition, Matlou says the recently section 114 of the new Companies Act, Direct Investment is always good for an amended Regional Headquarter Company 2008 and a separate offer to the holders of economy and is often a catalyst for tax legislation provided a favourable tax options in terms of Metorex’s share growth.” position for foreign companies to set up incentive schemes. their regional headquarters in South However, he explains that the Chinese Africa. It has made it even easier for At the time of Jinchuan’s approach to often tend to import their own country’s Chinese firms to use the country as a Metorex, Brazilian-based Vale S.A. had human capital for projects, in order to launch pad for the rest of their African already made an offer to acquire Metorex maintain control. “This could potentially projects. “We expect that there is going to by way of a scheme of arrangement for pose a serious threat to local job creation. be an influx of Chinese investment into approximately R7,5 billion, which presented The trick is to balance job creation and Africa, through South Africa, as a result of many challenges that had to be dealt with economic growth” he concludes. this.” under extremely tight time constraints. Jinchuan only gained access to Metorex’s Matlou, whose firm has advised on information on 17 June 2011, the same day To the Point is a segment sponsored by mergers and acquisitions throughout that Metorex issued the Vale S.A. scheme Edward Nathan Sonnenbergs (ENS) to

Africa, says ENS has already seen an circular, convening the scheme meeting to provide students with the most up-to- increasing interest from China, specifically approve the Vale S.A. offer on 22 July date and accurate legal knowledge and 9 in African mining ventures. “The indication 2011. It took intense effort and diplomacy opinions on current happenings in the is very much that the Chinese are going to for Jinchuan to make its superior bid on 5 field. invest in a diverse mining sector. They are July 2012. Page Page In the spirit of Oscar month, I thought Best Actor it might be appropriate to dish out some of our own Oscar nominations. 1. Harry Potter and the My sincerest gratitude goes out to Philosopher’s Stone – Prof Hugh those students who assisted me in Corder (you can decide which the nominations, and sincerest character) apologies to the nominated “victims” 2. James Bond: Die Another Day – who might feel somewhat denigrated Prof Richard Calland – know that this is all in good faith. 3. Kramer v Kramer – Prof Dennis Davis v Prof Anton Fagan And the nominees are… 4. The Producers – Prof Jaco Barnard-Naudé Best Actress 5. The Aristocats– Prof Jonathan Burchell 1. Emma– Prof Helen Scott 2. Ouma se Slim Kind – Prof Tjakie And the award goes to...Calland, Naudé Richard Calland. He’s always on 3. Searching for Sugar (wo)man – time, perfectly groomed in a three Prof PJ Schwikkard piece suit, has that very determined 4. Eat Pray Love – Ms Nikki strut down the steps of LT 1 and one Campbell cannot forget the suave and 5. A Series of Unfortunate Events– distinguished British English accent, Dr Amanda “RAF v Vd Merwe” that, let’s face it, is plain sexy, no Barratt two things about that. However, there was the incident of the “Access And the award goes to... Prof to Information” short film and that Tjakie Naudé for her leading role in floral shirt. Nonetheless, definitely a “Ouma se Slim Kind”. Her exposition deserving candidate. on the benefits of spending student loans on motorcycle trips through Best Actor in a supporting role Africa, and her heartwarming recollections of the joys of growing up 1. Harry Potter and the in the Karoo, leave the audience with Philosopher’s Stone – Prof a sense of calm in the exploration of Anton Fagan (you can decide the always confusing and which character) ambiguously drafted Consumer 2. Alice in Wonderland – Prof Protection Act. And who can forget Robin “rabbit I own you” Evans- the classic tagline…’mooooora Jones debitooooooris’ 3. Pitch Perfect – Prof Pierre de Vos Best actress in a supporting role 4. The Talented Mr Ripley – Prof Alan Rycroft 1. The Fast and the Furious – Ms 5. The Godfather – Prof Dale “the Fatima Osman Hutch” Hutchison 2. James Bond: Skyfall, for her role 6. The Departed – Prof Wouter as “M”– Prof Anne Pope “the” Vos 3. The Iron Lady – Prof Hanri Mostert And the award goes to... Prof 4. Love and Other Drugs – Ms Kelly Wouter “the” Vos. Where to start? Phelps He is the genius that inspired 5. Blue Crush - Prof Kathy WOUvember, he is dedicated even Idensohn after retirement, he’s efficient, organized and gets to the point very And the award goes to… Ms Fatima quickly – all in all a law student’s Osman. Ever tried speaking faster dream lecturer. than the speed of light? Yes ladies and gentlemen, it is indeed possible! Compiled by Ernst Muller And you in the blue shirt sitting in the back, do you have anything to add? No? Well then it’s settled, it’s self-study.

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WHERE TO WORK Articles at ENS (Edward Nathan Sonnenbergs) Compiled by Resheditswe Kgomo

We’ve all heard the rumours about the articles would be fairly boring. I was proven experience of completing articles with wrong as I have not had a boring day yet. Edward Nathan Sonnenbergs, but here is Something is always happening, and it is a refreshing personal account of a usually urgent! Candidate Attorney at ENS, and one who is fresh out of UCT! AS: Has the experience lived up to your expectations thus far? Altum Sonatur was able to track down past Altum contributor Muhammad Ebrahim ME: Thus far doing articles has exceeded (LLB ’12), who kindly shared with us what my expectations. I am fortunate enough to his experience at the law firm has been work in a very good team and on like these first few months. exceptionally interesting matters. I have been involved in quite a lot of public law AS: What is your position or specialisation litigation, which was unexpected, but a at ENS? welcome surprise.

ME: I am a first Year Candidate Attorney AS: What made you want to study law or in the Litigation Department. I have been become an attorney? at ENS since the 21st of January 2013. It has not been long at all. ME: This is a very difficult question. I suppose I enjoy the rhetoric of law as well approach it? AS: Why did you decide to do your articles as the analytical tools required to be a at ENS? lawyer. I like the fact that every case is ME: Any new legislation will obviously different. affect how we practice. Personally, I ME: When I did Vac Work at ENS last have not really dealt with the new year, I was fortunate enough to be placed AS: What has been the highlight of your Companies Act. There is however, a in Team Zieff. I found the work they did to time at the firm so far? weekly meeting for the corporate be exceptionally interesting and commercial departments, where they enjoyable! John Zieff is my principal and discuss issues relating to the new ME: There have been so many highlights; Companies Act. he is a truly gifted practitioner. He has the urgency of everything, the hard work also assembled a phenomenal team. and being able to work on very interesting matters. The matters span from hard line AS: What are the best parts about your AS: Did you have any preconceived commercial transactions to administrative job – both in terms of your notions about articles? law. Meeting and working with different specialisations and in terms of position in advocates, and being in a great team has the firm? ME: Before I did Vac Work I thought that also been amazing! ME: I get to do a lot of travelling to AS: Was the transition from UCT counsel. I meet with clients and I get to to articles difficult? work with an amazing team! The team I work in is, thankfully, very patient and always willing to explain and teach ME: To be succinct, UCT is a law things to an often bewildered first year school, ENS is a law firm. There CA. are things that university cannot prepare us for. AS: Is there anything else novel, quirky or exciting about your job or ENS that AS: What sets ENS apart as an you can tell us? employer? ME: As it turns out, and as I discovered ME: There are so many facets recently, there is a very weird practice which set ENS apart, and it would wherein judges require one to compile a thus be difficult to pin it down do consolidated list of authorities—so all the one specific aspect. I suppose a cases counsel has relied on need to be lot of it is the fact that ENS, from put into a file, paginated etc. Usually we what I have seen, seems to live outsource this job; however, due to the up to the values to which they urgency of the matter, my fellow CA subscribe. It is not merely (Zubeida Mehtar) and I, had to corporate lip service. photocopy over one hundred cases. Yes, photocopy! This is because judges don’t AS: How has the new Companies like reading cases off the Internet as the Act affected your job personally? page numbers/paragraph headings vary 11 Has there been a wider effect on slightly. While this was really stressful the firm and how does the firm and quite annoying it was actually quite a fun evening. Page Page 123

In Class…

Having survived my first year as a law excuse – I even had a friend of mine ask me: student, I arrived back home this holiday Preliminary Year “So Steffi, how many laws have you actually encountering the fact that most of my studied so far?” Needless to say, there was friends’ opinions of me had somewhat questions are thrown at me, as to my no possible answer for such a question at changed – to say the least. Besides the opinion of the death penalty or various hand. usual ‘that-girl-must-be-tripping’ facial other controversial topics. Repeatedly, expression that can be seen almost every every opinion of mine is challenged, and Besides such constant harassment that a time one explains how many years of when, surprise-surprise, I happen to law student ought to get used to, I have also studying are still ahead, or the phrase somehow contradict the point they are noticed how so many things I find overly ‘Shame, so I guess your parents forced you trying to convey, I face the oh-so- interesting, be it the threat of the enactment to study this, right?!’, I mostly noticed how common ‘You think you’re better than of the Secrecy Bill or any other scandalous my acknowledgment of being a law student me?!’ response. Mostly these responses happenings in the law world, just don’t seems to act like an open invitation for are met with my threat of refusing to interest my friends and family. That look of people to merely challenge everything I say. represent these haters when s**t does hit pure boredom, whilst I start passionately Courtesy and manners are instantly the fan. Thus, now I have basically reciting statutes and all the range of colourful forgotten. Nope, none for this girl – she is promised my entire circle of friends to be cases I had the pleasure of learning off by planning to be a lawyer. Right off the bat THAT friend when they are in need ... heart to pass that FSAL exam, makes me long to be back rocking it at Kramer with The one to get rid of those those law students who will actually DUI charges that are just attentively listen to my ramblings without inevitable. having to suppress a yawn or desperately If you’re lucky, you’ll also be attempt to change the topic. So, this is me able to get a laugh out of your excitedly looking forward to another year friends’ naive understandings here at UCT’s law school, being surrounded of what studying law entails. by people that don’t constantly throw bad After having been repeatedly and ill-humoured lawyer jokes at me or asked if I’m really sure that I’m exclaim: “Oh, law ... As in Boston Legal actually studying law – law?” accompanied with the overly unique “But aren’t blondes By Stefanie Busch supposed to be stupid?”

We’ve all heard the stories of the dreaded intermediate year. Intermediate Year Swag; not even the severe air conditioning in Kramer 2 or her numbering that cannot be At the beginning of every year, the class ‘comprehended’ can stand in her way. Questions that will only be understood if above seems to give advice or tell stories you have read one of the many textbooks about the year you are set embark upon. So although our year is divided even further that you spent all your alcohol money on. The final years abuse every chance into 2011 and 2012 streams; many of our Instead of judging someone for failing or available to enforce how depressing our comrades have fallen victim to Con or Prop; struggling, I want to give him or her a high- year is going to be: in intermediate year, and we did not elect a class rep until week 3 five for even trying. an artificial light tan from spending too and only after being told to do so thrice, it is

much time in the library is likely and your up to us to make the best of a bad situation. However, along with the influx of social life turns into a fond memory of what In a faculty where magic notes are traded negatives, there are a few perks that come once was. I have also been encouraged to like a commodity and where friendships can along with being in intermediate year. You take up smoking or possibly a drug Ritalin be likened to alliances in Survivor, I get to know more people in your class and habit. And the moots. Don’t even get a final encourage everyone to have their yearly a sense of solidarity (against negative year started on moots… breakdown before we get too far into the marking) and inside jokes develop. Also, year. Let’s hope we won’t have to replace the fact that you have made it this far Professor Paleker suggested that moots #nailedit with #failedit. proves to some extent that you’re not an are to the law faculty what Quidditch is to absolute idiot. Hogwarts. The final years, on the other By Grethe Carr

hand, insist that moots have become more But above all of those like the law faculty’s version of the Hunger encouraging things, I feel Games. If stories can be trusted, there are that I need to dedicate a no friends in moot season. There is only paragraph to Jacqueline horrible R5.50 coffee from the food court Yeats. All those who have and a ‘partner’ who you fight with, even survived intermediate before embarrassing yourself in front of year know how awesome some of the most established legal the other lecturers are, academics in the country. but they did not have the

privilege of being taught From my minimal experience, I can confirm by Jacqueline Yeats, as it that intermediate year isn’t great. Not only is her first time offering Page do you have to go to class, you have to get Corps. She not only aims ‘involved’ through community service. You to improve our basic can no longer turn to the trusty ‘that’s English skills, but also awkward’ excuse when you haven’t read

12 gives us ‘non-traditional’ an article or case. For some reason, tut experiences. She classmates ask useful questions. simply has too much Law 123

In Class…

The excitement and euphoria of being in final year can only be equated to that joy something mesmerising on the floor. experienced by a marathon runner in the Final Year With the beginning of the end well under last leg of the race. This euphoria was way, it is hard not to focus on anything clearly evident during registration; quite surprised some of us have not yet other than the work that has begun to pile watching students cling to their forms as a been institutionalised. I did also have the up. Although the warnings of the class of war hero would his medals. The four/ three impression that we would be closer as a 2012 ring in our ears, just like those year marathon is finally coming to an end class. However, considering that this final marathon runners, we fight through the and as we have begun our sprint to the year class is drastically larger than previous pain and as the resident enquirers in every finish line, it’s hard not to mull over what years, I’ve realized that getting to know lecture man their stations, it’s hard to awaits us. The contrast in students’ everyone isn’t exactly realistic. A few subdue the bittersweet notion that reactions in our class as to what awaits us attempts were made, however, small talk in someday soon the hell of middle campus is astonishing; some are excited about the ladies’ room doesn’t flow as naturally as will finally come to an end. And if things articles or masters and others are in sheer I expected, and trying to find questions more don’t go according to plan, well... to panic because they completely forgot that profound than “So, which electives are you paraphrase Bruce Wayne’s father, we fall community service was a prerequisite for taking this year?” is harder than faking in order to learn how to pick ourselves up. graduating. enthusiasm for an Evidence lecture. Then, of course, there is the anxiety that seizes By Cheryl Okuthe After experiencing the stages of grief that you when walking past someone in your punctuated intermediate year, as Themba class that you know, but just aren’t Chauke so aptly described them, a sense that familiar with. “Should I wave or of solidarity or kinship would have should I just smile and nod? I should developed in our class. However, at the smile. Waving would be too weird. ” faculty opening it dawned on me that a few students were not familiar with the rest of Then after this internal war has raged the class. This realisation came after on, the reaction is always resorting to several whispers across the theatre along either looking for something or the lines of “Who the hell is that?!” as class someone in the far distance, just over members went to receive their awards. the person’s head (that way, they would have to wave first to get your After yet another year of late nights and attention) or pretending to find the decimation of Leo’s magic notes, I am

If you thought life as a LLB student was bad, I’m here to tell you it only gets worse Post-Grad the indecisive general LLM students are as a LLM by coursework student. For faced with a wide array of courses to starters, the MPhil students quite rightly deny knowing one another (apparently what choose from. resent those with a law background for happens in Germany stays in Germany). saying that they haven’t got a spes in hell When the courses become too much we, of passing, whilst those with a law Being the new faces of Kramer, the foreign like regular folks, are known to seek background look down on the MPhil’s for students marvel at the mountainous views refuge in a good book and a cup of coffee. not knowing what a spes is. The diplomatic and struggle to come to grips with the However, the book becomes our minor diploma students, I have been told, look pseudo porn on the lawn, whilst us old hats dissertation, and the coffee becomes an down on us all equally. There is a massive are reintroduced to our lecturers and Irish. Whilst there is much scope for us to influx of foreign students who, although bemoan our new timetables (which generally be led by our own interest in putting most hailing from Germany, adamantly include evening lectures). together the 25 000 word dissertation, it is Whilst some lecturers (i.e. amazing the rapid rate at which the Kelly Phelps) take pity on us interest one feels for the piece they are and our 17h00-20h00 writing decreases in direct proportion to seminars, offering us a variety the amount of writing they have done for of sweet delicacies to get our it. Through our research we discover that creative juices flowing (and all our brilliant new ideas have already our waistlines expanding), been thought of by someone more others I am sure resent that important than us, who himself has had we elected their course and them laughed at by someone more are determined to maintain important than him. the LLB formalities that apparently worked so well, Though our pretentious aim is to write a adopting a strict “no feeding of revolutionary piece of legal work, our the students” approach. actual aim is to avoid being laughed at by our supervisor and regretting the day we For us masochists who have chose a postgraduate degree over chosen to extend our stay at articles. For those who succeed, the Kramer by another year, we stress and strain will doubtlessly be get to delve deeper into the worthwhile in the end; for those who don’t, wondrous world of contract, there will always be Germany.

IP, labour or the likes. Whilst 13 those of us doing a By Jade Kouletakis specialised LLM have little or no room to pick our poison, Page Page From the Dean’s Desk Prof PJ Schwikkard

I hope by now that the students who are new to Kramer are beginning to settle and that returning students are still pleased to be back. The leak fixing above LT1 and right next to my office is very annoying, but it will eventually get done and hopefully we will be leak-free.

Congratulations to the editors and contributors of Altum Sonatur. It is not only a good read; it gives you all an opportunity to showcase your talents and to reflect the intellectual diversity amongst the student body.

Seven Deanly Tips for the year: 1. Attend lectures: it is the only way you will find out what your lecturer expects of you; 2. Attend tutorials: it is the best way to find out whether you actually understand the stuff or not; 3. Read BEFORE lectures, it is the only way you will know whether your lecturer is making it up or not; 4. Prepare for tutorials, or you will never find out whether you understand the stuff or not; 5. If you want to be a lawyer, never ever do anything dishonest; 6. If you’re not sure whether something is ethical, then you can be sure Page that it isn’t. 7. Have fun and be nice to each other!

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Contributors Articles: THOUGHTS FROM THE EDITOR Thomas Henstra, Belinda Hlatshwayo, Farai Adieu to an Era Chikwanha, Fanelesibonge By Safura Abdool Karim Mashwama, Maeve Some of you may remember me as that MacGlinchey, Alex Spoor, Everything s/he says in lectures/in the person who used to be on the front page of textbook [most often the two are identical] Matilda Nengare, Resheditswe that paper…you know…the green one? amounts to the gospels and it is unto you to Alas this will no longer be the case as I Kgomo learn it…learn it all. finally handover this beautiful monstrosity Ernst Muller, Safura Abdool to the 2013 Editor-in-Chief, Kwadwo 4. The mushroom cloud of smoke that is [applause please]. Since the final issue of level two during those 15-minute breaks will Karim last year only contained editorials from be there for as long as Kramer is a law Final years, I didn’t have an opportunity to school. For those of you who wish to avoid Classes Page: write a soppy good bye piece before I left. contracting lung cancer before the age of Thankfully, Kwadwo has generously Stefanie Busch, Grethe Carr, 25, you can attempt to find an alternate allowed to have my weepy moment now, route through the erection – oh I mean Cheryl Okuthe, Jade here on the oh-so-familiar page 15. sculpture – garden on level 3. Otherwise, Kouletakis resign yourself to joining the I joined Altum Sonatur when I was in first masses…they’re a really swell group of year, bright eyed and more clueless than a raspy-voiced addicts. Kardashian. I wish I could say little has If you are keen on writing changed but unfortunately the bright 5. The leaky level 2 roof has been that way for Altum Sonatur or just dimmed and became stark with jaded since forever it would seem – though it’s cynicism. If I had seven tips for getting more like a year. I remember many an exam voicing your opinions through law school, they would reek of about the issue, email the day spent praying that it would finally horrendous stories that in actuality are not collapse and the exam would get team all that true. Life in Kramer has been a cancelled/postponed/washed away in a mix wonderful thing with many downs [like for of sludge and rainwater. No such luck. The example the leaking ceiling…LSC what’s thing still gushes every time it rains but the going on?] and a few highs [the group that old gal seems to be hanging there…out of The Team stands outside level two veiled in a haze so spite most likely. thick you can’t quite make out faces shall forever be my home]. That said, I’d like to Editor-In-Chief: Kwadwo Ofori 6. Course materials, ah this old chestnut pass on these seven staples in Kramer Owusu really does make it into virtually every horror [slightly more censored than my true story surrounding Kramer to the point where [email protected] cynical self would like]. I doubt it’s necessary for me to even say anything more. I’ll just say this: I haven’t yet Deputy Editor : Resheditswe Kgomo 1. If you know what’s good for you, stay collected my Admin reading…chances are [email protected] away from the coffee on middle. There is a I’m going to call it a wash and just print my stark contrast between the [it was literally own in the library. Alternatively I’ll just Head of Marketing: ground this morning] cafeteria coffee which forsake the reader entirely; I’m sure Corder Farai Chikwanha I’d imagine has been sustaining [email protected] will understand. Kramerians since the dinosaurs roamed and the [just off the boat from Italy] café Head of IT: 7. There are no liars in Kramer. Every single Matilda Nengare Americano which will break the bank. You horror story you hear contains no smidgen [email protected] can grow accustomed to the former if you of exaggeration. This is because we know don’t mind sacrificing your sanity and that telling the unvarnished truth is far more genral sense of taste or you can fork out Head of Funding: Faith Munyati effective at shaking morale than some pale the extra to get your coffee before lectures and floppy fake. Believe everyone and what [email protected] begin and say good bye to eating this they tell you but be clear here…trust no one. month…and petrol and electricity. Best This…is…LAW SCHOOL. AS Copy Editor: Michael Crystal Solution: There is none…welcome to [email protected] Kramer. This issue of Altum 2. The library will never ever be open enough. There will never – at any point in Sonatur was made time – be enough computers or copies of that textbook you need right now to do that possible through the Property Law Assignment. Unfortunately, this is the way things are around here, get generous sponsorship used to that sneaking feeling of dissatisfaction when you hear the 15 before of Edward Nathan 10 bell a-ringing. Sonnenbergs 3. There is always a bit of a chicken-egg scenario when it comes to the course where your lecturer wrote the textbook that s/he prescribes. Is it right because s/he

said it or did s/he say it because it’s right? From the left: Faith Munyati (Secretary), Matilda

Nengare (Head of IT), Kwadwo Ofori Owusu (Editor-in- This poses some interesting dilemmas 15 Chief), Farai Chikwanha (Head of Marketing), Michael during vac work and later in life to be sure Crystal (Copy Editor), Resheditswe Kgomo (Deputy but for the time being this simple maxim Editor), Safura Abdool Karim (Emeritus Editor-in-Chief) should suffice: your lecturer is Jesus. Page Page ENS IFLR AfricaFlagAdSept2012 9/13/12 8:43 PM Page 1

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