African Law Review VOLUME 1 • ISSUE 3 • 2018 A Closer Look Customary marriage in practice In depth: The prevention of Organised Crime Act Corporal punishment To spank or not to spank? Drunk drivers BEWARE A tribute to the flames of democracy: Advertise with us Would you like to advertise your company in the African Law Review? Our affordable rates are tailored to cater for your small, medium or large business entity or firm. Our rate card: Size Rate Full Page R20 000 Half Page R10 000 This quarterly publication is a platform for lawyers, policy makers and business leaders to debate issues of national importance. Through distribution the magazine reaches: • Judiciary • Universities • Government • Legal firms • Commercial entities • SADC countries For advertising contact: Fhumulani Mbedzi Tel: 011 403 0802 Fax: 011 403 0814 African Law Review � Volume 1 � Issue 3 � 2018 CONTENTS PAGE 3 23 Volume 1 � Issue 3 African 4 Editorial note BLA-LEC BUZZ 5 Chair’s word Law The preamble to the Constitution 6 Legal training BLA DESK Review 8 BLA-History: 2nd series By Deputy Judge President Phineas Mojapelo Physical Address 10 The BLA, out and about BLA-Legal Education Centre 1st Floor, Kingsmead Building The Oval Office Park IN DEPTH Cnr Sloane and Meadowbrook Lane 12 The land reform agenda Bryanston, 2021 By Sphesihle Nxumalo Postal Address 15 Prevention of Organised Crime Act P.O. Box. 70557 By Justice Legoabe Willie Seriti Bryanston 18 Prescribed debt 2021 By Adv. Fhumulani Mbedzi Views expressed in the ALR do not necessarily 20 Decolonising South Africa represent the views of the BLA-LEC or the Black By retired Judge Albie Sachs Lawyers Association. Acceptance of material 23 Understanding customary marriages for publication is not a guarantee that it will in By Inkosi Sipho Mahlangu fact be included in a particular issue since the depends on the space available. Views and 26 Protect your intellectual property opinions of this journal are, unless otherwise By Ursuley Matjeke stated those of the authors. Editorial opinion or comment is, unless otherwise stated, that LEGAL EXCELLENCE of the editor and publication thereof does not indicate the agreement of the BLA-LEC, unless 28 Pioneering Heads of Court: Specialised Courts so stated. Contributions may be edited for clarity, space and/or language. The appearance LAW REPORT of an advertisement in this publication does not 32 The Transkei Marriage Act necessarily indicate approval by the BLA-LEC for the product or service advertised. By Adv. Gugu Nkosi ____________________ OPINION Editorial Collective 34 Drunk driving proposed law Retired Judge President HMT Musi (Convenor) Mpho Sithole (Editor) By Howard Dembovsky Andisiwe Sigonyela (Acting Director) 37 Corporal punishment Fhumulani Mbedzi (Researcher) By Andre Lewaks and Suleiman Henry Thandi Bees (Librarian) TRIBUTES Letters to the editor 39 Bantu Stephen Biko: A symbol beyond his lifetime Email:[email protected] By Nkosinathi Biko Distribution and subscription 41 Justice Tholakele Hope Madala Fhumulani Mbedzi By Adv. Dumisa Ntsebeza SC Tel: 011 403 0802 Fax: 011 403 0814 Email:[email protected] IN THE NEWS Publisher and Distributer 43 South Africa’s new NDPP BLA-LEC By BLA-LEC desk © Copyright 4 EDITORIAL NOTE 2018, what a year! So many events shook the year into transformation and action. of living seems to be shooting up in Most of those events revolved one direction. Besides that, the year around aspects of the South African 2018 came with a list of achievements Constitution - the highest law in the among them is the Black Lawyers land. Association – Legal Education Centre In Issue 3 of the African Law (BLA-LEC) training close to 2000 legal Review, sections of the country’s professionals this year Constitution come under focus. The Constitution serves as the foundation for a democratic country, free of oppression The and discrimination. In accordance Constitution with the Bill of Rights, as enshrined in the Constitution, every South African serves as the Mpho Sithole, Editor citizen has the inalienable right to life, foundation for a world. If section 25 is to be amended it equality, human dignity and privacy. democratic country, Signed into law by former President would become a defining moment in the Nelson Mandela in Sharpeville on free of oppression history of our constitutional democracy, 10 December 1996, the Constitution and discrimination. marking the first amendment of the bill become operational on 4 February 1997. of rights. It was a triumphant occasion but a long Customary marriages got the walk to an inclusive Constitution. It had We cannot ignore momentous country talking, especially following been amended 17 times thereafter. changes like the appointment of a the death of rapper Robert Tsambo Each new change aimed to new head of the National Prosecuting known as HHP. Within this issue the deepen democracy and strengthen the Authority, Advocate Shamila Batohi national house of traditional leaders independence of the judiciary. who’s tasked with restoring public gives guidelines on the application of Prior to this significant day, South confidence in the criminal justice customary law under the guide of the Africa had several other constitutions; system. constitution. the 1910 Constitution granted the This is also the year, President Cyril As the festive season is upon country independence from Britain, Ramaphosa announced a decision to us, irrespective of your levels of the 1961 Constitution declared the amend the Constitution to expropriate intoxication, yes drunken driver you too country a republic and the 1983 land without compensation following a have rights as explained in the article Constitution established a tri-cameral series of nationwide hearings. The land No provision for drunken driving jail parliament. As important as they issue will continue to be a hot topic, so time by Howard Dembovsky. On that were, the Constitutions ignored the hot that US President Donald Trump tipsy note, as we all head out in different everyday rights of black South Africans, startled South Africans on August 23 destinations to say Happppppyyyyyy, barring them from voting and political – with a tweet that he had instructed The celebrated South African participation. his secretary of state to investigate the constitution provides a lovely closing In an article by retired Judge Albie country. Without any proof to prove remark; Sachs, Decolonizing South Africa he the claim, Trump deliberately became explains that the key struggle within a victim of fake news claiming the May God protect our people. the constitution-making process was South African government had started Nkosi Sikelel’iAfrika. to ensure that it would be made by a seizing land from white farmers. The Morena boluka setjhaba sa heso. Constitutional Assembly chosen by land debate is broadened in an opinion God seën Suid-Afrika. the whole nation on a one person one piece by Attorney Sphesihle Nxumalo, Mudzimu fhatushedza Afurika. vote basis instead of self-appointed who questions the Constitutionality Hosi katekisa Africa negotiators under apartheid conditions. of the land reform agenda. The South As the year comes to a close, we’re African Constitution has been hailed all fatigued more especially as the cost as one of the most progressive in the African Law Review � Volume 1 � Issue 3 � 2018 African Law Review � Volume 1 � Issue 3 � 2018 CHAIR’S WORD 5 The preamble to the Constitution By Adv. Mc Caps Motimele SC: BLA-LEC Chairperson The Preamble to our Constitution is concise, commemorative and edifying. It contextualises our constitutional project with enlightening exactitude. In simple terms, it frames the constitution with a commentary of hope, vision, transformation. Correctly observed, it’s part of a poem, part of a song and render nation building an elusive dream. more subtly, a national prayer. It opens with a significant The Preamble acknowledges the evils of apartheid and phrase “we the people of South Africa” , to signify our makes a clarion call to all, to honour those who suffered collective resolve to build a united South Africa premised on for justice and freedom in our land and unite regardless of democratic values and ideals. diverse backgrounds and cultural heritage. Indeed, South It is regrettable that society at large knows very little about Africa belongs to all who live in it , united in our diversity. the Preamble to the constitution and its profound opening. What we ought to learn from the text of the Preamble is Despite its potential to serve as an educational clause and that it is a foundation for a peaceful co-existence, healing, instil a sense of national consciousness , policy-makers transformation, pursuit of justice, tolerance, reconciliation and appear to overlook the essence of the preamble. Comparative nation building etc... constitutional law teaches us that preambles to constitutions Our preamble succinctly proclaims that the sovereign have played crucial roles in both law and policy making power rest with “ we the people of South Africa’’. The “ we ”, throughout the world. demonstrates our common identity as a nation. The preamble outlines our objectives in adopting the constitution such as; Justice Albie Sachs in S v Mhlungu 1995 (7) BCLR 793 (CC) to heal the divisions of the past and establish a society based correctly observed: “ The Preamble in particular should not be dismissed as a mere on democratic values , social justice and fundamental human aspirational and throat-clearing exercise of little interpretive value. rights. It connects up, reinforces and underlies all of the text that follows. Concerted efforts must therefore be made to ensure that It helps to establish the basic design of the Constitution and every South African understands this fundamental basis of indicate its fundamental purposes. This is not a case of making the our constitutional scheme. Policy makers have a critical role Constitution mean what we like, but of making it mean what the to play.