SOUTHERN AFRICA LITIGATION CENTRE CASE BOOK 2005-2015 10 Years of Strengthening Human Rights in Southern Africa SOUTHERN AFRICA LITIGATION CENTRE Contact us: president place, 1 hood avenue, rosebank, johannesburg, 2196 t: +27 (0) 10 596 8538 Follow us on Twitter, @follow_SALC www.southernafricalitigationcentre.org SOUTHERN AFRICA LITIGATION CENTRE CASE BOOK 2005-2015 10 Years of Strengthening Human Rights in Southern Africa SOUTHERN AFRICA LITIGATION CENTRE CASE BOOK 2005-2015 Contents Foreword 1 1 Women’s Land and Property Rights • Masupha v Senior Resident Magistrate for the Subordinate Court of Berea and Others 4 • Mmusi and Others v Ramantele and Another 7 • The Registered Trustees of the Women and Law (Malawi) Research & Education Trust v Attorney General 10 2 Children’s Rights • GK v K and Others 14 • R v The Republic 15 3 Sexual and Reproductive Health Rights • LM and Others v Government of Republic of Namibia 18 • Mapingure v Minister of Home Affairs and Others 21 4 Lesbian, Gay, Bisexual and Transgender (LGBT) Persons’ Rights • Rammoge and Others v Attorney General of Botswana and Another 24 • S v M and Another 27 • The People v M and M 28 • The People v Paul Kasonkomona 29 5 HIV and Health Rights • Kingaipe and Another v Attorney General 32 • S v Mwanza Police and Others 34 • M v St Anne’s Hospital and Others 36 • Mwanza and Another v Attorney General 37 • Tapela and Others v Attorney General and Others 38 SALC CASE BOOK 6 Prisoners’ Rights • M v Attorney General 42 • M v The Republic 44 • M and Others v The Republic 45 • Paul v Attorney General 47 • Cases brought before the Working Group on Arbitrary Detention 48 • Mareka and 22 Others v The Commander of the Lesotho Defence Force and Others 49 Freedom of Expression 7 • R v The Nation Magazine and Others 52 • R v Masuku and Another 54 • MISA Zimbabwe and Others v The Minister of Justice 57 International Criminal Justice • Bishop Rubin Phillip and Another v National Conventional 8 Arms Control Committee and Another 60 • Southern Africa Litigation Centre and Another v National Director for Public Prosecutions and Others 61 • Mail and Guardian Media Limited and Others v Chipu NO and Others 65 • Consortium for Refugees and Migrants in South Africa (CoRMSA) v President of the Republic of South Africa 67 • Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others 69 Rule of Law • Law Society of Botswana and Motumise v 9 The President and Others 74 • Hashatsi v The Prime Minister and Others 76 SALC CASE BOOK SALC CASE BOOK Foreword he Southern Africa Litigation Centre consumers. In this respect, accessibility goes (SALC) was officially launched on the beyond the simple availability of laws and T20th June 2005 originally as a joint formal structures of dispute settlement [...] It initiative of the International Bar Association looks at issues of access to basic information (IBA) and the Open Society Initiative for on the legal system, the rules themselves, Southern Africa (OSISA). It was launched the language, institutional culture and as the first organisation dedicated to the law reform. There is no doubt that these training and support of lawyers litigating qualitative aspects of access to justice speak human rights and rule of law issues in directly to issues of basic human rights with southern African countries. which the SALC is concerned.” As part of SALC’s launch in 2005, retired Ten years on and SALC has established South African Constitutional Court Judge itself as a regional NGO which uses public Richard Goldstone highlighted the need interest litigation in domestic courts in ten for specialised training in human rights southern African countries to realise and advocacy: “In the new democracies of our advance the rights of marginalised and region, constitutionalism and the protection vulnerable groups and to strengthen the rule of fundamental human rights are areas in of law. which our lawyers have not been trained, SALC aims to increase public awareness either academically or in practise. It is a within southern Africa of the potential learning curve for us all. The history of legal and importance of litigation and legal activism in South Africa has demonstrated systems in vindicating human rights. SALC the importance of the careful selection of aims to enhance the quality of arguments cases that are on firm ground, both morally made before domestic courts, and to and legally. In providing training in these ensure such arguments are supported by areas, this new Centre will, I am confident, rigorous research and applicable authority. play a crucial role”. In so doing it aims to secure authoritative Also presenting at the launch was court judgments establishing strong legal then-Botswana High Court Judge Athaliah precedents that uphold and protect human Molokomme, who is currently the Attorney rights and the rule of law. General of Botswana. Justice Molokomme as This case book is a reflection of SALC’s part of her address stated: “I have previously cases and importantly the legal successes had occasion to observe that access to of the organisation’s various thematic focus justice can be understood in many different and programme areas. This case book is senses. The most popular sense in which dedicated to the current and former staff the term is used refers to the extent to which members, interns and volunteers who have the formal structures of the legal system, contributed to the body of work which has such as courts, as available, are adequately established SALC as a leading southern resourced, efficient, and easily accessible African human rights organisation. to the public. Another aspect of access to justice, which can be said to be more Kaajal Ramjathan-Keogh qualitative, refers to the extent to which the Executive Director legal system actually delivers justice to its May 2016 SALC CASE BOOK 1 2 SALC CASE BOOK WOMEN’S LAND AND 1 PROPERTY RIGHTS SALC CASE BOOK 3 1 WOMEN’S LAND AND PROPERTY RIGHTS Masupha v Senior Resident Magistrate for the Subordinate Court of Berea and Others A first-born female child of a chief challenged the constitutionality of the male-only succession of the children of chiefs to chieftainship under the Lesotho Chieftainship Act. Country: Factual Background main application, upholding Mr Lepoqo Masupha’s nomination. Lesotho Ms Senate Gabashane Masupha is the first- Programme Area: born and only child of the late Principal Chief of ‘Mamathe, Thaba-kubu and In the High Court, sitting as the Women’s Land and Constitutional Court Property Rights Jorotane, David Gabashane Masupha and his wife, Chieftainess Masenate Gabashane In April 2010, Ms Senate Masupha brought Years: Masupha. When Chief David Masupha a fresh application to the High Court, sitting 2010 – passed away in August 1996, his wife, as the Constitutional Court. She challenged Chieftainess Masupha became Principal the constitutionality of the Chieftainship Act PARTNERS Chief. The Chieftainess passed away on 6 insofar as it could be interpreted to preclude December 2008, leaving the position of first-born female children from succeeding Federation of Women chief vacant. At a meeting to determine the to the position of chief. She argued that Lawyers (FIDA), Lesotho successor to the chieftainship, a Mr Lepoqo as the first-born child of a chief she is Women and Law in Masupha, claiming to be a younger child entitled to be considered for succession to Southern Africa and son of the late Chief David Masupha chieftainship in terms of the Chieftainship (WLSA - Lesotho) (born of a subsequent relationship) was Act, read with the non-discrimination nominated. guarantees and the right to equality before the law enshrined in the Constitution. She In the Magistrates Court submitted that if the Act is interpreted to In February 2009, the younger brother of deny women the right to succeed, it would the late Chief David Masupha, Mr Sempe violate the constitutional rights to equality Masupha, instituted proceedings in the and freedom from discrimination. Ms Magistrates Court seeking to challenge Masupha also argued that there was no rule Mr Lepoqo Masupha’s appointment. Ms in customary law denying women the right Senate Masupha was neither cited in to succeed to chieftainship. the proceedings nor given notice of the SALC intervened in the matter as proceedings. amicus curiae and submitted that if the Once becoming aware of the legislation was interpreted to deny women proceedings in early 2010, Ms Masupha the ability to succeed to chieftainship, it applied to intervene as an interested party. would violate the Lesotho Constitution The Magistrate dismissed her application, as well as Lesotho’s international and holding that under Lesotho law, women regional obligations, including the rights had no direct and substantial interest to be free from discrimination and to in succession matters. The Magistrate equality. SALC advanced an interpretation further dismissed Mr Sempe Masupha’s of the Constitution’s explicit exemption of customary law from the prohibition 4 SALC CASE BOOK WOMEN’S LAND AND PROPERTY RIGHTS 1 against discrimination as inapplicable in therefore held that Ms Masupha’s unmarried this instance because the infringement status was the cause of any discrimination. of the right to equality is arbitrary and The Court held that the Chieftainship irrational and, as the exclusion of first-born Act was merely a restatement of the daughters’ succession is legislated in the customary law rules in Lesotho, therefore Chieftainship Act, the provision does not there was no conflict with the Constitution amount to “customary law”. SALC submitted as it met the criteria for exclusion from in addition that the discrimination against the discrimination prohibition. The Court women resulted in a disproportionately high reasoned that Ms Masupha had not been impact of HIV/AIDS on women, fueling the discriminated against on the basis of her epidemic.