David meets the Queen

Professor David McQuoid-Mason, Chair of Street Law SA, recently met the Queen at a Reception for Heads of Commonwealth Organisations at St. James Palace, London on 27 October 2015, prior to the Commonwealth Heads of Government Meeting (CHOGM) in Malta. The function was held by the Queen to thank the Commonwealth organisations for supporting her and the Commonwealth.

For the occasion McQuoid-Mason wore what he calls his ‘Mandela jacket’ designed by Lindiwe Khuzwayo of Durban, which was in colourful contrast to the dark suits worn by the other male participants and attracted the eye of the Queen.

Queen's Reception Electronic Image 151027_CRCHOGMR_SID_1263

The beloved Ed O’Brien

ed1Edward Lee O’Brien, 69, co-founder of Street Law, Inc., President of the ACLU for the National Capital Area, and a pioneer of law-related education, died on Thursday, July 2, 2015, of a heart attack in New York City. Serving as Executive Director of Street Law Inc., for almost four decades, Ed brought Street Law’s democracy, human rights and legal education programs to high school classrooms, prisons, courts, police departments and communities worldwide – using innovative inter-active teaching methodologies – the original focus was to teach kids in underserved areas about “everyday law.”

Ed’s vision took Street Law international in 1985, first to South Africa, establishing an enduring partnership with his lifelong friend, David McQuoid-Mason, the dean of the University of Natal Law School. Afterwards, he led programs in Latin America, East and West Africa, Eastern Europe, Russia and the Middle East. Although his first love was teaching, Ed spent much of his time fundraising and managing grants, and, as a result, under Ed’s leadership, Street Law has sought and secured grants from the U.S. Department of Education, U.S. Department of State, USAID, the U.S. Department of Justice, the National Endowment for Democracy, the Ford Foundation, the Open Society Institute and some of the major corporations in America including General Motors, Coca Cola and McDonalds, etc.

Ed graduated from the University of Virginia with a B.A. in History and received his J.D. degree from Georgetown University Law Center. He co-founded the Street Law program at Georgetown in 1972 and was awarded a Robert F. Kennedy fellowship, from the RFK Center for Justice & Human Rights, which helped launch the organization, by subsidizing his first year of paid Street Law employment.

Ed worked as an adjunct professor of law at Georgetown University, teaching courses in Prison Law and Street Law. He co-founded Human Rights USA, a project initially funded by the Ford Foundation, in 1998.   He also founded the Black South African Law Program at the Georgetown University Law Center, where over four dozen South African lawyers were invited to earn their Masters of Law degrees; remarkably, the graduates of this program have become some of the country’s leading law professors, judges and practicing lawyers.  He had hoped to write about the legacy of this program during an expected visit to South Africa in the spring of 2016.

Ed has had special relationship with South Africa, where Street Law’s first international program was established in 1985, and in 2003 the University of KwaZulu-Natal in Durban awarded him an Honorary Doctor of Laws degree. According to David McQuoid Mason, the then Dean of University of Natal Law School, Ed “arrived on the day the Apartheid authorities declared a State of Emergency. We ran the very first Street Law workshop in South Africa in Durban in August 1985, and started the first university Street Law program in South Africa at the then University of Natal (now the University of KwaZulu-Natal) in 1986. We then both helped to spread the Street Law message around the world, beginning with 16 Eastern European with funding from the Ford Foundation and Open Society (Soros) Foundation. The rest is now history and Street Law is taught in over 45 countries today. Ed was a great inspiration for many people – not least me.”

In 2006, Ed completed a two-year Master’s program in International Children’s Rights at the University of Fribourg (Switzerland) Faculty of Law. In 2009, he received the Isadore Starr Award for Excellence in Law-Related Education from the American Bar Association.

Ed has written articles for numerous professional journals and is a recognized expert in the areas of law related education, youth aspects of the criminal justice system, constitutional law, human rights, and democracy. He has authored and co-authored several books, including the premiere textbook for teaching law to high school students, Street Law: A Course in Practical Law (now in its eighth edition) written with the enthusiastic encouragement early on by Isadore Starr, Street Law (South African edition), Human Rights for All (1991), Democracy for All: Education Towards a Democratic Culture (1994), and Practical Law for Correctional Personnel: A Resource Manual and a Training Curriculum.

In 2004, a partnership with the Center for the Study of Islam and Democracy headed by Dr. Radwan Masmoudi and Aly R. Abuzaakuk, with funding from the U.S. State Department’s Democracy and Rule of Law (DRL) program, created an adaptation of the Democracy for All text, which uses excerpts from the Koran, to show how Islam and democracy are compatible. This book, Islam and Democracy: Toward Effective Citizenship (2005), published in Arabic, has been used successfully in a number of countries including Morocco, Tunisia, Jordan, and Egypt.

In 2007, as part of Street Law’s Closing the Gap program, Ed served as a living civil rights “Legend” in a unique program called “Breakfast with a Legend,” where 5th and 6th graders in D.C. Public Schools meet with “Legends” — people who had been successful in law and made a positive impact on society. Students at Friendship Charter School Woodridge Campus had breakfast with Ed then took part in a Street Law class taught by him.

In the summer of 2012, Ed traveled to Chiang Mai, Thailand, to volunteer with friend Bruce Lasky, founder of Bridges Across Borders Southeast Asia Community Legal Education Initiation (BABSEA), an international access to justice, legal education program that uses Street Law as a basis of its teaching mission in law school clinics throughout South Asia.

In January-February of 2015, Ed traveled with May to Kathmandu, Nepal to lead a UN-sponsored Democracy Education Workshop, co-sponsored by the Council for a Community of Democracies and the Nepal-based Institute for Governance and Development, to create plans and guidelines for civic and democracy education Nepal. He also led a Street Law workshop for the Nepal Teacher Training Initiative, a program supported by the Washington, DC Rotary Club, which provides teacher training to remote areas of Nepal.

After retiring from Street Law, he became a Professor at the University of District of Columbia, teaching Law and Ethics and the capstone course on Democracy. He was also on the faculty negotiating team working with the SEIU to secure better benefits for UDC Adjunct Professors.

Ed has served on the board and committees of many organizations, including the American Bar Association, the American Civil Liberties Union-National Capital Area, the American Association of Law Schools, the D.C. Bar, the National Assembly of Health and Human Services, the Rotary Club of Washington, D.C., Civitas International, and Capitol Hill Restaurants Inc.

In this last capacity as a restauranteur, he was the co-owner of the Rogue and Jar pub in Dupont Circle, The Man in the Green Hat restaurant on Capitol Hill and Colonel Brooks Tavern in Brookland, which resulted in a life-long appreciation of a good Scotch, a taste for prime rib and good food. Co-worker and friend Margaret Fisher commented that, “Ed was always the one who knew where the best restaurants were and where the best drinks were to be had, without any help from Yelp. He loved life and it was contagious. Any one who knew Ed, knew his laugh and his wit. He also had a nose for people who were genuine and cared about making a difference in the world.”

* * *

ed2Ed O’Brien was born on September 21, 1945, the son of William J. O’Brien and Elizabeth Lee, and grew up in Douglaston, Queens, New York, spending carefree summers in Cape May in an old Victorian gingerbread house on Gurney Street, a block from the ocean. He attended Holy Cross High School, a Catholic boys school, in Flushing, New York, where a group of high school buddies known as the “Kings” continue to raise hell regularly at annual reunions. Since his father died in 1995 at the age of 102, he always thought he would have a long life.

Edward L. O’Brien is survived by his beloved wife, May Yoneyama Gwinn O’Brien; a son, John and his wife Saba Brevi; a daughter, Beth and her husband, Marlon Banta; a stepson, Michael Palmer and his partner, Molly Brown; and a stepdaughter, Mary and her husband, Terry McDonald; three grandchildren, Hamza, Sasha and Neila from John’s marriage; a step-grand-daughter, Maggie, from Mary’s marriage; an older brother William; and their lovable dog “T” or Tristan. Michael recalled fondly that Ed frequently dashed around with his shirttails flying.

Ed loved baseball and was a Nats fan, but his lifelong passion was playing golf, and his dream of going to St. Andrews was fulfilled on a Rotary Friendship tour of Scotland a couple of years ago. He was a voracious reader, often frequenting his favorite neighborhood bookstore, Politics and Prose, and was a dedicated fan of “Morning Joe,” Krista Tippett’s “On Being,” Nelson Mandela and the Dali Lama.   He also had a new interest in the arts and was an avid museum goer; on the last day of his life, he made a point of taking his bride to the new Whitney Museum at the end of the High Line, which he declared was the best museum in New York.

He could be seen on his daily walks with his headphones on taking his exercise routine around his neighborhood of Chevy Chase DC, always friendly, stopping to talk to neighbors, and to pick up his Souper Girl order from Gerald Davis, his personal trainer, in the Chevy Chase arcade.

 

On Thursday, July 9, 2015, Edward Lee O’Brien was interred at the Meade Memorial Cemetery in White Post, VA, the Lee/Meade family cemetery.

=======================================================

In lieu of flowers, a memorial donations may be made to “Street Law—South Africa,” streetlaw.org.za, c/o Professor David McQuoid-Mason, Center for Socio-Legal Studies, Howard College Campus, Hut 11, Durban 4041, South Africa– to provide scholarships to those who are otherwise unable to attend the “Ed O’Brien International Street Law Best Practices Conference” in 2016 (the conference is celebrating the 30th anniversary of the founding of the first ever international Street Law program, which took place at the University of KwaZulu-Natal); or Nepal Teacher Training Innovations, nepaltti.org; or the Arlington Academy of Hope, aahuganda.org – all non-profit organizations.

“What we have once enjoyed and love we can never lose, All that we love deeply becomes part of us and can never be parted. Ed will remain in our hearts forever. May the departed soul rest in peace.”  – Sumit Kapoor, upon hearing about Ed’s passing.

The final days of former president Nelson Mandela formed part of a debate in Johannesburg on Thursday night around end-of-life decisions such as euthanasia.

Two speakers spoke about Mandela, and although both were on opposite sides of the debate, they agreed that he should not have been put on life-support machines.

Professor Willem Landman from Dignity SA told a packed lecture room at the University of Witwatersrand’s medical school that Mandela would not have been happy with his being kept artificially alive.

“I dare say that if he knew, he would call it an assault on his dignity.”
Liz Gwyther, CEO of Hospice Palliative Care Association of SA, said Mandela’s life-support did not benefit him in any way.
“He should not have had his life prolonged by artificial means, his medical team should have allowed a natural death.”

The debate followed the landmark ruling on April 30 that Cape Town advocate Robin Stransham-Ford be allowed to die with the assistance of a doctor, while the doctor would not be subject to prosecution or disciplinary proceedings.

An urgent application was heard in the High Court in Pretoria. Stransham-Ford, who was suffering from stage four cancer, died from natural causes two hours before Judge Hans Fabricius handed down his ruling.

Fabricius subsequently refused an application by the government and the Health Professions Council to rescind his order, saying it concerned a matter of public interest and could affect more people than just Stransham-Ford.

Landman said that Dignity SA was not actively involved in the cases of three people who had approached them for help in filing applications to the high court to allow doctors to assist them in ending their lives, as initially reported by the media.

“People have approached us following the ruling. We did not turn them away, but did refer them to our legal team. We are currently letting this case [Stransham-Ford’s] run its course,” he told News24 later.
“We are not actively involved in their cases at the moment. We don’t want to muddy the water. The cause of action has been established in this case. It will be tested in higher courts.”
‘Dear to my heart’
Landman told the lecture hall that the topic of euthanasia was “dear to his heart”.
“We have many differences of belief… like religion. In this debate, we must talk about law reform and policy, and the ultimate thing is the Constitution,” he said.

Landman said Health Minister Aaron Motsoaledi had failed to acknowledge the authority of the Constitution in this debate.

Law is not made on the basis of God’s will – it is based on the Constitution.

Law is not made on the basis of God’s will – it is based on the Constitution,” he said. “If playing God is determining the manner and time of death, than what about the legal ways that doctors determine death?”

He said these “legal ways” were everyday decisions taken by doctors, like withholding treatment, determining who gets a specific treatment and methods of pain management that could affect the length of a patient’s life.
He said the rules proposed for euthanasia were in fact more strict than those of the informal “legal” decisions doctors took that lead to patients’ death.

Case for euthanasia compelling

Professor Dan Ncayiyana, a former editor of the SA Medical Journal said: “There are more patients dying of doctor decisions than those who would if they if they could do active euthanasia”.

He also mentioned that the debate around euthanasia was based on the rights to life and the rights to dignity.

“They are opposite sides of the same coin. The right to life is the right to dignified life.” He said when it came to end of life decisions, there was no “one size fits all”. “On one hand, I am of the view that as a general principle, the case for euthanasia is compelling,” Ncayiyana said.
“On the other hand, euthanasia should only be implemented in a secure environment. I don’t think South Africa provides a secure environment for euthanasia.”

He said South Africa “lacked an ethos of respect for human life”.
“The argument for euthanasia is sound, and there is a place and time for it. But that time and place is not now for South Africa.”
Gwyther said suffering was subjective, and palliative care was there to provide relief from suffering. “[The] discussion is driven by our fear and imagination of how it is going to be, and in my experience, it is not as bad as our fear and imagination.”

Law professor David McQuoid-Mason from the University of KwaZulu-Natal echoed Landman by saying the Constitution was “our supreme law”.
He said Fabricius’ ruling was careful to not make itself “a general rule”.
“It is not a blanket license. My advice to doctors is not to do anything without a court order. It is a decision by one judge. Other judges are not bound to follow him.” He said the ruling would allow people to approach the courts.

There are bigger things at stake than Nkandla

 

October 12 2014 at 10:43am
By Craig Dodds (iol.co.za) Comment on this story

The political climate is likely to get uglier unless a solution to the problem is found, writes Craig Dodds.

Nkandla is fast threatening to overtake the arms deal as the most investigated issue since 1994 – generating a plethora of official (and less official) reports in its wake, even as prospects of a resolution appear to recede.

It is already almost certain to end up before the Constitutional Court, following a parliamentary process mired in controversy from the start.Copy of 2667711

There are thus far five reports on Nkandla – those of the public protector, Special Investigating Unit, joint standing committee on intelligence and a Public Works task team, as well as President Jacob Zuma’s response to these.

Parliament’s ad hoc committee on the issue has asked a technical team to prepare a draft report for its members to consider, probably next week, before they submit a final report to the National Assembly on their findings and recommendations.

Chairman Cedric Frolick said he’d discuss extending the deadline (October 24) for the committee to complete its work.

But the committee consists of ANC members only, after the opposition parties represented on it withdrew, saying the ANC’s refusal to budge on any of the opposition proposals showed the governing party was hell-bent on producing a whitewash to exonerate Zuma.

The opposition parties are now preparing their own report, which they may release next week.

That will bring to seven the number of reports on Nkandla (if Zuma’s is included, though it’s more or less a summary of the first four).

All this comes as the country faces an economic crisis that makes the R216 million spent on Nkandla pale into insignificance.

Veteran former ANC MP Ben Turok was incredulous when he spoke to journalists this week about “the political climate”.

“Here’s the IMF reducing our growth prospects to 1.4 percent, for the fourth time, and we’re worrying about Nkandla? There’s a hell of a lot more money here that we’re going to lose,” Turok said.

“I watch the economy very carefully, and what I see is alarming… mining, manufacturing and agriculture, all three are stagnant, if not worse, all three.”

Everybody was “sick and tired” of Nkandla, Turok said.

Yet some of the institutions that are supposed to resolve situations where public money has been misspent have been rendered impotent by the political stalemate over the scandal.

Public Protector Thuli Madonsela’s report has been called into question by ANC members on the ad hoc committee, among others, and attacks on her credibility escalated this week with the delivery of a letter accusing her of “gross misconduct and incapacity” and asking Parliament to investigate and take “appropriate corrective measures”.

The Nkandla ad hoc committee has referred this submission back to Speaker Baleka Mbete, suggesting it be dealt with by the justice portfolio committee.

Meanwhile, Parliament’s report on Nkandla, following a process in which the ad hoc committee has thus far refused to call any witnesses to respond to the remaining unanswered questions stemming from the public protector and SIU’s investigations, is unlikely to satisfy anyone other than the ANC.

Frolick said this week the committee would deliberate on the draft report and, if there were “any gaps”, consider how to address them, but he would not commit to inviting any of the role players to Parliament to provide clarity.

The opposition parties’ alternative report, on the other hand, will have no formal status, having been produced outside the parliamentary process.

Chairman of the DA federal executive, James Selfe, said this week he had compiled a draft report on behalf of the opposition parties, which was being circulated for their approval.

He said he had tried to refer only to the existing reports, “particularly the parts where they concur”.

“We’re not making any assumptions – we do obviously draw some conclusions – but we’re just trying to say, on the basis of what was before that committee, this is the inescapable conclusion,” Selfe said.

One example was that Zuma had agreed, according to the public protector’s report, that he had asked for a larger cattle kraal at Nkandla and been willing to contribute to the costs, contradicting the ANC’s claims that the president was unaware of the details.

But Selfe admitted the opposition document would have no formal status and was “essentially a political report”.

The rules of Parliament do not allow for the production of minority reports.

The parties had had the option of remaining in the committee and having their views recorded in its final report, but this would have conferred legitimacy on the process, according to Selfe.

They would instead use the debate on the ad hoc committee’s report, when it is tabled for consideration by the National Assembly, to argue their case.

Given the ANC’s healthy majority, that will not change the outcome of the process, with the adoption of the ad hoc committee’s final report a foregone conclusion that, technically, will bring Parliament’s role in the matter to an end.

Waiting in the wings, however, is the probability of a Constitutional Court application by the opposition parties to have Madonsela’s remedial actions – including that Zuma should pay a reasonable portion of the costs of “non-security” items – enforced.

They are awaiting the outcome of another application, in the Western Cape High Court, relating to the enforceability of remedial actions contained in Madonsela’s report on the SABC’s appointment of Hlaudi Motsoeneng, among other issues.

It will be months, at least, before a Constitutional Court ruling settles the question at the bottom of the strife – whether Zuma must pay for some of the Nkandla costs as Madonsela said he should.

In the meantime, the “political climate” is likely to get a lot uglier, further sapping confidence in the country and its ability to focus on its economic problems.

It’s not clear at this stage how seriously the justice committee will take the complaint against Madonsela, given that a proper interrogation of the charges would involve calling her to Parliament to respond to criticisms of her report on Nkandla – something the ANC representatives on the ad hoc committee have been reluctant to do.

An inquiry into Madonsela’s fitness for office would inevitably require Parliament to pick over the Nkandla carcass yet again, just when it had tried to put the matter to rest.

But opposition parties are not going to allow it to drop off the agenda anyway, and the Concourt application will be another opportunity for them to mobilise public sympathy.

On top of that, the DA’s application for a review of the decision to drop arms-deal-related corruption charges against Zuma will add fuel to the fire in the coming months, while jockeying for position within the ANC in the lead-up to its National General Council next June will add to the noise.

The country is in for a very bumpy ride in the months to come, unless something gives in the meantime.

“People are sick and tired of the evasion of the solution. It’s a very sensitive issue which needs to be resolved,” Turok told reporters this week.

“I think all of us should try and be sensible and say, let’s find a way out. I don’t want to say he must now come and own up. I’m saying the country requires a solution. We must resolve this thing once and for all, and stop this haggling.”

craig.dodds@inl.co.za

Political Bureau

Protect the Public Protector

We, as a Law School, have a proud history of speaking out against violation of and threats to the rule of law. The Society of Law Teachers of Southern Africa (SLTSA) gave an undertaking to the TRC in 1997 that law schools would always protect the rule of law and  ensure that the foundational principles of our constitutional democracy not be undermined.

In order to protect institutions that have been set up to strengthen democracy, we are obliged to issue the following statement:

  1. The Constitution must be interpreted in a manner that advances the founding principles of democratic governance, accountability, responsiveness and openness.
  2. An independent, effective and functional Public Protector is vital if we are to attain this objective.
  3. Interpretations of the Constitution which advance short- term political and other parochial interests but undermine constitutional institutions cannot be countenanced.

We condemn in the strongest terms any attempt to undermine the office of the Public Protector; whether it be by members of the Executive, Members of Parliament, leading politicians or members of the public.

We wish to place on record the following:

  1. Section 181(2) of the Constitution requires the Chapter 9 institutions, which include the Public Protector and her office, to carry out their mandate ‘without fear, favour or prejudice’.
  2. Section 181(3) of the Constitution requires ‘other organs of state, through legislative and other measures to ‘assist and protect’ Chapter 9 institutions, including the Public Protector’s office, ‘to ensure the independence, impartiality, dignity and effectiveness of these institutions’.
  3. Section 237 requires all constitutional obligations to be performed diligently.
  4. The Public Protector submitted a comprehensive report after an exhaustive process into the upgrading of the Nkandla complex and concluded that the President and his family improperly benefitted and suggested remedial action.
  5. The findings of the Public Protector may only be reviewed by a court of law, and any review of her findings by the ad hoc Parliamentary committee, the MPs, the Ministerial task team, the Special Investigative Unit (SIU), an Individual Minister or any other body or person, would be contrary to the rule of law and unconstitutional.
  6.  Parliament is required to study the remedial action recommended by the Public Protector in her report in order to hold the relevant person accountable.
  7. It is not within the powers of Parliament to determine whether the Public Protector’s conclusions were correct or not.
  8. The report of the Public Protector is that of an independent constitutional institution and may not be treated as if it is of equivalent status to other reports on the Nkandla complex, compiled at the behest of the Executive or by agencies which report to the Executive.

We therefore call upon members of the Executive, the ad hoc Parliamentary committee, MPs and spokespersons for the ruling party to desist with immediate effect from making unconstitutional and ill-conceived attacks on the office of the Public Protector and her office and to implement her recommendations.

If the public would like to join the campaign to protect the public protector they can visit #tag.protect the public protector.

School of Law, University of KwaZulu-Natal,

Endorsed by the South African Law Deans Association (SALDA) and by the Society for Law Teachers in Southern Africa (SLTSA).

Provinces have final say on admissions – ruling

A provincial government has the final say on the number of pupils that can be admitted to a school, the Constitutional Court ruled yesterday, according to a BDlive report. ‘While the school governing body determines admission policy, individual decisions on admission are taken only provisionally at school level by the principal acting under the authority of the head of department,’ the court said in what the report says is seen as landmark judgment.

‘Where the need arises, section 5(9) provides a safety valve, which allows the MEC to consider admission refusals and overturn an admission decision taken at school level,’ the court ruled. The report notes the matter came to the Constitutional Court after Rivonia Primary School refused to admit a child to grade 1 when the parents applied in 2010 because the school was full. The Gauteng government instructed the school to admit the pupil, contrary to the school’s admission policy. The SCA found last year that the Gauteng government’s instruction to the school was unlawful, and that a school’s governing body had the authority to determine the school’s capacity. The judgment overturned a High Court decision, which held that the overall authority to determine school capacity rested with provincial education departments. The matter subsequently went to the Constitutional Court.

Acting Constitutional Court Judge Nonkosi Mhlantla wrote the majority judgment. She said: ‘The power of the governing body must also be understood within the broader constitutional scheme to make education progressively available and accessible to everyone.’

A report in The Times notes the court found against the Education Department head, saying he had not acted in a procedurally fair way by physically forcing the child into the class. Both parties were criticised for not working together in a spirit of ‘co-operative governance’. ‘Trouble starts when we become more absorbed in staking out the power to have the final say rather than in fostering partnerships to meet the education needs of children,’ the judge said. The chairman of Rivonia Primary’s governing body, Rickson Mboweni, said he was ‘disappointed’ by the ruling but pleased that all further actions of the department, when intervening in an admission dispute, had to be ‘procedurally fair’.

MEC for Education in Gauteng Province and Others v Governing Body of the Rivonia Primary School & Others for a full report.

Court blocks sex register listing

The recent court appearance of a 14-year-old boy who raped younger boys and stabbed a 12-year-old girl has put the spotlight on whether child offenders should be treated differently to adults. The case highlights the dilemma of weighing up the clashing rights of child sex offenders and their victims. The case came to the Cape Town High Court earlier this year on review from the magistrate’s court, which had found the boy guilty of raping three boys, aged six and seven, and of attacking the girl.

At the centre of the matter was whether he should be listed in the national register of sexual offenders. Two weeks ago, the high court found that the law prescribing that all sexual offenders be registered was unconstitutional.

A section of the Criminal Law (Sexual Offences and Related Matters) Amendment Act prohibits a court from taking into account whether the offence involved kissing or rape, and whether there was consent, and does not allow offenders to make representations as to why they should not be registered. The court gave parliament 18 months in which to amend the section and send it to the Constitutional Court for ratification. It said including a child’s name in the register had “far-reaching implications”, including stigmatisation, and affected the child’s rights to privacy and dignity.

Morgan Courtenay, a lawyer for the Centre for Child Law, which joined the case as an interested party, said one of the “severe” effects of being registered was that it limited employment opportunities. People listed on the register would not be allowed to work in the same environment as children, and in certain instances offenders have to disclose their convictions to employers. They might not be allowed to adopt children.

Though the aim of the register is to protect children and the mentally disabled from sex predators, Courtenay said children should not be treated like adults because they were still developing.

“Generally, they do not understand the consequences of their actions and should be treated differently to adults, who can differentiate between right and wrong,” he said, suggesting that the register be limited to adults.

Kenneth Klopper, the boy’s lawyer, agreed. He argued that children were not mentally or physically “on a par” with adults, which is why the law makes special provision for them, with a focus on rehabilitation.

Cecil Tsegarie, who represented Justice Minister Jeff Radebe , argued that the register should include all sex offenders.

Tsegarie said this extended to the boy because he had “readily admitted that he is a sexual predator of children in stating in his plea that he lusts for sex with children”.

But the high court found that the listing of a child in the register should be considered case by case.

Justice Department spokesman Mthunzi Mhaga said there were over 5000 offenders on the register, most of them adults.

Until the Constitutional Court rules, no child sex offender will be listed, Tsegarie said.

Click here for full Report: IVAN JOHANNES VS STATE High Crt Judgmnt

SANDF asks ConCourt to set aside liability finding

Published in: Legalbrief
Date: Thu 04 July 2013
Category: Litigation Issue No: 3309

The SA National Defence Force is asking the Constitutional Court to set aside the findings of the SCA and High Court that it can be held liable for an attack by a man using a weapon built from military gun parts, notes a Beeld reports. The basic parts of an R4 rifle were stolen from an army base outside Pretoria in 2001.

The gun was later ‘built’ with more parts stolen by a military chaplain, Jacob Motaung, from a military base in Middelburg, Mpumalanga. He passed on the parts to Vusi Mahlangu, who used them to rob and injure Leon von Benecke, from Bronkhorstspruit.

Von Benecke successfully sued the Minister of Defence for damages as Motaung was in the SANDF when the parts and ammunition were stolen. But SANDF head Solly Shoke now says in court papers addressed to Chief Justice Mogoeng Mogoeng that Von Benecke’s damages are too far removed from the theft committed by Motaung. The court, he says, should not accept a causal link between the thefts and Von Benecke’s injuries. Mogoeng is considering the application.

OHCHR 2012 Report

The 2012 Report of the United Nations Office of the High Commissioner on Human Rights has been released. The thematic issues dealt with include impunity and the rule of law and violence and security. It also contains a number of case studies on African countries in relation to torture and arbitrary detention.

The report is available at http://www2.ohchr.org/english/ohchrreport2012/web_en/allegati/downloads/1_Whole_OHCHR_Report_2012.pdf

Minister defends Legal Practice Bill Published in: Legalbrief Today

Category: Policy
Issue No: 3283

Justice and Constitutional Development Deputy Minister Andries Nel has refuted allegations that provisions in the Legal Practice Bill that seek to empower the Minister to appoint three members of the proposed Legal Practice Council out of a total of 21 are a deliberate move by government to control it, reports Legalbrief Policy Watch.

Reiterating government’s commitment to strengthening the independence, dignity, accessibility and effectiveness of the courts as part of the process of transforming the legal profession as a whole, Nel told the annual meeting of the Black Lawyers Association that ‘the untransformed state of the legal profession’ not only constitutes a ‘stumbling block’ to greater access to legal services and justice: it also impedes the further transformation of the judiciary.

While it will be the role of the Minister’s appointees to assist the council in its efforts to address this, they will not be in a position to drive the process. According to the Deputy Minister, ‘elites … who have done well under the current rules’ consider government attempts at transformation as ‘akin to … tyranny’, projecting themselves as victims. SA ‘s Constitution does not give an elite the right to carry out decisions ‘in an opaque way for their own benefit’, or to ‘permanently engage in … vices’ that prevent others from ‘ascending the ladders of the legal profession’, Nel said.
Full Legalbrief Policy Watch report