Offensive tweets could mean jail time – lawyer

A lawyer has warned South Africans to be careful about what they tweet, because offensive posts could result in charges being filed – and even a possible jail term of between three and six months.

Emma Sadleir, a social media lawyer at Webber Wentzel, is quoted in a report in The Times as saying Twitter and Facebook users who put up racist or offensive posts could be charged with crimen injuria or face a complaint under the Equality Act.

‘It is not unusual for a person who is found guilty of crimen injuria to be imprisoned in SA,’ Sadleir said. ‘I know of two separate cases in which policemen were called [by] the ‘k’ word and in both instances, the person was sentenced to jail for a period of three to six months.’

Like any other form of publication, online users are held liable for all comments they make on social networks, even when retweeting and sharing posts. The report notes Sadleir said anonymous users were not exempted from criminal charges, or complaints laid with the Equality Court against unfair discrimination, harassment and hate speech. This is because it is possible to get a court order compelling a website to hand over any information like e-mail or an IP address identifying the person who set up the account.

The Right2Know campaign has lashed out at the government for failing to comply with the Promotion of Access to Information Act

Two out of three requests for information through PAIA were refused by government departments last year, spokesperson Murray Hunter points out in a report in The Times.

‘If compliance with the Promotion of Access to Information Act is a litmus test for the state of government and corporate accountability, the signs are worrying,’ he said. According to a 2012 survey by the South African History Archive, which facilitates and tracks Promotion of Access to Information Act requests, of the 159 submitted, 102 were either outright refused or simply received no response within the 30-day deadline.

‘While the ‘big ticket’ secrets get much attention, many South Africans are denied much more basic information that they need in their daily lives and struggles,’ said Hunter. This ranged from information pertaining to housing lists to water pollution, municipal budgets and corruption. Director of the Institute for Accountability Southern Africa, Advocate Paul Hoffman, is quoted as saying the government appeared to be preparing ‘for the more secret and less open form of administration’.

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Cloud of secrecy descending on SA – study

A study by the advocacy group Right2Know has identified an increase in the use of apartheid-era security laws to keep information out of the public domain. There are also more refusals by public and private organisations to provide requested information and a growing trend towards withholding the details of party-political funding, says a Business Day report.

Among the trends noted in the 2013 Secret State of the Nation Report is a 54% rise in the use of the National Key Points Act to keep data secret and a more than 60% refusal rate for Promotion of Access to Information Act (PAIA) requests. Critically, notes Business Day, this comes ahead of the possible enactment of the Protection of State Information Bill which, if approved in its current form, is likely to see an increase in data being classified as secret. Referring to the National Key Points Act, the report says the number of buildings being declared key points is rising. Using SAPS data, it says that in the last five years the number of key points has risen by 54%, although there is no published list.

National Director to head up ‘bench book’ editorial team

From 13 to 16 Feb Street Law facilitated a discussion with 60 magistrates from all over the country on their experiences with the implementation of the Child Justice Act 75 of 2008.

The aim of the discussions was to identify areas of non-compliance, inadequacies and/or challenges with the implementation of the Child Justice Act. In addition the magistrates nominated individuals from among themselves to form part of an editorial team that will be responsible for the compilation of a resource manual (‘bench book’) for use by magistrates. The editorial team will be headed by Lindi Coetzee.


UN General Assembly Enacts Global Standards on Access to Legal Aid

The United Nations General Assembly has adopted the world’s first international instrument dedicated to the provision of legal aid. The new UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, approved on December 20, are groundbreaking: they represent some of the most progressive principles and guidelines on legal aid, that are grounded on the  emerging best practices and evolving jurisprudential and normative developments around the world.

The important components recognized include:

  • Prompt access to effective legal aid from the outset of police custody, through all stages of the criminal justice process;
  • A right to be informed about a right to legal aid and other procedural safeguards from the moment of deprivation of liberty and before any questioning, including of the right to remain silent;
  • The involvement of a range of legal aid providers including lawyers, paralegals, civil society group, and university legal clinicians and; and
  • The development of a nationwide legal aid system with designated legal aid management authorities that are sufficiently staffed and resourced and are independent from undue political pressure to ensure effective and quality legal aid services delivery.

NOTE: The Street Law South Africa founder and Chairman of the Board, Prof. David McQuoid-Mason, was involved in drafting the resolution discussed in this post as well as the Lilongwe Declaration on which it was based.

Third National Schools Moot Court Competition

The Universities of Pretoria, Venda, the Western Cape, CLASI at the University of Cape Town and the Departments of Justice and Constitutional Development and Basic Education, the SA Human Rights Commission and the Foundation for Human Rights will be presenting the third annual National Schools Moot Court Competition for senior learners (grade 11 and 12 in 2013) in all secondary schools in SA this year, says a report on the Legalbrief Today site.

The competition is aimed at creating greater awareness of the SA Constitution and the values that it embodies. The best nine submissions in each of the nine provinces will be identified and the selected learners will be invited to participate in person in the provincial oral rounds, in the nine provinces, in May and June 2013. The best four teams from each province will then participate in the national oral rounds in Pretoria in August 2013.

The two winning teams with the highest scores will compete against each other to determine an overall winning team in the final round in August 2013. For more details on the competition, please see Alternatively contact the organiser, Cherryl Botterill, at for more information.

Source: LegalBrief 16 January 2013


Law on teenage sex infringes child rights – ruling

Laws that make consensual s ex between teenagers a crime are unconstitutional, a High Court found yesterday. The Criminal Law (S exual Offences and Related Matters) Amendment Act had been widely condemned as absurd and unenforceable. It makes it a criminal offence for children between the ages of 12 and 16 to have s ex – even when they consented to it, notes a BDlive report. It also makes consensual kissing, and even cuddling, an offence if there is an age difference of more than two years between the children.

Last year, the Teddy Bear Clinic and Rapcan challenged the Act, arguing that instead of protecting children, the effect of the law was to traumatise them by exposing them to the criminal justice system. In his judgment, Judge Pierre Rabie said it was clear that ‘s exual violation’ was defined so broadly in the Act that it ‘includes conduct (such as kissing and light petting) that virtually every normal adolescent participates in at some stage or another’.

’There can be no doubt that the impugned provisions as they stand, infringe a range of constitutional rights of children,’ he said. Rabie said to subject ‘intimate personal relationships to the coercive force of the criminal law’ was to ‘insert state control into the most intimate area of adolescents’ lives’. Rabie said the Act was overly and unjustifiably broad, but he tailored his order carefully, so that it would still be a crime when the sexual conduct was between adults and children, or where it was not consensual.

Source: Legalbrief, 16 January 2013

UN, US sanctions DR Congo rebel over atrocities

As written by the Daily Nation

The United Nations and United States on Tuesday ordered sanctions against the head of a rebel group accused of atrocities as it seized territory in the Democratic Republic of Congo.

The UN ordered a travel ban and assets freeze against Sultani Makenga, head of the M23 rebels who have been accused of killing and raping civilians as they carve out a mini-state in the mineral-rich east of the African country.

The US government ordered the seizure of any Makenga assets in the United States and banned Americans from dealing with the 38-year-old former DR Congo army colonel. Susan Rice, US ambassador to the United Nations, accused Makenga of “heinous atrocities”.

The M23 rebellion erupted in March this year when mutineers broke away from the army and seized a number of towns near the Nord-Kivu provincial capital of Goma, close to the border with Rwanda and Uganda.

UN experts have accused both neighbouring governments of aiding the rebels.

Makenga is behind “killing and maiming, sexual violence, abduction, and forced displacement,” said a statement by the UN sanctions committee for DR Congo.

“Under the command of Sultani Makenga, M23 has carried out extensive atrocities against the civilian population,” including the rapes of women and children aged as young as eight, the statement added.

“New US and UN sanctions on Sultani Makenga show the world will not stand for heinous atrocities committed on his orders by the M23,” Rice said on Twitter.

“These new sanctions send an important message to other perpetrators of atrocities in DRC: accountability,” she added.

“Makenga is responsible for extensive atrocities against the population in the DRC,” said Adam Szubin, head of the US Treasury’s Office of Foreign Assets Control.

The UN statement said M23 has received arms and other material “in violation of measures taken by the DRC to implement the arms embargo” against the country.

The statement did not say where the arms had come from. Rwanda and Uganda have strongly denied any link to M23 and have condemned a report by UN experts which alleged their backing of the rebels.

By AFP (14 November 2012)

White cop row may go to Constitutional Court

white cop
SAPS captain Renate Barnard. Photo: Boxer Ngwenya

Trade union Solidarity may take the police to the Constitutional Court to test the country’s employment equity laws after the Labour Appeals Court ruled against a white woman captain who had been seeking an order that she be promoted to lieutenant-colonel in the SAPS.

Solidarity deputy general secretary Dirk Hermann said Captain Renate Barnard’s case had been a “tennis match” for the past seven years.

“The latest court ruling is disappointing… We are convinced that we will obtain a final victory [in the Concourt]. There are various constitutional elements which the court has not given finality on,” Hermann said.

“We are seeking finality on the constitutionality of a quota system that is based on the national racial demographics, the balance between affirmative action and service delivery, and the constitution’s provisions regarding the non-designated group’s right to equality and dignity.”

In 2005, Barnard applied for the advertised position in the National Evaluation Service of the SAPS. She was shortlisted and interviewed with six other candidates, and it was concluded she was the best candidate.

The top four candidates were Barnard, two white men and one black man. No one was appointed and, in 2006, Barnard applied for the same position with two black candidates, and was recommended for the post, but former police commissioner Jackie Selebi vetoed the decision, saying it would not address employment equity in the service.

Barnard then went to the Labour Court and won her case, but the police appealed.

At the time, the court ruled that Barnard’s right to equality and dignity had been infringed upon and that service delivery had been compromised.

Labour Court and Labour Appeals Court Judge President Dunstan Mlambo ruled on Friday that the other court misunderstood the purpose of employment equity, saying that white women were overrepresented at the job level to which Barnard sought promotion.

Judge Mlambo said Barnard also was “clearly advantaged by past unfair discriminatory laws”.

“She was aware that black candidates were targeted for the post for which she applied… Clearly the employment equity plan does not sanction mediocrity or incompetence. Manifestly this was not the case with the two black candidates in this case.”

Police spokeswoman Colonel Tummi Shai said the police had received no notice of Solidarity’s intention.

“Whether SAPS will oppose the matter shall be decided once the court documents have been served,” Shai said.

Cape Argus (taken from

Inquiry into ‘Marikana Massacre’ opens in South Africa

A retired judge toured the spot where South African police killed 34 striking miners in August as he opened a judicial inquiry into the incident. Street Law Director Prof Steve Naidoo is part of the forensic investigation.

The hearing is being heard in the platinum belt city of Rustenburg, 120km northwest of Johannesburg, the town closest to the Lonmin-owned Marikana mine.

Ian Farlam has four months to uncover the events surrounding the 16 August “Marikana massacre”.

The incident sparked intense criticism not only of the police but also of mining bosses, unions, the ruling African National Congress and President Jacob Zuma.

The names of the 34 dead, most of them from the poor Eastern Cape province, were read out at the start of the inquiry before lawyers for the police, victims’ families and 270 miners arrested after the shootings locked horns over procedure.

The commission and its findings could be politically damaging to Mr Zuma and the ANC, especially if security forces are found to have been as trigger-happy and ruthless as their apartheid predecessors.

However, the inquiry’s four-month timetable means its final findings will come after an internal ANC leadership election in mid-December.

Mr Zuma is expected to be re-elected head of the ANC in the vote – teeing him up to win a second five-year term as South African president in 2014 – although he may face a serious challenge from Deputy President Kgalema Motlanthe.

As well as probing the 16 August shootings, the Marikana commission has a broader remit to look into labour relations, pay and accommodation in South Africa’s mines – issues seen as behind the wildcat strike that preceded the killings.