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

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

Immigration: SA still not dealing effectively with asylum seekers

SA attracts the largest number of asylum seekers in the world, but grants refugee status to very few, ranking only 36th in the world for the size of its refugee population, which the UN Refugee Agency (UNHCR) puts at about 58 000, notes an Irin report.

The Department of Home Affairs approved just 15.5% of the applications it processed in 2011, less than half the global average recognition rate of 38%, according to UNHCR.

Researchers and activists have repeatedly pointed to serious flaws in the country’s refugee status determination process, including the lack of individualised assessments, misapplications of both local and international refugee law, and high levels of corruption among Home Affairs officials. The government’s routine response has been that its asylum system is simply overwhelmed by the sheer number of applications it receives.

Source: LegalBrief

Ground-breaking court win for ‘separated’ children

The North Gauteng High Court has ordered that eight ‘separated’ minors be allowed to register for and attend public school. The issue arose after public schools were threatened with fines for allowing these children into school, according to the Refugee and Migrant Rights Programme.

‘Separated’ children have been refused entry into SA public schools over a lack of documentation and status because the Department of Home Affairs does not recognise them as dependents of their caregivers. ‘Separated’ children are defined as those separated from both parents, or from their previous legal caregiver.

After the Minister of Education and the Gauteng MEC for Education decided not to oppose the application, the court ordered that the Department of Education allow these minors to register for and attend public school. Lawyers for Human Rights attorney Neo Chokoe said: ‘This case is ground-breaking in that is has opened doors for many separated children who are unable to study because they are undocumented. The judgment is significant in that … applicants will be allowed to register in schools without permits.’

Education organisations said the effect of the judgment would be to place a greater burden on an already stretched public education system. Nomusa Cembi, of the SA Democratic Teachers Union, is quoted in Beeld as saying the Department of Education would now have to provide schools with teachers that can speak the languages of those learners.‘The learners will obviously attend schools that don’t charge school fees and the department would have to increase their subsidies.’

Fedsas deputy head Jaco Deacon said it was unfair for schools to deal with problems that would now arise, including catching up on work missed. SA Teachers Union head Chris Klopper said all schools had limited water, sanitation and safety resources, as well as teaching capacity. Schools’ obligations cannot continue to increase.

Source: Legalbrief

HRC Bill introduced in Parliament

The HRC introduced a Bill in Parliament that seeks to provide for the composition, powers, functions and functioning of the South African Human Rights Commission; and to provide for matters connected therewith.

Read the full Bill: South African Human Rights Commission Bill 2013

Interview about Domestic Violence with Dep.Min of Justice

Transcript copy of Deputy Minister of Justice and Constitutional Development Andries Carl Nel’s interview about domestic violence

(as seen on eNews Channel Africa (eNCA), Thursday 21 February 2013)

Ayanda-Allie Paine (eNCA News Anchor): let’s turn our attention to this now for a moment. The portfolio Committee on Police is calling the amendment for the Domestic Violent Act. The recent increase of domestic violence case has prompted the call to also re-evaluate the Impact the legislation has had on the fight against women and child abuse. The Chairperson of Parliament’s police committee, Annelize van Wyk says the Act doesn’t adequately protect women. Let’s get a reaction from the Deputy Justice Minister, Andries Nel. A very good morning to you and thank you so much for your time.

Question: Does a piece of legislation as it stands suits or benefit women?

Deputy Minister Andries Nel: Very definitely, I think the Domestic Violence Act is one of the best and most progressive pieces of legislation in the world and I think at the time it was adopted, it was absolutely groundbreaking in the provision that it had on the protection of women and also the fact that it was one of the few pieces of legislation in the world that recognize same sex of couples as domestic partners for the purpose of that Act.

Ayanda-Allie Paine: Deputy Minister, if I may interject there. Why the need to make amendments? What are these amendments you seek to make?

Deputy Minister Andries Nel: I think the legislation is basically sound. However, there are number of provision within the Act that have cause complication in terms of implementation. We have asked the South African Law Reform Commission to look at the legislation, to look at where it can be improved and especially, to look at those provision that have run into serious-serious implementation problems to be reviewed.

Ayanda-Allie Paine: The South African Judicial System is under scrutiny not just with the case of Oscar Pistorious but also in previous judgment made against high profile public figures. In your opinion, do you think that our Judiciary is lacking?

Deputy Minister Andries Nel: I think our judiciary and our Criminal Justice System is a very-very sound system. Our Criminal Justice System has succeeded in less than 20 years, to bring down the murder rate in this country from 32000 to 16000 murders. Many other levels of serious crime have come down. That is because, as crime Justice System, we have reviewed that system; we are implementing the plan to bring together Police, the Prosecution, Courts, the present Legal Aid, and Social Development into very-very tight and effective system. I think we’ve seen that during big event such as the World Cup and we have seen that in a number of other instances. Are there problems? Yes, there are problems. Are there serious problems? Yes, there are serious problems. Do we have plans to address those? Yes, we do. Are we addressing those? Yes, we are.

Ayanda-Allie Paine: One of those problems you might be talking about is the issue of Secondary Victimization, many abused women or rape victims saying that they don’t want to take their cases to court because is just not properly handled in the Judicial System?

Deputy Minister Andries Nel: Well, absolutely, one of the reason why the Minister of Justice announced that we will be re-introducing Sexual Offences Courts. Those courts will focus on sexual offences, they will have judicial officers that are experienced in those matter and they will have Prosecutors and support staff in those court as well as facilities such as Videos, Testifying Facilities such as separate Waiting Facilities for victims and witnesses that will minimize that Secondary Victimization. In addition to that, we have a system of Thuthuzela Care Centres, 51 in total, 32 of which are fully operational and we have to bring up to 45 during this year, where a victim of sexual offences can go and receive one stop support, for medical personnel, for Counselors, for other Social services to make sure that he or she is not shuttled through the Criminal Justice System and subjected to that Secondary Victimization. These centres has being very-very successful and in fact they represent the International base practice they are being implemented incorporated in many other parts of the world and even being called Thuthuzela Care Centre in those countries.

Ayanda-Allie Paine: Deputy Minister if I may cut in there quickly, my apology for ……….

Deputy Minister Andries Nel: if can just quickly say, the Thuthuzela Care Centre, since the previous financial year to this year the number of victims who have come those centres has risen from 20000 to 28000. I think that is an indication that people do have confidence in our Criminal Justice System. Yes, they are problems. Yes, we are attending to those.

Ayanda-Allie Paine: Will have to leave it there for now, thank you so much for your time, Deputy Justice Minister Andries. Thank you again.