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

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.

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

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

HRW Report on forced marriages of children

A recently published 95-page Human Rights Watch report documents the consequences of child marriage, the near total lack of protection for victims who try to resist marriage or leave abusive marriages, and the many obstacles they face in accessing mechanisms of redress.

It is based on interviews with 87 girls and women in Central Equatoria, Western Equatoria, and Jonglei states, as well as with government officials, traditional leaders, health care workers, legal and women’s rights experts, teachers, prison officials, and representatives of nongovernmental organizations, the United Nations, and donor organizations.

Read the full report:  Human Rights Watch report This old man can feed us, and you will marry him

News updates

Human Rights Watch World Report: Human Rights Watch has released its 2013 World Report. It raises a number of concerns, including torture, lengthy pre-trial detention and the abuse of civilians by military officials, in respect of a number of African countries. The report is available at https://www.hrw.org/sites/default/files/wr2013_web.pdf#page=120&zoom=auto,0,251

International Juvenile Justice Observatory (IJJO): The IJJO has released its January 2013 Newletter. It contains an editorial piece on the International Detention Coalition’s research based on children’s experiences in immigration detention, covering a range of countries, including Somalia and Ethiopia. The newsletter is available at http://www.oijj.org/en/sala-prensa/boletines

Access to justice for women: The International Development Law Organisation has released a manual entitled “Accessing Justice: models, strategies and best practices on women’s empowerment.” The manual contains a number of examples and case studies from women in African countries. The manual is available at http://www.idlo.int/Publications/Women-AccesstoJustice.pdf