Brave judgments, giving the clearest illustration of judicial independence are being delivered all over Africa. The courts in South Africa are often praised for their courage and independence, but it is increasingly a virtue being seen elsewhere. Take the case of Butler Asimbuyu Sitali, decided by the court of appeal in Zambia, for example.
He was for some time CEO of Zambia’s energy regulation board and was appointed in September 2010. In March 2013, however, Sitali was fired by the board for bizarre, political reasons.
THE old VW Passat had done 280 000 km and cost R61 450 but it suited the new buyer just fine. Then, after just three days, it broke down. Her disappointment has been the public gain, however, as the dispute has led to a major new consumer protection decision.
And there’s more: she gets her money back, the car dealers must pay a fine of R100 000 for their unlawful contract with its “prohibited conduct”, plus there’s a warning of “significantly higher penalties” for future infringements by these or other motor dealers.
At first the outlook seemed poor for buyer, Ms H van Lill. When the car broke down she had it taken back to the sellers, Western Car Sales in Kraaifontein, and she asked for her money back. The dealers refused a refund and threatened to charge her storage costs if she did not remove the car.
Several attempts at resolving the dispute followed, but the dealers simply ignored it all, even the ruling in favour of Van Lill made by the motor industry ombudsman. Eventually she turned to the national consumer commission which brought an action on her behalf against the dealership, before the national consumer tribunal. Belligerent in response to Van Lill’s earlier efforts, the dealers neither filed an answer to the commission’s application, nor appeared at the hearing.
That commission had found the dealership’s standard agreements amounted to “prohibited conduct”, with clauses intended to “defeat the purposes” of the law and mislead the consumer. Would the tribunal agree?
It was a crucial test case, the first time the tribunal had to consider alleged prohibited provisions in a contract. Would there be blood on the floor? – A finding against the dealership with a significant fine, one that would make consumer sharks pay attention?
The tribunal delivered a most satisfactory critique of the dealership’s behaviour and its contract – a document that was filled with unlawfulness, the tribunal ruled.
It’s not every day that a court gives helpful advice to unsuccessful litigants on other ways to achieve their goal. But judges of the Seychelles Court of Appeal – the highest judicial forum in that country – have gone out of their way to help someone who was turned down, first by government officials, then by the Supreme Court and finally by the appeal court itself.
Mervin Jezabel Barbe, the woman at the heart of the story, is transgender. Born in Seychelles in 1972, she moved to Italy and had gender re-assignment surgery in 2003. In 2007 the Italian courts recognised her changed gender and later that year she obtained an Italian identity card reflecting the change.