Judges silence “rumble of malice”

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.

Running out of road …

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.

Top court offers advice on gender change struggle

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.

Mvoko wins appeal: SABC old guard now completely routed

It’s a busy afternoon, writing columns for the weekend deadline, but I have had to take time out to read an important judgment, delivered by the Supreme Court of Appeal today in the case of sacked SABC journalist, Vuyo Mvoko. The decision makes for very satisfying reading. For example, the judges found the SABC must reinstate his original contract, schedule his work as before – and pay his costs. And they found the SABC had behaved very badly. Here is a sample paragraph: “The highest standards of journalism and of integrity in public administration can rightly be expected of the SABC. The political interference complained of by Mr Mvoko is, as already pointed out, uncontested. It is inexcusable and rather than rendering Mr Mvoko liable to disciplinary action it calls for an enquiry into the conduct of the SABC in its role as public broadcaster.” #SABC8

Lessons from Rwanda for SA

WHEN the government of Rwanda recently applied to the United Kingdom’s secretary of state for the extradition of five alleged genocidaires, it claimed a “sea change” had taken place in the way Rwanda’s courts operated. Concerns expressed by the UK courts in earlier judgments had now been met, and the suspects should be extradited to face trial in their home country.

But when the UK’s high court of justice examined the evidence, the judges disagreed with this assessment. In their important recent decision, they reviewed crucial information on the situation in Rwanda and refused the appeal saying that if the five were extradited to their home country they “would be at risk of a flagrant denial of fair trial”

“Sincere belief” in witchcraft no bar to death penalty

Belief in witchcraft will no longer automatically keep the death penalty at bay in Zambian murder cases, according to a landmark new judgment of that country’s Supreme Court.

Five judges of Zambia’s highest court, including the Chief Justice and the deputy Chief Justice, have agreed that the days of referring to one’s ‘sincere belief’ in witchcraft to get around the death penalty are over. They also slammed believers in witchcraft for targeting women and the elderly.

The court was considering the appeal of two men convicted of murders directly related to witchcraft, and given life sentences.

When a judge goes rogue …

Ever since her appointment as Chief Justice of the Seychelles in 2015, Mathilda Twomey, the first woman to hold this position, has been a target of sexist behaviour and threats by a particular senior colleague on the Bench. But though this judge, Durai Karunakaran, was unanimously recommended for dismissal almost a month ago, by an impeachment tribunal citing ‘serious and gross’ misbehaviour – including ‘forging orders of court’ – no further steps have been taken against him. Instead, the Chief Justice herself is now threatened with an impeachment inquiry. Carmel Rickard takes a look at the tribunal report on Karunakaran and at recent legal changes that threaten judicial independence and the rule of law in the Seychelles.

Magistrate’s mistake means murderer, jailed for life, will walk free

Just read a decision delivered today from the full bench of the high court in Mthatha concerning Mzoxolo Dyantyi, an accused found guilty of murder and sentenced to life imprisonment.
But the regional magistrate sat alone and did not inform the accused that he was entitled to have two assessors sit with the magistrate to hear the matter. The accused appealed, and today the full bench ruled that since the court was not properly constituted, conviction and sentence were to be set aside and the accused released immediately.

This is home-grown graft – in any language

A SOUTH AFRICAN advocate and a firm of attorneys could be in serious trouble with their professional bodies after a high court judge said they had acted “unprofessionally or worse” and ordered that a copy of his judgment be given to the relevant bodies to consider disciplinary action.
This tough action against advocate Zixolisile Feni and attorneys Makhafola & Verster is part of the on-going tale of fraud, corruption, maladministration and incompetence at the Pan South African Language Board (PanSALB), a fiasco that has already cost the country’s tax payers many millions of rands.
In a further extraordinary move, Judge Neil Tuchten showed the court’s displeasure with the former chairperson of the board, Mbulungeni Madiba, by ordering him to pay the costs of the case including both junior and senior counsel.

SA court battle puts international spotlight on Africa’s last colony

WORKERS’ Day, May 1, 2017 and unknown to virtually any South African enjoying the public holiday, something extraordinary was unfolding in Port Elizabeth. Something with far-reaching implications for international human rights and for international trade, a novel legal situation highlighting the plight of a little-remembered, embryonic state – Africa’s last colony, the Western Sahara.
Early that morning, the ship, “N M Cherry Blossom”, arrived at Coega, the specialised port on the outskirts of Port Elizabeth, to take on fuel. Its cargo was phosphate worth about 6m USD, bound for New Zealand. That much was clear. But just who owned the cargo is a much tougher question and one that the courts in South Africa have now agreed to help resolve.
The night before the “Cherry Blossom” arrived, the Saharawi Arab Democratic Republic (SADR) and the Polisario Front had brought an application before Judge Elna Revelas. They asked for a temporary order to keep the ship’s cargo in the area of the court’s jurisdiction and for the sheriff to attach the cargo pending the outcome of their action.
She granted the temporary order, subject to a confirmatory affidavit being filed once it arrived in South African territorial waters, and set 18 May for a full hearing on the disputed order. Through the night, as the Cherry Blossom closed in on the crucial 12 nautical mile zone off the South African coast, Polisario members all round the world, along with their lawyers in South Africa, were all watching its progress on their computers.
Once the ship arrived, it was a comparatively simple matter to serve the order. But come 18 May, when the question of confirming the order was argued, a specially constituted full bench of the high court presided, given “the novelty of the matter and the complexity of the international law issues” involved.
Last Thursday those three judges delivered their decision: they approved the order that the sheriff attach and hold the cargo in Port Elizabeth and remove the ship’s registration documents and trading certificates. However, the order provides that, if appropriate security is put up, the cargo would be allowed to continue its journey.
Now the SADR and Polisario have a month to issue summons for the return of the cargo, failing which the order lapses. Once summons has been issued, the dispute is likely to feature on the court rolls in South Africa for years ahead, with possible applications and appeals even before the hearing about ownership of the cargo.
There is no dispute that the phosphate comes from the Boucraa mine in the northern part of Western Sahara. That mine is operated by Phosboucraa, a Moroccan company and a wholly owned subsidiary of OCP, another Moroccan company, the largest exporter of phosphate rock and phosphoric acid, and producer of fertiliser extracts, in the world.
But why is a Moroccan company mining phosphate in Western Sahara, its southern neighbour? Because Morocco claims the area as its own. And that is where the issue of Africa’s last colony comes in.
From 1884, during the height of African colonisation and for nearly a century, this was known as Spanish Sahara. Polisario was formed to liberate the country and represent its people. In 1976 Spain eventually pulled out, but not before offering its former colony – not to its own people, but to neighbouring Morocco and Mauritania. In the meantime, however, the Polisario had claimed the Saharawi Arab Democratic Republic as a sovereign state.
Although Mauritania has since abandoned its claim, Morocco holds much of the area in a military grip. Anticipating by decades US President Donald Trump’s idea of a security “wall”, Morocco has built a rock and sand barrier three metres high and 2 700 km long, across the desert. Some 80 percent of the country is on the western side of this berm, “occupied” by Morocco. For additional security this part is controlled by 120 000 Moroccan troops, while literally millions of landmines are embedded in the sand around the length of the berm itself.
The question of the status of Western Sahara has proved intractable, with the United Nations so far unable to reach any finality. Key members of the Security Council have strong bonds with Morocco and appear reluctant to back self-determination for the region against the wish of their ally.
If this sounds familiar, you may be remembering pre-independence Namibia. After the Germans quit their former colony, it was “colonised” by its neighbour, South Africa, and for a long time that neighbour-coloniser tried to hold on in the face of world disapproval. Instead of a berm, however, South Africa waged a more conventional war to maintain its hold. Just as the war in Namibia was complicated by international politics and the cold war in particular, so is the situation in Western Sahara complicated by international terrorism with a number of security reports warning that disaffected refugees from Western Sahara are easy prey for extremists.
Seen against this background the phosphate cargo becomes almost a symbol. It was mined by a Moroccan company, operating in land that Polisario describes as unlawfully “occupied” by Morocco. Polisario says the area’s mineral wealth belongs to the SADR, not Morocco, and money from the sale of the phosphate belongs to the people of the land where it was mined.
That question – to whom does the phosphate belong? – is what the court has now agreed to consider. If to Western Sahara, then the mining company would have to relinquish the cargo. No one has suggested the phosphate belongs to Morocco. Perhaps the best alternative candidates might be the New Zealand company that has bought the fertiliser and that is stressing about the delay in arrival. But reports in the New Zealand media quote the buyers there, Balance Agri-Nutrients, as saying they have not yet paid for it and that the cargo still belongs to the mining company.
The fact that the full bench decided South African courts could consider the dispute, and that the vessel must stay put pending that decision has infuriated OCP. It has declared its “outrage”, and “denounces” and “contests” the decision of the court which, in the view of the company, “has no jurisdiction to rule” on the situation.
According to OCP, the court’s decision disregards established international law principles and the ongoing UN process, and “impedes international trade in South Africa”. The company also contrasts the Port Elizabeth decision to hear the case with a very similar case brought in Panama earlier this month, again by the SADR and Polisario, contesting ownership of a cargo. In that case, the judge declared the court had no jurisdiction to entertain the matter, a view that the company “commends and welcomes”.
Back in Port Elizabeth, however, the full bench quoted key findings of the International Court of Justice: Morocco has no claim to sovereignty over Western Sahara; it acquired control of the area by force, contrary to customary international law. The natural resources of a territory may only be exploited on behalf of its people “if to do so will be for (their) benefit”. Yet OCP does not claim to have mined the phosphate “with the consent of the people” of the territory, and “they do not and cannot claim to do so on behalf of its people”.
As to the criticism that the court should not agree to hear the case because it affects the legal rights of Morocco, the judges say that Morocco did not assert any right or interest in the cargo. It was not a party to the case. If a South African court found that the company’s exploitation of minerals was illegal this “can have no effect upon the legal rights of Morocco”.
It’s a fascinating judgment, important for the way it interprets the law and how it highlights a continuing international disgrace – the failure of both the UN (where Morocco is a member, but not Western Sahara) and continental bodies such as the African Union (of which both are members) to resolve the issue of the continent’s last colony. There are even suggestions that the case could play a significant role in resolving the dispute because of the pressure it might put on the parties – and other world players – to focus on ending the stalemate.