Bitter blow to bosses

By Carmel Rickard

WHEN Zimbabwe’s supreme court interpreted the law to mean that companies could dismiss workers with just three months’ notice, without offering any packages or even following any specific retrenchment procedures, the decision lit a fuse.

Job security throughout the country was suddenly a major issue among workers, with widespread concern about mass lay-offs. Rightly so, it would turn out.

As the constitutional court explained in a recent decision, reaction to the judgment was “a rush by employers” to end employment via three months’ notice. It became “a strategy adopted by employers countrywide to get rid of employees to save costs in an environment of economic difficulties.”

Judge removed for corruption loses reinstatement appeal

ONE of the most painful periods in Kenya’s judicial history has been re-opened, with an appeal by former judge Tom Mbaluto against his 2008 dismissal from the bench for corruption. The former judge was dismissed after a tribunal sat to hear allegations against him and recommended his removal from office. Dissatisfied with the outcome, however, he has brought two court challenges contesting his removal, the second of which has now been finalized by Kenya’s court of appeal.

By Carmel Rickard

Justice for Malawi’s children

IN a “remarkable breakthrough”, the Malawi high court has come to the rescue of children unlawfully held in adult prisons. Some of the children were imprisoned in a jail where, according to an official 2016 parliamentary report, no food was available to inmates and where blankets were in short supply. Both the Constitution and statue say that children in trouble with the law may only be held in special places of safety or reformatories, and the high court has now ordered the authorities to move the children within 30 days.

Mbulelo Mtati – a bad case of injustice

Carmel Rickard

As I write this I feel deeply ashamed; ashamed of a legal system that delivers unspeakable injustice to a poor man trying to provide his family with a home.

That man is Mbulelo Mtati. He is a cleaner at Rhodes University in Grahamstown. No-one could call him well-off.

In October 2010 he signed a deed of sale to buy a property from sellers Mr and Mrs Bacela. The asking price of R50,000 was to be paid on registration of transfer. That transfer would be passed by the Bacelas’ conveyancer, the respected Grahamstown legal firm, Whitesides.

Land claims backfire as courts rule against communities

FOR everyone involved in or affected by land claims in South Africa, May 2018 must go down as one of the most disastrous months yet in the history of attempted restitution: in every one of the decisions by the land claims court during that month those communities who brought cases to court lost out. So what happened?

By Carmel Rickard

MANY thousands of land claims are still unresolved, and they come only very slowly to court. So it is a striking statistic that of the four cases in which judgment was given last month, the land claims court should, in all of them, find the claimants on the wrong side of the law.

Kenya’s Capital Markets Authority klapped for “violating natural justice”

Carmel Rickard

WHEN the statutory authority supposed to protect an entire country’s capital market including the stock exchange is found to have acted “in total violation of the principles of natural justice” it must mean, at the very least, that the judgment concerned is worth reading.

And indeed it was. This is a case brought against the capital markets authority (CMA) of Kenya by the former chief financial officer of a major supermarket chain, Uchumi. A long-established business, with a wide range of offerings, it is in deep financial trouble, at least in part because of the pressure from new stores out of South Africa and elsewhere.

So how DO real anchovies taste?

FOR years I have wondered whether “real” anchovies tasted significantly different from those in little tins and glass pots: would they be as different as fresh asparagus is from the tinned sort?
When I spotted a new-look variety of the little fish in Woolworths the other day, larger and white rather than the usual small dark pink, it seemed my chance – short of a holiday in Portugal – to find out.
Then two things happened. When I got home I turned over the packaging and found it was labelled “product of Morocco”. The same afternoon I read a major new opinion by the advocate general of the European Union’s court of justice on a dispute referred by the UK courts. The dispute concerns a fishing contract between Morocco and other EU countries, now under scrutiny because the Western Sahara Campaign, a UK lobby group, claims the contract is unlawful.
The task of an EU advocate general is to consider submissions to the court in all matters that raise a new point of law, and then to write an impartial opinion by way of advising the court on the legal way forward. The judges are not obliged to accept these decisions, though they most often do.
In this case, advocate general Melchoir Wathelet, formerly a judge of the European court of justice, concluded that the fishery agreement between the EU and Morocco was invalid. The dispute is part of a larger fight over self-determination for Western Sahara, occupied by Morocco since the mid-1970s. While Morocco claims the territory as its own, the International Court of Justice held, in 1975, that the evidence had not established “any tie of territorial sovereignty” between Western Sahara and Morocco.
Just last year, South Africa was drawn into this continuing international argument when a ship loaded with phosphate, mined in Western Sahara by a government-owned Moroccan company, stopped here. The Saharawi Arab Democratic Republic (Western Sahara) won an order for the cargo to stay in South Africa while the issue of ownership of the phosphate is sorted out.
At the time, officials of the Moroccan mining company were scathing about the decisions of the local courts that the cargo should stay in South Africa, but the opinion of the advocate general in the fishing case is even stronger in finding that Morocco has acted unlawfully. And the UK judges who referred the dispute to the EU court consider that even though Morocco claims Western Sahara as part of its sovereign territory, this “continued occupation” by Morocco amounts to an unlawful occupation by another state.
The estimated annual value of the disputed fishing contract was EUR40-million, to be paid to the Moroccan treasurer-general, with the Moroccan authorities having full discretion as to how the funds would be used. But virtually all the fish – more than 90 percent – were to be caught in the waters off Western Sahara. In other words, the natural resources of that territory were being economically developed and disposed of by Morocco.
EU decisions had to respect human rights in order to be lawful, Wathelet pointed out. But the situation in Western Sahara has been recognized as a grave breach of the rights of the people of that territory and Morocco’s occupation was not lawful. The EU was thus not entitled to have contracted with Morocco to use the resources of Western Sahara and the fishing agreement was invalid.
Wathelet’s conclusion will now be considered along with other documentation by the court itself in deciding the fishing contract dispute.
That decision isn’t expected any time soon, certainly long after the sell-by date of the anchovies. To me, though, Wathelet’s opinion is so persuasive that the anchovies will have to be returned, along with a copy of that opinion to explain why.