A TOP SADC-Lawyers’ Association official says this week’s high court case on President Jacob Zuma’s role in removing legal rights from millions of people living in SADC countries, presents “a unique opportunity” for SA judges to defend constitutionalism and the rule of law in the region.
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.
CONVICTED Dutch millionaire war criminal and arms smuggler Guus Kouwenhoven is sitting in Cape Town, determined to resist extradition to Holland where a 19-year jail terms waits for him. He has been convicted in his absence of crimes relating to Liberia’s decades-long civil war. But the SA courts are not the only ones to become involved in the aftermath of this war: thanks to the help of an NGO that coordinates international lawyers and investigators, war criminals from Europe and Africa have been caught, tried and sentenced for technical immigration offences including lying and perjury as they try to escape their just deserts at home. Now a much-feared Liberian warlord, “Jungle Jabbah”, awaits his sentence in the USA.
IMAGINE this: a country’s attorney-general comes to the highest court claiming, in effect, that this self-same court was complicit in “slavery and forced labour” via an unjust and flawed judgment, and therefore ought to reconsider and change that decision.
Though it sounds fantastical, it is exactly the argument outlined by the Zambian attorney general in a case brought to get the constitutional court to change its mind and decide it had made a mistake.
The case, and the AG’s argument, were born out of furious response to the constitutional court’s August 2016 judgment in which the five judges held that, under the constitution, Zambia’s more than 60 ministers and deputy ministers were not legally entitled to hold office after parliament was dissolved. Payment they had received while unlawfully acting in office had to be repaid.
Though the constitutional court’s sensational decision was delivered more than a year ago, the repayment question is still being hotly contested as the ministers have tried to avoid putting their hands in their pockets.
Most recently the affected ministers tried to persuade the court to reconsider the repayment question via a petition brought on their behalf by the AG.
In that challenge the AG filed papers saying that, even though it was the apex court, the constitutional court was entitled to overturn its own decisions when justice demanded. And what situation more obviously cried out for justice than a decision ignoring provisions barring slavery and forced labour, and ordering that people not be paid for work they had done?
But the AG never had the chance to make this part of his case in oral argument. The ground was cut from under his feet when, in one of its most recent decisions, the court found he had no legal standing to represent the ministers.
During the run-up to the nationally divisive and hotly contested elections of August 2016 the court was asked to consider the position of the country’s provincial and national ministers and their deputies. Did the constitution provide for their term of office to end when parliament dissolved ahead of the elections? If so, should they have received any payment after parliament ended?
The five-person constitutional court was unanimous in its decision: the constitution did not provide for the ministers to continue in office once parliament was dissolved, and all they had been paid after that date had to be repaid.
Zambia’s AG, Likando Kalaluka, faced a major hurdle when he went back to the court on their behalf. The constitutional court is the end of the road for litigation, so he had first to persuade the court to consider the possibility of an appeal against the earlier decision. To back his position that the court had erred he made reference in the papers filed before the hearing, to the August 2016 judgment producing an injustice like that of slavery.
Two others intervened in the same case, however, the Law Association of Zambia (LAZ) and an opposition party official. Between them they raised several preliminary issues, the most important of which was to question the AG’s authority to act for the unhappy ministers.
In its long-awaited judgment – it took a year to complete and deliver and was the second last decision handed down in 2017 – the court dealt extensively only with the preliminary question of the AG’s legal standing.
As the former ministers were now private persons, the court had to decide if the AG was allowed to participate in private proceedings and/or represent private persons.
From the functions of the AG listed under the constitution the judges concluded that the AG “had only one client, the government of the republic of Zambia”. If the AG had any role in private litigation it was only as an “intervener, in order to protect the public interest”.
The AG had argued that he was motivated to act in the public interest in this case and that the fact that private individuals would benefit as a result should not be held to prevent him acting.
But the judges found that while the action would benefit the former ministers “substantially”, it would not “further the interests of government in any foreseeable way”. If the AG were allowed to act in the matter he would be “representing the interests of the ministers in their capacity as private persons”. The AG’s connection to the ministers ended when the court concluded that they had to vacate their offices. No matter how “well-meaning” his intentions might be, he had no legal standing to act on behalf of the ministers.
In view of this decision, the court said there was no need for it to consider any of the other issues raised by the AG, for example, whether the constitutional could consider an appeal against its own decisions.
Despite the extensive delay, for which no reason was given, the case is clearly important for several reasons, most obviously in clarifying the powers of the AG.
It is also significant as the judgment appears to speak from a position of judicial strength, unwavering in holding to the court’s earlier decision. This is important since the appointment of at least one of the court’s members was strongly criticized because of her direct family relationship to President Edgar Lungu: while she recused herself on one occasion from deciding a case in which he was involved, citing that relationship, she has also given a judgment favouring him in an inter-party dispute. If the court were seen to waver on its strong initial finding it could well be interpreted as evidence of internal cracks over the court’s independence.
As to the other issues raised, the court has, for the moment at least, avoided having to consider whether it has the power to reconsider its own decisions: this is just as well since the fledgling court is still establishing its authority in Zambia where it has been in existence for less than two years.
WHEN the much-pilloried Shaun Abrahams, national director of public prosecutions, eventually leaves office, we will all look back with wonder at what a sheep can do.
We already know of his bizarre sense of priority crimes requiring urgent and undivided attention – just contrast, for example, his determination to investigate and prosecute former financial minister, Pravin Gordhan, with his complete indifference to the gangsters running the country with the seeming connivance of the head of state.
Whether this is due to the supposed timidity that has led to his nickname – Shaun The Sheep – or because of other even less flattering personal attributes, is not clear at this stage, but a bizarre case from the sheep-farming district of the Eastern Cape emphasizes the problem.
It’s the matter of the national director of public prosecutions – yes, Abrahams – acting against a hapless small-time local building subcontractor, Frans Absolon.
On 26 August 2016 Absolon and his friend, Johann Fleurs, were driving in Absolon’s bakkie between Cradock and Cookhouse when they came across an accident: a large truck carrying 432 sheep had overturned. Only 43 had survived.
Absolon and Fleurs stopped, joining police, traffic officers, ambulance crews, members of the SPCA and general gawkers at the chaotic scene. Owner of the sheep, Steynsburg farmer Frederick Bekker, soon arrived with a vet.
In a subsequent affidavit Bekker said his broker told him the dead sheep belonged to his insurance company and he could not give them to anyone, not even to the vulture sanctuary that had requested the carcasses. His focus was on capturing and removing the live animals, and it was in any case too dangerous to try to stop determined looters taking away the dead sheep.
Three hours later Absolon, who claimed Bekker gave him nine carcasses as thanks for his help at the crash site, headed home with the dead animals in his bakkie and shared with them Fleurs.
Fast forward a few days, and we find the two men already arrested and charged for “possession of property for which they had no explanation”, though the charges were later withdrawn. And within a couple of weeks Absolon’s bakkie was impounded on the authority of the NDPP as “integral to the commission of the crime” with which he was charged.
When the NDPP brought a later court application for the bakkie to be forfeited to the state, Absolon opposed the action. Now Judge Elna Revelas has made her decision: a forfeiture order would be “arbitrary and a misdirection”, she said. The NDPP must return the bakkie at once and pay Absolon’s legal costs.
The judge said she had to consider the question of proportionality. Even if Absolon did not have Bekker’s permission to take the dead sheep, and even if the dead animals in fact “belonged” either to Bekker or to his insurance company, there were other factors to consider.
The law under which the NDPP wanted to confiscate the bakkie was intended to combat “organized crime, money laundering and criminal gang activities” but nothing that Absolon did fell into these categories. There was no premeditation; he did not plan or “organize” the sheep-snatch in advance and it was completely coincidental that he was on the scene at the time of the accident.
It was difficult to imagine what Bekker or the insurance company could have done with the dead sheep, she said, and there was no “proportionality” about the NDPP’s strategy. The bakkie was valued at around R90 000, for example, while “the value of the nine dead (but insured) sheep, which were in effect roadkill” was R13 000.
So there you see it: the NDPP in action, pulling out all the stops and producing truly urgent, efficient and effective use of time and resources to combat the national scourge of trafficking in roadkill.
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.
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