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.

How a President ‘captured’ the judiciary

WHAT might a “captured” South African judiciary and judicial appointment system look like?
While chilling stories from leaked emails suggest South Africa is no longer being run by its own president, that right having been bought by the wealthy Gupta family, many people find comfort believing that SA’s judges continue fearless and independent. But what if President Jacob Zuma ignored the Judicial Service Commission? What if he appointed whomever he liked as a judge or acting judge, despite what the constitution said?
What, in short, if he “captured” the judiciary and the JSC?
It would probably look rather like Botswana, at least according to that country’s critics.
Botswana’s president, Ian Khama, seems a strange mix of political and personal instincts. On the one hand he ordered visiting homophobic US “pastor” Steven Anderson arrested and thrown out, saying Botswana didn’t want his “hate speech”. Then there’s Khama’s outspoken criticism of Zimbabwe’s Robert Mugabe along with other public positions that might indicate support for human rights.
But strong and growing voices from inside the country claim the opposite, saying that human rights, free speech and the rule of law are not respected by Khama and his government despite a façade that often fools outsiders.
Khama has already announced he will step down next year. Whatever analysts ultimately conclude about his term of office, however, no-one would dispute that he has had a significant impact on the bench. He has been at the centre of several serious disputes on judicial issues and the courts have found him on the wrong side of the constitution over the judiciary.
One such case was brought by the country’s law society. The lawyers were fed up with how Khama had forced a change to the way judges were chosen. They said he acted as though he were free to appoint anyone he wished to the bench, and they challenged Khama’s right to refuse to appoint a candidate put forward by the JSC. Their case focused on a key provision of the constitution. It says the president must appoint judges “in accordance with” the JSC: did that phrase mean he was obliged to appoint someone whose name was sent him by the commission, or did it mean he could reject nominees, without explanation, and appoint someone else?
In the years before this, after the president previously rejected names from the JSC and made his own appointment, the commission adopted a new system – they sent him a list of several names from which to choose. The law society believed this was not constitutional and prepared to litigate when the opportunity arose.
In 2015 the JSC interviewed four candidates for a vacancy and decided to recommend attorney Omphemetse Motumise. Khama refused to appoint him. This time the law society was ready to act. The high court found against the law society, but in the appeal court, four of the five judges said Khama was wrong and that the disputed constitutional phrase required him to appoint someone whose name was put forward by the commission.
What has happened since then is almost as significant as the judgment itself. First, the president has simply ignored the court – Motumise has still not been appointed, even though the appeal court gave its decision in May. Now the question is whether the law society will have to go back to court for an order that Motumise be appointed. It also raises the question whether the commission’s task is complete once it has sent the president the name of a candidate recommended for appointment: does the commission have a further duty to ensure those it chooses are actually appointed?
The second development is that Khama has gone on the offensive. Apparently hoping to ensure that in future the JSC would choose people of whom he approves, he appointed his permanent secretary as a member of the commission.
A shocked article in the Botswana Gazette described this as compromising the independence of the judiciary, and noted that the permanent secretary was obliged to perform “any function the president might assign”. The permanent secretary was the administrative head of the office of the president, a top advisor to the president and the head of the civil service with an executive position as a secretary of cabinet. It was, in the view of legal experts, little different from Khama being a member of the JSC “and then making recommendations to himself as president”.
The JSC in Botswana has six members. Five are direct appointees of the president: the chief justice and the head of the appeal court, both of whom he is mandated to appoint without reference to the commission. Then there is the chair of the public service commission, another presidential appointment, with a fifth position – a non-lawyer – also directly appointed by the president. That post has now filled by the president’s permanent secretary. The only member not appointed by the president is the sixth commissioner, someone chosen by the local law society.
Two years ago, the Sunday Standard wrote that a growing number of people in Botswana had the same bad dream in which Khama was “turning the judiciary into his lap-dog”. Whether or not that is his intention, however, fate has been generous to him: his time in office has coincided with a number of judicial vacancies. The Standard noted that during his presidency he has appointed all the permanent members of the appeal court, and as at 2015, he had appointed 11 of the 22 high court judges. Since that report he has appointed even more judges.
But the biggest challenge yet might lie ahead: who will he leave in office as chief justice? Under Botswana’s hierarchical judicial system this post should be settled in terms of seniority. With the chief justice due to retire even before Khama stands down, the question of a replacement must be resolved before the president goes. It won’t be easy. The next most senior judges are either due to retire before Khama steps down, or else have indicated unwillingness to stand. And after that cohort comes a judge who has already had a run-in with Khama, Judge Key Dingake, someone with a strong human rights record. The question now being asked is whether Khama will give him the nod, or if the final period before the president quits office will be marked by yet another major tussle over judicial appointments.