Altum Sonatur - The Future Edition

Official UCT law students’ magazine

The Future What’s that in the sky?: The use of domestic drones.

Four years none the richer: the fate of the 4year llb.

onsent in the year 3000: the robots strike back

Net NEUtrality: the future of free internet Spy wars: Legal

Through the google glass: a few potential legal issues

implications in Germany )s the USA

Quid quid latine dictum sit, altum sonatur.

Volume 5, Issue 3.

Ten of the longest cases in history

CONTENTS 2 Net Neutrality: The

Thoughts from the Editor

Future of Free Internet

3 Spy Wars: Germay, US & the Legal Implications

4 Through the Google Glass: A

Goodness, Grotius and me

few Legal Implications .

reams of paper for us to access our reading material; our computers are stocked with the fastest and most efficient software programmes and with adroit skill, our lecturers still get weak at the knees for a Photostat machine.

Sarcasm may be perennially low on the wit scale but it tends to get the point across.

5 Legal Outsourcing: Threat to Traditional Firms

7 Meet Your Replacement, Watson: Machines vs Lawyers?

.

8 Lee: A Missed Opportunity for a Rule of Loss of Chance in Delict?

9 10

Four Years None the Richer: The Fate of the Four Year LLB Humans of Kramer

11 What’s that in the sky? Use of Domestsic Drones

in the Year 3000: 12 Consent Robots Strike Back!

14

Big Youtube & the Exclusion of Independent Artists

15

The Patent Debate: Future of Intellectual Property

16

An Argument ‘for’ Compulsory Community Service- The SLSJ writes for us. .

ENSafrica writes for us .

17 19 21 22

In Class

Ten of the Longest Cases in History

By Kevin Minofu

I was not surprised that in my research for this editorial I did not find any movies or books, set in the future, which had a lawyer as a crucial character. Although I stand to be corrected, the fact that we, as bastions of the values of tradition and legacy, are not considered crucial clogs in future brave new worlds is indicative of our stereotype as cautious Luddites. We cite the way things were done decades ago as a reason for the way we should do things now: atavistic and doggedly resistant to change.

Team & Contributors

To be fair, this may be slightly hyperbolic. A look at our faculty may prove my point too strong: we are at the cutting-edge of the process of printing thousands of

Anything said in latin, sounds profound.

Considering that, it’s crucial to ask ourselves where we will stand in this future that we seem most unwelcome to.

A future where our conception of the family will change with the ability to have babies with three biological parents, where science will create new delicts that may even bring Professor Fagan to a furtive head scratch and also the ability to travel to weird and wild galaxies will bring even weirder conundrums for us to debate and for disgruntled South Africans to emigrate to. But what do we do when the swift march of progress reaches our gates?

We adapt. Just like we always have.

This edition is our sneak-peek into that future; be it in the next few years or long after we have departed. We look at the impact a changing world will have on the way we think and practice the law, the small incremental developments currently occurring in our law, and the way we seek to teach it. Technology is the industry of change and the impetus for progress and our embrace of it will likely shape how successful us humble paper-pushers will be in a crowded world. At the same time however, Zadie Smith reminds us not to be too doe-eyed about this future when she wrote, “The past is always tense, the future perfect”.

A good history of dystopian films shows us that. So our commitment to legal principles and reason are vital tools for traversing this maze. Imagine, a dystopian world inhabited by lawyers? No wonder they have never made a movie about it. No one has the guts.

Net Neutrality: The Future of Free Internet

By AmyAmy-Leigh Muir We

these

open internet, recently endorsed rules

As

truths to be self-

hold

that create a two tier system which

companies have not felt the same way

evident,

that

one

would

expect,

telecom

all

would allow ISPs to charge companies

about net neutrality. Essentially, they

men websites are

to send content to consumers more

argue that prioritisation is necessary for

created

quickly – a move that, if established,

future telecom innovation. They argue

would

that telecom providers should have the

equal.

Since its inception,

completely

undermine

net

the internet has been predicated on

neutrality.

ability to provide preferential treatment

certain principles established to ensure

Proponents of the open internet (of

in the form of tiered services as the

a free and open internet. One such

which both civil society and some huge

added income from such services could

principle is that of ‘net neutrality’ - a

corporations

and

be used to improve broadband access.

boring term- but one that is important

Amazon form a part) argue that ending

The ISP’s however conveniently ignore

and currently at the centre of a huge

net neutrality would allow ISPs to charge

most of the arguments set forth by the

debate in the USA.

content providers, no matter their size,

proponents of net neutrality and there

At its most basic, net neutrality means

for preferential access whereby their

is absolutely no denial, however, of the

that all legal data has to be treated

data packages would be sent and

arguments that an end to net neutrality

equally, no matter what it contains, or

received more quickly. ISPs would be

would inhibit freedom of expression or

who created it. It requires that Internet

free

stifle the ‘free market’ on which the

Service

Providers

(ISPs)

to

such

enter

as

into

Google

economically-

stream

beneficial partnerships with content

internet currently operates.

everything that is legal without filtering it

providers which could lead to massive

Whilst the debate on net neutrality

for users. No site is to be given

internet commercialisation, with ISPs

rages on in America, it is somewhat lost

preferential treatment nor is any type of

relegating

data (be it emails or video streaming) to

content to an internet slow lane; while

be discriminated against. This is based

commercial

primarily

on

the

corporations) receives

prevents

ISPs

from allowing

prohibition

that

important

public

content

interest

(from

big

faster access

faster

speeds. The impact on freedom of

access to certain big websites that can

expression is thus both evident and

afford to pay ISPs to be given this

frightening.

preference

over

other,

smaller,

websites. Net neutrality is reason that

Advocates of net neutrality also argue

the internet is a largely level playing field

that a free and open internet stimulates

where

start-ups

can

supplant

competition and helps prevent unfair

(like

Facebook

pricing practices by ISPs. They warn that

on most South Africans. This is not

supplanting Myspace) and people in

by charging ‘every Web site, from the

because we are indifferent towards

South Africa can read an article written

smallest blogger to Google’, network

potentially losing a neutral internet but

by a tech-head in India just as easily as

owners may be able to block competitor

rather because the net has never been

they can read the budget speech on our

Web sites and services, as well as refuse

neutral for us. In a country like South

own government’s webpage.

access to those unable to pay, thereby

Africa, the economics of supplying data

Whilst the internet in the US has since

making it much harder for new entrants

services means that few existing data

its inception been grounded on this

to establish themselves – a move which

packages offer neutrality. Most offerings

principle, net neutrality is currently at

would stifle innovation and competition.

from ISPs give precedence to browsing

risk and many people are worried. The

For example, in the absence of net

and email while limiting the speed of

debate between ISPs and pro-neutrals

neutrality, it would have been possible

video, peer-to-peer data and torrents.

arose

for

special

South African consumers or companies

arrangements with ISPs to block the

can get truly uncapped, unshaped,

emergence of Facebook.

‘neutral’ internet, but at a substantially

established

brands

when

Communications

the

Federal Commission

(America’s version of ICASA), who have always stated their commitment to the

Quid quid latine dictum sit, altum sonatur.

MySpace

to

have

higher cost. As is often the case with

Whilst there is currently no legislation

start the debate about net neutrality in

technology, issues around access and

regarding net neutrality in South Africa,

South

quality of service tend to outpace the

ICASA has said that it plans to consider

regarding

legislation designed to regulate them. It

the issue of net neutrality. This move by

developed by ICASA or the Competition

may

ICASA in favour of net neutrality should

Commission. It is up to us to ensure that

attempt to ensure that ISPs or mobile

be lauded and supported.

the result of the changing conception of

operators in South Africa treat all data

If the battle for net neutrality is lost in

the internet is not reduced innovation

equally due to our comparatively poor

the US, then South Africa’s ISPs are likely

but rather access to diverse and new

infrastructure.

It is however entirely

to intensify their attempts to undermine

voices and opinion and a continued

reasonable to demand that they at least

net neutrality due to the financial

commitment to an internet that is free

treat the same sorts of data equitably.

benefit available. This is why we need to

and open.

be

unrealistically

idealistic

to

Africa a

and

demand

more

neutral

rules

net

be

Germany and the US:

Legal implications of the Spy Wars:

By Alex

launched into defensive action while

without the right to privacy there can

Swanepoel

the US stalls on its proposed No-Spy

be no true freedom of expression and

Agreement.

recently

opinion – and thus no effective

The CIA. Double

announced that her country will be

democracy. The recent unveiling of the

agents.

using

depth

Cyber

espionage.

Encryption

codes.

Classified

more

Merkel aggressive

counter-

of

espionage programs against some of

schemes

the

NSA’s

was

an

monitoring affront

to

its allies, including the US and Britain

international law. She further held that

like

(whose intelligence agency GCHQ has

‘the right to safety of citizens of one

something out of the latest Mission

also been accused of conducting

country can never be guaranteed by

Impossible blockbuster – but its real

espionage against EU member states).

violating fundamental human rights of

life, and it is fast eroding diplomatic

The German government expelled the

citizens

of

relations between two of the world’s

CIA station chief in Berlin. There are

position

that

superpowers.

also reports that Germany’s federal

international law is a murky one: it is

prosecutor is considering opening an

neither

investigation into the workings of the

Although

information.

It

all

sounds

German relations with the US have been a little chilly of late. The recent arrest

of

an

employee

of

Germany’s intelligence agency BND

for

selling

secret

government documents to the CIA is being called one of the biggest spying scandals in the post-war era. Just a week later, a second

German

government

employee was investigated for

The timing of these incidents is unfortunate

prohibited it

nor

has

in

endorsed. not

been

diplomatic

agents from prosecution who, at worst, will be exposed and sent home packing. It is therefore clear that there is significant discord between

espionage

and

international law. his

article

International

NSA’s surveillance programs.

The

holds

immunity serves to protect double

In

officer from the US State Department.

country.’

espionage

decriminalized,

‘the right to safety of citizens of one country can ne)er be guaranteed by )iolating fundamental human rights of citizens of another country.’

being in close contact with an

another

Functional

‘Tolerance Espionage:

Approach’,

of A

Christopher

The US maintains that its worldwide

Baker uses the functional theory of

Washington:

just

surveillance of foreign governments

international relations to show that

allegations

that

falls within the (self-designated) ambit

espionage is important in facilitating

Edward Snowden’s leaked reports

of

international

showed evidence that the US was

concerns of both civilians and foreign

countries. Baker argues that countries

spying on German Chancellor Angela

allies. But as Brazilian president Dilma

are more willing to cooperate with one

Merkel’s cellphone as well as on other

Rousseff contended at the UN General

German

Assembly in September last year,

months

for

earlier,

nationals.

Germany

has

Anything said in latin, sounds profound.

protecting

legitimate

security

cooperation

between

another because they have accepted

organizations

espionage as a powerful tool in

absolutely necessary. The difficulty lies

activities. However, their effectiveness

monitoring foreign behavior in order

in defining the legal scope of such

is doubtful.

to ensure international compliance. In

programs so that the right to privacy

this way, he argues, espionage helps

of

totally

Meanwhile, the current rift between

to

international

overridden in pursuing the ‘greater

Germany and the US is worrying. The

relations in order for countries to

good’. How can countries employ

diplomatic crisis could lead to a

effectively fulfill their own domestic

international law in order to prote ct

complete

their governments and citizens from

German alliance. The international

foster

peaceful

obligations.

the

and

individuals

individual

is

not

are

combatting

deceitful

breakdown

espionage

of

the

US-

illegal spying activities? They can refer

political climate is currently at a

The globalized and digitalized 21st

to the Vienna Convention of 1961, a

simmering level with the raging of the

century has brought with it new

codification of the rules under which

Russian-Ukraine crisis, the Middle East

threats that transcend international

embassies and diplomats conduct

conflict and Syria’s civil war. The

borders and increasingly

themselves,

complete

threaten

based

on

customary

cooperation

between

international security. The USA, as the

international law that dates back to

member states of the now G7 is

world’s presiding superpower with

the 16th century. It has been ratified by

therefore

military interests spanning across the

the US. The Budapest Convention,

international security. Shaky relations

globe,

is

most

between

2004, has criminalized Internet and

superpowers would only impair the

recent cyber-attacks launched on US

computer crime. In September of this

ability of the G7 to lead interventionist

energy companies by Russian cyber-

year, the UN General Assembly will

measures

hackers). The USA has long been

present a report of its 2013 resolution

example).

considered

censoring

world’s

the

illegal

electronic

‘protector’ and gladly carries the title.

surveillance of world leaders and

As such, US surveillance and spy

governments. These treaties show a

programs that facilitate the detection

general progression of support for

and

capture

of

dangerous

two

of

ensuring

adopted in 2001 and in force since

Western

to

to

extremism and terrorism (think of the

the

susceptible

imperative

the

against

Russia

world’s

(for

It’s an ending that I’m sure the team behind

Mission

Impossible

would

rather not contemplate for the next installment of the series.

Through the Google Glass:

A few potential legal issues

By Savvas Christodoulou Google is

Glass

about

elitist

Despite its many advantages, Google

of abuse. South African law on privacy

as

Glass or ‘Glass’ has raised several

restricts access to and dissemination of

as

concerns other than increased ‘Glass-

personal information. Generally, the law

‘wearable tech’

out’ (the habit of snubbing one’s

places emphasis on the privacy of

gets. Set to hit the South African market

surrounding in favour of the device).

children and health related issues.

by the end of the year it is estimated

Glass has fuelled debates regarding

Enshrined as a Constitutional right,

that initial costs will be around R12 500.

privacy concerns. Added to the list of

privacy is also protected in legislation

negatives: some critics warn against

and the Common Law as in Khumalo v

It is a remarkable machine. With a tiny

distraction of motorists using Glass

Holomisa. Whether or not this means

screen above the right eye enabling a

which has already prompted laws in

that Glass will be banned in public or in,

person to acces a wide range of

America banning its use while driving or

say, schools, is a question probably for

information by using bluetooth and wifi-

bicycling.

the courts if parliament does not

internet connectivity – all while talking

intervene.

to others. An in-built Google Maps

The main concern is filming others

system ensures geographic assurance.

without consent - being a “Glasshole” as

The Information Commissioner’s Office

It has a touch pad and also responds to

Americans now call it. There is also an

in

voice commands.

element of voyeurism striking debate

implications of Glass: for now, its use

about women being potential subjects

Quid quid latine dictum sit, altum sonatur.

the

UK

has

discussed

legal

seems fine for domestic or personal

Increasing security concerns have led to

Even world leaders who have task

use; but it warned being subject to the

more 24-hour surveillance in parts of

teams specifically aimed at protecting

same rules as CCTV. The Commission

cities. Cameras are now ubiquitous.

their privacy experience intrusive spying

also said it would mean easier access to

and hacking attacks. If Angela Merkel’s

secret or corporate information with

Orwell probably would have hated Glass

phone can be hacked for almost ten

market

as a spying mechanism for the state.

years by the National Security Agency

Does Glass really mean less privacy?

(America’s

Perhaps our ideas of privacy are at this

organization), what chance do ordinary

point merely delusions of grandeur:

citizens have?

value.

wearing

Glass

In

these

will

instances,

probably

be

regulated.

But the debate about privacy and

“Banning Glass will not change the fact

surveillance issues is not by any means

that

a new phenomenon. George Orwell

National Security Agency and a whole

feared the implications of increasingly

range of other actors—are collecting

intrusive states. Human privacy has

vast troves of information about nearly

diminished considerably over the past

all of us, nearly all of the time,” The

few decades as proliferation of camera

Time’s Whitney Boesel writes.

Google—and

Facebook,

largest

intelligence

the

devices spread into public spaces.

LPOs: The new Corner Boys?

Legal outsourcing and the legal profession

By Matilda Nengare The Wire was one of the best shows

and law. The LLB lauds itself on providing

law firms have recently begun to do so is

ever to grace our television screens. It

the graduate with a host of indispensable

through a process known as legal

was about the Baltimore drug trade.

and rare skills. Lawyers are trained to do

outsourcing. It is a trend which has been

Recurring characters in the show were ‘the corner boys.’ They were street dealers; the middle men.

Most lawyers would object most fervently to being compared to drug dealing youths. But upon reflection, lawyers really are akin to ‘corner boys.’ The only (and major!) difference is that lawyers are not providing drugs but legal services:

around since the early 1950s but

Faced with a massi)e case, they will outsource it to a company or LPO which will put in the hours, produce the work, be paid and go on its way until the next time its ser)ices are required.

it has grown exponentially since the global economic downturn.

Legal outsourcing is a practice whereby a law firm seeks the services of another, smaller law firm

or

specialised

support

services company, known as an Legal Process Outsourcing (LPO) in lieu of doing the work itself.

The firm may be domestic or

‘Men are unequal in wealth, power, intelligence and capacity to handle their problems. To remove this inequality… lawyers are necessary.’

what no one else can. They work to

foreign. The rates will be much lower and

simplify the affairs of men. Lawyers

the workload significantly reduced for the

provide answers.

lawyer in charge. In a nutshell, it is

Being in a position where their purpose To the man on the street, the law,

is to improve the lot of their clients, it is

imbued as it is with Latin and legalese is

inevitable that law firms themselves

often foreign and alienating. The job of

would seek to function most efficiently

the lawyer is to act as mediator of

while making lots of money in the

disputes and ultimately reconcile man

process. One of the ways in which

Anything said in latin, sounds profound.

division of labour. Instead of seeking to do everything itself, the law firm looks to another firm which specialises in that practice and can provide the service at competitive

rates.

The

practice

is

predominantly

drafting

way until the next time its services are

be forced into disclosure even in a court

contracts, research, writing, drafting of

used

for

required. This inevitably means that law

of law. However, disclosure to a third

pleadings and briefs: the leg-work. Other

firms will be hiring fewer employees and

party is deemed to be a waiver of the

practices which require actual contact

law graduates will have to fight even

privilege. LPOs would qualify as third

such as court appearances and personal

harder for jobs in an already unbelievably

parties. This is an issue which initially

negotiations are handled by the main law

competitive environment.

made many law firms reluctant to

firm.

outsource their work. Clarification and An unforeseen result has been the

certainty

The tasks which are outsourced are the

complete exclusion of the main law firms

jurisdiction

tedious and time-consuming tasks which

in some instances. Large companies

outsourcing

would normally be performed by interns,

have realised that they can cut their fees

prevalent as the practice could lead to

candidate

attorneys

and

as

to will

the be

laws

of

required

becomes

even

each before more

paralegals,

even further by severing ties with their

severely compromised client privacy,

although increasingly even the work of

big law firms and advisors, and going

undermining a fundamental principle of

senior lawyers is being outsourced. India

directly to the smaller firms or LPOs

the lawyer-client relationship.

has proved to be an incredibly popular

which would be handling the work in any

destination for the outsourcing of legal

case.

In conclusion, legal outsourcing was a

work. South Africa is also cited as an

creative

method

of

cost-cutting

increasingly popular definition for large

Thus, the practices have raised questions

introduced by law firms. However, it now

firms from oversea - offering quality work

as

legal

appears to be threatening the very

at competitive rates.

outsourcing signals the death of the

existence of those firms by rendering

traditional law firm. Questions abound

them redundant. Law graduates may be

While legal outsourcing undoubtedly

about the practical effect on the legal

forced to rather look to small firms, LPOs

saves money for law firms and simplifies

profession. One way in which law firms

or

the work of attorneys, it is also necessary

could protect themselves would be by

employment as opposed to big law firms

to ask some very serious questions as to

negotiating restraint of trade agreements

for traditional training contracts. This

the implications of the practice for

with their clients to ensure that they are

would raise new questions relating to

lawyers and clients alike.

not by-passed and remain relevant. Yet,

legal qualifications, licences and the

this option would obviously require the The use of cheaper alternatives means

practice of law in a global setting. It is an

clients to approach the law firms in the

that law firms no longer need to employ

area labelled ‘next-generation’ and the

first place!

future will inevitably provide clarity about

to

whether

the

rise

of

as many full-time employees as they traditionally have. Faced with a massive

Another serious problem is to be found

case, they will outsource it to a company

in

or LPO which will put in the hours,

confidentiality. Attorney-client privilege is

produce the work, be paid and go on its

protected by the law and lawyers cannot

Quid quid latine dictum sit, altum sonatur.

the

issue

of

client-lawyer

even

abroad

for

part-time

the future of the legal profession, in addition to raising further new issues.

One thing is undeniable- it is certainly an interesting time to be practicing law.

Meet your replacement, Watson: Automated Legal Machines

By Mpho Raboeane At

a

talk

articles and digital evidence – probative

and help lawyers understand all this

by

value and accuracy are imperative and it

information…this won't replace humans,

Norton Rose Fulbright starry-eyed law

conducted

is easy to miss important information

it will augment them."

students filed into the venue to hear

when

exactly what firms required from aspiring

unstructured data. Such an exercise

lawyers

and

perhaps

gain

sifting

through

a

sea

of

valuable

proves both time-consuming and costly.

insights on the legal profession they

The winning team’s selling point was that

hope to join in the near future. By the

by placing Watson in charge of research,

end of the presentation, the starry eyes

firms can recover time and costs, while

began to glisten but not at the prospect

delivering better legal outcomes. In turn,

of a bright and promising future; the

firms that leverage Watson's speed and

message from the speaker was clear:

efficiency can address the growing legal

The age of the machine is here.

You

trend towards "flat fee" billing and

supposedly “trained “ lawyers consider

research outsourcing. Flat fee or flat rate

yourselves obsolete in this bold future.

billing is a pricing structure that charges a fixed fee for a particular service as

Meet your replacement: Watson.

IBM’s

Watson

has

beat

opposed to charging per hour.

Jeopardy!

More of the Same?

Yet in the face of futuristic innovations such as cognitive technology, it is still widely

maintained

that

the

legal

profession will remain impervious to change. At the same talk, a third panelist Sarah Reed, general counsel of Charles River Ventures admitted that there had been efficiency innovations such as outsourcing, flat-fee billing and virtual law firms. She ascribed the profession’s stoic nature to the fraternity character of the legal profession and the ability of marketleaders to absorb any and all challengers.

Innovation:: Disruptive Innovation

So where does this leave budding

champions, is used in the medical field, concocted its own pastry recipe, has

IBM emphasises the relational aspect of

attorneys? Should we be disheartened

gone to college and fielded customer

Watson. Cognitive technology is poised

that firm jobs will soon be supplanted by

service calls. It is a cognitive technology.

to help enhance the way people interact

sleek new software? David Wilkins, Lester

It processes information like a human

with data and make decisions rather

Kissel Professor of Law and Director of

through its understanding of natural

than render them redundant. This view

Harvard Law School’s Program on the

language and method of hypothesis

was held by Michael D. Rhodin, senior

Legal Profession says, “I don’t think this is

generation. The latter is used to rapidly

vice president of IBM's Watson Group in

the end of lawyers. We’ll still have large

analyse relevant evidence and evaluate

relation to the legal field.

law firms doing very much what they do

responses from disparate data. Watson

today. But that will be a smaller and

uses this in conjunction with its ability to

At another talk about the future of law,

smaller

read and understand natural language.

this time at the Harvard Law School,

market.”

Finally, Watson has the ability to learn.

disruptive innovation on the market for

Through repeated use, Watson gets

legal services was discussed. Coined by

Julia Prats, Associate Professor at IESE

‘smarter’ by being taught by its users,

Professor Clayton M. Christensen from

Business School believes professional

learning from prior interactions and

the

the

clients are expecting more from firms,

being presented with new information.

concept of disruptive innovation was

with legal services only being part of the

explained as "innovations that transform

solutions demanded. According to Prats,

It now looks set to take on the legal field

products

and

graduates with combined degrees or

according to the winners of the 2013 IBM

expensive into things that are affordable

those with additional legal training, will

Watson Academic Case Competition at

and accessible."

be exactly what law firms are looking for

the University of Southern California. The

could offer no insight on the application

in the future.

USC team saw a niche for Watson in

of his theory to the legal industry,

says

corporate legal departments for building

Rhodin certainly could. Rhodin’s Watson

interview for jobs, ask firms how they’re

or defending a case. These processes

induced utopia answered the question,

planning to adapt. If they don’t have a

rely

accurate

"What if every lawyer worked at the same

good answer, you should be worried.”

research. Considering one has to go

level of best practices? [T]echnology

through past trials, court documents,

could capture those best practices

heavily

on

fast

and

Anything said in latin, sounds profound.

Harvard

Business

that

are

School,

complicated

Although Christens

percentage

Professor

of

the

overall

“Keep your eyes open,” Wikins.

“When

you

The Possibilities of Lee: Opening the doors for a future ‘loss of chance’ in the South African law of delict

By Stefanie Busch Enter Mr Lee. Mr Lee, the applicant, is

so as most of such claims involve the

Lee: Loss of chance doctrine adopted in

arrested and detained. Mr Lee contracts

tracing of hypothetical cases where it is

South African law?

tuberculosis while in prison. Mr Lee

principally impossible to establish a

then sues the Minister of Correctional

causal

the

At the surface level, there is no reported

services (the respondent) for delictual

damaging event and a finally suffered

South African judgment on the subject

damages

of

injury or loss due to an evidentiary gap

of a loss of a chance per se. However, it

contracting tuberculosis (TB) whilst in

or if the lost chance had a less than

can be argued that the recent judgment

detention. The applicant, argued that

even

suffered,

as

a

result

connection

probability

of

between

occurring.

The

of Lee, handed down by the South

the prison authorities had wrongfully

extreme

an

African Constitutional Court, has, by

and negligently caused his contraction

outcome - whereby the victim, who has

implication, allowed for the introduction

of TB due to their failure to take

experienced an increased risk of injury,

of a loss of a chance rule similar to that

which the court in Lee upheld.

These facts illustrate that Lee is essentially a case dealing with a loss of a chance. In this case note set

by

the

Lee v Minister of Correctional Services Constitutional

Court

such

such a loss of chance rule has allowed for the correction of unfair results stemming from the stringent application of the but-for test.

him from the disease- a claim

precedent

of

of English law due to the court’s

adequate precautions to protect

the

disadvantage

in

affirmation of the flexibility of the but-for test The facts of the case essentially mirror those of a case dealing with a lost chance: “If, before proper measures were in place, a prisoner had a 90% chance of contracting TB, but improper measures reduced this to 85%, the fact that the prisoner

2013 (2) BCLR 129 (CC) (hereinafter ‘Lee’) will be evaluated to demonstrate that a loss of a chance rule, similar to that of English law, has, by implication, been introduced into South African law.

receives no award of compensation

was negligently exposed to an increased

whilst the wrongdoer walks away scot-

risk would itself render the defendant

free – has been a matter of concern

liable.”

within the legal fraternity. Consequently, this has lead to the development and

This above quote illustrates perfectly how

adoption of different types of rules in

the court in Lee actually dealt with a lost

order to deal with the ascertainment of

chance scenario and has thus, by ruling in

A loss of chance enquiry is applicable

cause-in-fact given unknown alternative

favour of the applicant, allowed for the

where the defendant has created a risk

causes – which have been termed ‘loss

idea of a lost chance as a delictual claim to

- consequently causing the loss of a

of chance’ rules. Subsequently, English

be introduced into South African law, even

chance of this risk not occurring - or has

courts have gone on to allow for

if it had not stated so expressly. This is so

failed to protect the plaintiff from a risk,

compensation of a lost chance in terms

because the court is in effect - by speaking

and should therefore be held liable for

of risk-creating conduct by means of

of an increased risk of five per cent - also

his or her risk creating-conduct. Over

relaxing the but-for test and applying

speaking of a loss of a 5 per cent chance

the

has

alternative tests for factual causation.

of not contracting the disease, thus

the

Therefore,

illustrating the fact that a chance is merely

The concept of loss of a chance :

past

occurred

decades, mainly

in

contention terms

of

harm

was

held

to

be

problems such a claim poses in terms of

recoverable even though evidence was

the but-for test for factual causation,

limited, as long as the chance was not

which

unduly speculative. Hence, such a loss

evaluates

consequence

would

whether have

the

occurred

of chance rule has allowed for the

were it not for the accused’s unlawful

correction of unfair results stemming

conduct. It is in terms of this test, which

from the stringent application of the

has also been endorsed by South

but-for test.

African courts, that the claim for a lost chance mostly cannot be proven. This is

Quid quid latine dictum sit, altum sonatur.

the flipside of a risk.

Yet, the Lee judgment also has its downsides –by choosing to deal with the facts of the case in terms of increase of a risk (instead of the loss of a chance) the Constitutional Court has essentially

hindered

the

explicit

assertion that South African law has

right direction as it has the effect of

expressly accepted and developed to be

allowed for a claim for a loss of a

introducing into South African law the

an actionable delictual claim in South

chance. However, the Lee judgment,

jurisprudence accompanying the claim

African law.

with its relaxation of the but for

for a loss of a chance. Nonetheless, the

causation test, is a sign that South

state of the law will only be satisfactory

African delictual law is heading in the

when a loss of a chance rule has been

Four Years None the Richer: The Fate of the Four Year LLB

By Jamie-Leigh Brandes As

we

all

trudged

students to become better equipped to

LLB was initially introduced as a four-year

through our respective

deal with the level required of them after

program with the intention of broadening

LLB streams, working

they complete their studies. Law firms are

study

hard,

looking

motivated

at

for

self-aware

for

previously-

mature

disadvantaged students, by reducing the

times only by the promise of glory at the

students who are able to deal with clients

cost of studying from five years down to

end of it, the newspaper headlines in April

and their needs; a repertoire of skills

four. The impact of the change would

gave us an abrupt awakening: “Scrap the

apparently

mean that those students are required to

four year LLB�. Awkward. Having initially

graduates.

lacking

in

and

opportunities

four-year

LLB

finance a longer study term. There were

done a BA, I was discouraged after

various

comments

by

student

repeatedly being informed of my dismal

Secondly, they justified the move by

organisations

career prospects. Like many before me, I

examining

A

organisations condemning the change as

turned to the LLB to guide myself down a

whopping 70% of enrolled students in the

it would possibly result in a high level of

successful career path. In light of that

four-year LLB at Wits failed to graduate

exclusion of previously disadvantaged

decision, the news left me feeling slightly

within the allotted time. The postgraduate

prospective students who quite simply,

uneasy about my job prospects and

degree is better designed for candidates

cannot afford the longer degree or the

questioning the future of the LLB.

who are used to being students, and who

higher requirements for entrance into

have handled the pressure successfully

postgraduate level. Another issue that

before.

arose was the literacy and numeracy level

In April, Wits University announced it

the

completion

rate.

would be discontinuing its four-year,

and

black-empowerment

of many students admitted to the four-

undergraduate LLB program, replacing it

In support of this move, retired judge and

with a postgraduate LLB program; this

President of the Pretoria High Court,

would take an additional two years to

Bernand Ngoepe, made headlines when

complete for candidates who, for example,

he called on all South African universities

had previously completed their BA or

to follow suit and scrap the four-year

BCom degrees. They advanced a few

stream. The predecessor of the current

reasons for this dramatic change. First,

LLB, the BProc, was praised by Ngoepe as

there is a general belief among the legal

being more practical than the current

There were interesting reactions to this

profession that that the four-year LLB

theory-oriented LLB and he called for its

proposed change, with most universities

degree simply does not prepare graduates

reinstatement in place of the four-year

merely sticking to their guns.

for the legal profession.

LLB.

The leap from studying to practice is

As expected with such a bold move by

acknowledged the change as a better

proving

legal

Wits and a call for change, various

mode of equipping students for the legal

professionals are witnessing graduates

responses were elicited from universities

profession, but defended the four-year

struggling to adjust.

and the legal profession.

LLB as being cheaper and easier for

The postgraduate program is allegedly

One major point of argument was the

designed to create more opportunities for

social impact of changing the degree.The

year LLB. Law Society of South Africa CEO Nic Swart, stated that often students are simply not equipped to finish the LLB in the allotted four-year time frame and end up taking longer to complete the degree in any case.

The law faculty of the University of Pretoria too

great,

and

many

Anything said in latin, sounds profound.

students

who

are

previously

disadvantaged. They also boasted of their

growing LLM intake as students seek to

are required to complete the National

probably really don’t want to do in the first

better broaden their knowledge.

Benchmark tests (NBTs); containing both

place, it seems more logical perhaps to

literacy

elements.

change the curricula. Given the current

The University of Johannesburg law faculty

Applicants are only admitted for the

complaints from the legal professionals

simply

stated

that

they

encouraged

and

numeracy

traditional stream if their NBT results

relating to the graduates that have done

students to enrol in an undergraduate

indicate

of

the four year LLB stream, incorporating

program before considering the LLB to

success’. UCT has stated on the matter,

compulsory legal practice and an increase

better equip them for the legal profession.

that their programs accommodate all

in moot opportunities may better prepare

prospective students from all backgrounds

graduates in terms of dealing with the

as there are various ways in which one

demands of practice. As it currently

could successfully complete their degree.

stands, UCT does require all students to

Added to the careful admissions policy,

partake in a compulsory moot court, as

UCT also requires its LLB students to

well as to complete 60 hours of legal

complete

community service. These requirements

Rhodes University, like the University of Cape Town, offers their LLB program in different streams—with students opting for the four year degree, or a two or three year postgraduate degree. For Rhodes, this system was defended for allowing students the time to decide whether the

a

‘reasonable

60

hours

prospect

of

compulsory

community service.

undoubtedly do go some way in preparing the graduates for legal practice.

legal profession was really where they

At present, Wits is the only university to

wanted to work.

heed the call for change of the four-year

When thrown into the deep end, UCT’s

LLB degree. If one wades through all the

graduates are notorious for being very

arguments of social injustice and of ill-

buoyant students who learn how to swim

equipped graduates, it’s easy to see where

and attack very quickly in the shark-

the

UCT has various streams of the LLB program: a combined LLB where students commence the LLB in the second year of their undergraduate degree (roughly five years

of

studying),

a

three

year

postgraduate degree, and the traditional four year degree. Entrance is decided on various factors such as matric results and previous disadvantage, and all applicants

started:

infested waters of the legal profession.

graduates of the four-year LLB simply

epicentre

of

the

issue

Whether the four-year LLB prepares us

aren’t practically ready for the legal

enough, however, is likely to be a lingering

profession. Instead of overhauling the LLB

debate.

and making prospective law students study

undergraduate

degrees

they

HUMANS OF KRAMER We asked the Humans of Kramer which LLB stream they think is best, and why.

Here are just a few of their responses: Munyaradzi Dauya

Christlynne Limberg:

I would go with the straight LLB,

I think that each stream has its

because I think doing 3 courses a year

advantages and disadvantages

is better than doing 6. However, at the

and it is difficult to say which one

same time, it must be stressful for

is the best route to take.

those who do the LLB because they are coming straight out of high school and it is quite a jump.

Nondu Phenyane:

Ngcebo Mabizela:

Combined stream, because then you

I think the four year LLB because

have a year of university prior to

your law courses are spread out

starting your law courses in which you

and you get time to perfect your

can acclimatise to the difference

method of studying prior to

between high school and university.

starting intermediate year.

Quid quid latine dictum sit, altum sonatur.

What’s that in the sky?

The Use of Domestic Drones

By Ana Katts Issues relating to the use

considerations which arise whenever

unmanned aircraft are doing so illegally”.

of drones infamously flew

conversations about drones crop up. In

No exceptions to the statement were

into South African

South Africa, there have been conflicting

made. From the statement it is evident

headlines when freelance

reports about the legality of flying drones.

that SACAA is clear on the point that

It would seem that the status of both

anyone operating a drone between now

filmmaker FC Hamman was arrested in July last year for flying his drone over the hospital where Nelson Mandela was being treated. As it was then, the legality of the use of drones in South Africa remains uncertain. Today the idea of the drone is less revolutionary and significantly more sophisticated than it was at their inception. The concept of drones, officially known as unmanned aerial vehicles (UAV’s), dates back to the mid-1800s when the Austrian’s used

and March 2015, will be

The simplicity of the drone makes it a dangerous de)ice should it be used for unethical ends. The ultimate challenge is regulation of the use of drones balancing issues of human freedoms, state security, pri)acy, and liability law.

question which arises, however, is whether it is possible for the spokesperson of an organisation to create law through proclamation. The key question relates to how we, as legal-minds reconcile this with the age-old maxim ‘no crime without law’? The

unmanned bomb-filled balloons as a means of attacking the Venetians.

breaking the law. The

recreational and non-recreational drone

legislature will have to step in and

use remains uncertain, notwithstanding

regulate the use of drones and provide

Drones are essentially aircrafts which are

official commentary stressing that at

some much-needed clarity.

able to fly autonomously using external

present it is illegal to fly any autonomous

referencing similar to Global Positioning

aircraft in South Africa. A statement made

Globally, the use of drones has attracted

Systems. Drone users are able to control

in April this year by Phindiwe Gwebu

attention from a variety of sectors: from

their devices by using live video downlinks

spokesperson for the South African Civil

hobbyists, to filmmakers, to creative and

to monitor the locations and operations

Aviation Authority (SACAA), left the media

modern farmers using the devices to

of their devices. These fascinating devices

in frenzy, reporting that the use of drones

survey their boundaries. However, while

should be distinguished from the more

had been banned. However, this cannot

serving practical purposes, these devices

commonly used model aeroplanes which

legally be the case as, according to

also cast a sinister shadow. The simplicity

are manually controlled using remote

SACAA, drone flying has never been

of the drone makes it a dangerous device

controls. These “eyes” in the sky have

explicitly allowed or outlawed in the

should it be used for unethical ends. The

inevitably caused global controversy with

country. There is actually no law

ultimate challenge is regulation of the use

regards to a host of concerns, most

specifically governing the use of drones in

of drones balancing issues of human

notably safety and privacy issues; the

the country thus leaving a lacuna in our

freedoms, state security, privacy, and

consideration of the current drone

law regarding unmanned aerial vehicles.

liability law. It seems then, that as it

situation in South Africa has proved no

This is understandable considering that it

stands we shaill have simply to attach the

different.

is a fairly contemporary problem, which

good old Go-Pro to a kite and be content

has only recently begun to be seriously

with that – or will we?

In the USA, the Obama administration has banned the use of all commercial

contemplated.

drones. Despite this blanket ban the

In the statement it was noted that,

Federal Aviation Administration may

“SACAA has not given any concession or

consider giving the green light to certain

approval to any organization, individual,

companies, “who can demonstrate that it

institution or government entity to

will not pose a safety risk and would serve

operate UAS’s within the civil aviation

the public interest”. These are the key

airspace. Those that are flying any type of

Anything said in latin, sounds profound.

Consent in the Year 3000: The Robots Strike Back

By Eshed Cohen The

This is what distinguishes an AI from a

needed a chair’s consent in order to sit

futurist

blow-up doll; they can refuse to do

on it. Would you care what the talking

Ray

something, including sexual intercourse,

chair thought? Similarly, a robot may

Kurzweil

and thus can be raped.

refuse to have sexual intercourse with

famously predicted that in 2045 artificial

you, but this refusal is nothing but an

human

However, what is the point of a robot if it

output from a program. It is not based on

comprehension.

can refuse to do our bidding? Surely

organic

Machines will be smarter and better than

robots

do

robot’s program has simply deduced that

humans in ways which we cannot fathom.

whatever purpose for which they were

sleeping with you is not ideal (for

The human mind will be nothing but a

designed? The answer to this really

whatever reason). Therefore, consent is

program, uploaded onto a hard drive and

depends on what kind of sci-fi you read.

not all we care about. What we care

downloaded onto almost anything—but

However, even if we granted that AIs are

about is human consent, grounded in

especially androids. Society could be filled

programmed to do a certain job, it is still

human preferences and feelings, and a

with robots, which (or, ‘who’) fill various

possible that they can consent to sexual

robot cannot possibly supply us with that.

social roles, from practicing medicine to

intercourse specifically. Perhaps an apt

driving taxis. Some AIs may only exist as

analogy can be drawn to humans. Many

But sometimes we do consider non-

software (like, most recently, Scarlet

of us cannot totally decide what we want

human consent, like animals’. By no

Johansen in Her); others may exist in

to do with our lives—it is dictated by our

means

humanlike bodies (like Ash in Ridley

surroundings—but we can still decide

consent, but we imagine that animals

intelligence

(AI)

understanding

Alien).

Scott’s

will

surpass

and

These

will

be

programmed

to

almost every respect: they could look, think, act and sound like any normal human being. The only difference is that they are mechanical not organic, manufactured instead of conceived.

Given that singularity will occur, and

Yet we could question why the robot’s consent matters at all. Imagine that you needed a chair’s consent in order to sit on it. Would you care what the talking chair thought?

given that for a substantial period of time human beings will live alongside such androids, would it be legal to force a robot

to

fulfil

our

sexual

what we can do with our bodies.

Pursuing this train of thought—as odd as

be sexually harassed. The interesting

it may seem—may reveal something

question is whether or not this would be

interesting about the way we understand

legal. Rape or sexual violence is often

concepts of consent, dignity and human

outlawed based on its lack of mutual

equality.

consent (Criminal Law (Sexual Offences

could refuse to have sex. As outlined above,

the

robots

in

question

are

identical—if not superior—in thinking to

articulate

their

like dog fighting or bestiality, and so we prohibit such behaviour.

Thus not only do we care about non-human consent, but it also seems arbitrary to place human preference over those of animals and robots. What is it that makes human consent better than all

The response to this is twofold. First,

Let us therefore assume that a robot can

an android hinges on whether a robot

animals

other types?

desires?

The morality of whether we could ‘rape’

do

or attractions—the

would not consent to many things,

humanlike

androids could be similar to us in

emotions

and Related Matters) Amendment Act 32 of

2007).

The

answer

is

therefore

seemingly straightforward: if a robot did not consent to sexual intercourse, it has been raped.

human beings. Therefore, AIs would be

Yet we could question why the robot’s

able to consent or withhold consent from

consent matters at all. Imagine that you

any given activity—just like most humans.

AnQyuthidinqgusid aid fousonnda. tur. latin inleatdin ic,tsuomunsidt,sapltruom

animals can be distinguished from robots because they feel pain. Dog fighting is cruel because of the pain it inflicts on the animals, and that expected pain is why we would think that a dog would not consent to fighting; robots may not necessarily have

pain receptors

(it’s

unclear as to why they would, considering that invincibility from pain would be a great advantage). Secondly, relegating robotic consent below our own could ensure the survival of our race. If we treated robots as equal, what happens

if—as in many a sci-fi plot—robots decide

Perhaps then, given that androids have

to be done in assessing the inherent

that (being intellectually inferior) humans

emotions, sexually harassing them should

nature of the instigation, in this case

hold back technological development?

be illegal. It may be true that the roots of

robot-rape.

our consent are different in nature, an above

organic vs. a silicon existence; but it is

Exploring sci-fi scenarios such as this can

responses are problematic. It may be true

unclear why the significance of emotional

often be weird and seemingly abstract.

that, initially, AIs will be nothing but

harm and even joy should be affected

However, some of these ideas can be

programs, void of emotion and pain. But

because of this. However, it may be

incredibly helpful in fully extrapolating

as Philip K. Dick postulates in Do

slightly more difficult to account for

our convictions. The idea of AI is of

Androids Dream of Robotic Sheep? it’s

unconsensual ‘technosexuality’ insofar as

particular interest to us not only as law

very likely that eventually emotions such

androids don’t dream of robotic romance.

students but also as thinking individuals;

as affection, empathy and regret will be

The android may disagree, but the forced

we should often attempt to translate our

incorporated into AIs. Furthermore, it is

action does not seem to cause any kind

opinions about human dignity, justice and

unclear why robots will be so hard

of harm. Of course we could make a

equality

pressed to dispose of humans to the

Nonetheless,

both

of

the

to

something to

us,

is

so

slippery slope argument—raping robots

incredibly

extent that we should treat them as

may lead to raping people—but like all

simultaneously inherently different. Doing

second class beings (doing this may in

arguments of this kind it focuses more on

so, I believe, can often refine our

fact give them reason to ‘terminate’ us).

attacking consequences, and leaves work

opinions.

Anything said in latin, sounds profound.

similar

which

but

Big YouTube

And the Exclusion of Independent Artists

By Ruva

YouTube representative as part of a

Samkange

radio and Spotify that stream music for a subscription. Their entrance into the market is with a site rumoured to be called ‘Music Pass’ and will give Google/YouTube an advantage in the audio space. For a fee, YouTube subscribers will avoid adverts

Indie /’Indi/

and be able to stream music from the site.

Adjective—(of a pop group, record label, or film company) not belonging or affiliated to a major record or film

Benign as this seems, this works to the detriment of independent artists who have been threatened with their music

company.

being blocked from the site unless their

Noun—a small independent pop group,

negotiable contracts. The artists are faced

record label, or film company.

record

labels

Imagine a world where a ‘thrift shop’ meant nothing to you but old clothes on sale. A world where Justin Beiber is just a helmet-haired kid from Canada. ‘Call me, is

incitement

for

reckless

behaviour and ‘Gangnam Style’ makes no sense at all. Therein is the impact of Youtube: it is not just a way to waste countless hours procrastinating, it is also a way to connect. “Only connect”, as E.M Forster famously said. We have made countless discoveries of unsigned artists from every possible corner of the world on Youtube and maintained audio-visual relationships

with

YouTube’s

non-

with two options: either sign up or get off YouTube

maybe’

sign

established

acts

through it. Yet, there seems to be a storm brewing that threatens this relationship.

Independent artists are bearing the brunt of Youtube’s desire to enter the music

and

have

more

and

the

Google-owned

video

this content is blocked if Youtube does not get its way artists, themselves, will lose significant revenue.

first time indie artists have demanded fair

adopting

a

negotiation in licensing deals.

YouTube

has

Currently, independent artists do not have much bargaining power against YouTube.

Big record labels and YouTube will be able to negotiate terms on relatively equal footing, which would leave independent artists forced to accept contracts they have very little power over. Independent artists are being strong armed into succumbing to lower rates for YouTube to stream their music and are faced with contract terms that will be greatly inferior to the contracts large labels will be able to negotiate with YouTube. The site has

who do not agree with the terms of the contracts YouTube is forcing them to accept.

artists, has filed a complaint with the

with the sites such as iTunes

covers, lyric videos as well as adverts. If

for indie artists to be truly independent. By

YouTube is one of the biggest platforms

YouTube’s owner, has a desire to compete

comes mainly from when fans make

and unjust. This template makes it difficult

Worldwide Independent Network, which is

for expand their business. Google, as

million US dollars from YouTube. This

regulate artists heavily and this is not the

behemoth.

for music and videos and they are ready

Korean pop-act Psy have earned over two

by YouTube. This move by YouTube will

their new venture are independent artists

acts

relationship however. Artists like the

contracts whose terms seem to be unfair

major labels and the final roadblock to

unequal bargaining powers between small

for YouTube. It is mutually beneficial

has created non-negotiable template

Adele,

Youtube. It’s a good example of the

do generate significant views and revenue

proper valuation of their intellectual rights

Vampire Weekend and Artic Monkeys could find themselves excluded from

happen to these independent artists that

Independent artists are trying to see a

independent

as

get its way then it is unclear what will

From a contractual perspective YouTube

already signed new licensing deals with all

such

founded – however if Youtube does not

exposure.

streaming world. In the last few weeks artists

negotiation process and not completely

a global coalition of independent label European

Commission

to

prevent

YouTube from using negotiating contracts that they claim are unfair and lopsided. A rumoured threat by YouTube to remove

Quid quid latine dictum sit, altum sonatur.

independent artists from the site has been described by a

one-size-fits-all essentially

contract, cornered

independent artists – forcing them to be privy to a contract who terms they do not truly agree with. In a South African context questions of good faith versus pacta sunt

servanda arise. Pacta sunt servanda is a doctrine

underlying

contract

which

basically states that you are bound to what you signed on to. Whereas good faith, especially

given

the

Constitutional

dispensation, has been an instrument used to try and loosen the grip of pacta

sunt servanda on the law of contract. It is still unclear how this legal battle will end: whether

independent artists will be

excluded from Youtube and lead to the danger of big labels saturating the industry. Hopefully a compromise will be reached

where

more

contracts may be drafted.

individualised

The US Patent Debate:

Looking at the Future of Intellectual Property

By Tumi Malatji

“The States Parties to the present covenant recognize the right of everyone:

Obama emphasised the importance of

challenge the trade agreements relying

innovation on an economy.

on the ‘the right of Access to information’ in section of the Constitution. They are

1.

To take part in cultural life; To enjoy the benefits of scientific progress and its applications';

2.

3.

In his domestic agenda Obama has

firstly

proposed to increase federal funding for

oppose the acts of Congress like the

entrepreneurs and small businesses and

‘trade promotion authority’ known as Fast

to draft a patent reform bill that would

Track.

calling

for

transparency.

They

To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

keep inventors out of court by curbing

holders, patent protection and heavier

matter

(Part 3) Article 15 (1)(1) of the United Nations International Convention on Economic, Social and Cultural Rights

criminal sanctions for disclosing trade

Republicans are for it while Democrats

secrets. In his foreign agenda Obama

are against it.

The

United

Nations

recognises that streaming movies on internet sites, buying textbooks in print or online as well as buying the generic branded

instead

of

medication

is

part of the daily lives of our generation. Whether we will continue to enjoy

these resources, due to changes in Intellectual Property (IP) policy, is a big issue globally. At present this is a hot topic being debated on in the United States of America.

Dictionary in a broad sense is a grant by the government to protect the intellectual property of an inventor by putting a patent on his invention. The inventor is given the power to regulate the sharing of which

the Constitution to advice and consent

strengthen

trade agreements to the president. The

the

rights

of

trademark

include

most

importantly the right to buy and or sell the item and the right to disclose the patent. Patent assentation entities (aptly named patent trolls) have been recently introduced to charge inventors to guard the patent on their inventions. In his State of the Union address President Barak

is

still

being

debated

as

directed the currently negotiated free Secondly,

trade

agreements

they

challenge

Obama’s reform bill that favour owners’ rights over users’ rights.

The

heavy

copy-right

enforcement, strengthening the rights of trademark holders, patent protection and heavier criminal sanctions for disclosing trade secrets benefit patent holders. patent

The trolls

mitigation was

of

welcomed

though long over-due.

Trans-Pacific

Civic society organisations may not be

Partnership (TPP) and Transatlantic Trade

winning in Congress but in 2011 a

Investment Partnership (TIPP) to small

company pushed back against a suit from

businesses and entrepreneurs.

notorious patent troll, Perfect 10, in the

The trade agreements rely on WIPO

A ‘patent’ defined by Bouvier’s Legal

patent

Congress proposes to confer its rights in

includes heavy copy-right enforcement,

The United Nations recognises that streaming mo)ies on internet sites, buying textbooks in print or online as well as buying the generic instead of branded medication is part of the daily li)es of our generation.

the privileges of access to

the

the practices of patent trolls. The bill

which is based on the WTOs TRIPS agreement

which

states

that

when

limiting users’ rights contracting parties must use the Berne 3 step test. The first step is that exceptions can only be applied to ‘certain special cases’. The second that it does not ‘conflict with a normal exploitation of work’. The third is that the limit does not ‘unreasonably prejudice the legitimate interests of the author’. The test is very broad and can be interpreted in a manner which onerously limits the rights of the users in order to protect the exclusive rights of copyright owners. Civic society organisations have

Anything said in latin, sounds profound.

taken

to

Congress

to

Supreme Court. The troll claimed that companies do not follow its DMCA process which results in infringement.

The court suggested that Perfect 10 did not

implement

the

DCMA

process

correctly and that went beyond its duty by

making

its

requests

of

patent

protection on sites impossible to comply with. Looking to precedent the court found that the troll was acting ultra vires.

In a more recent Supreme Court case Alice Corporation vs. CLS Bank the declaration of when a patent could be declared valid was brought before the

court. It held that mere ideas could not

tape

covering

every

The

TRIPS agreement states that IP laws ‘may

be patented, the idea had to become

industries affected by them include public

not offer benefits to local citizens which

something tangible. The court favoured

services,

studios,

are not available to citizens of other TRIPS

the rights of users’ over that of patent

commercial companies, pharmaceutical

signatories’; what effect will a change in IP

owners by narrowly interpreting what can

companies, government policies and etc.

policy and the patent debate have on

be patented and in turn mitigated the

South Africa (who joined the WTO in 1995

countries like South Africa?

perimeter of patent trolls. We don’t notice

and signed the WIPO treaty in 1997) is

patents because they are like invisible red

not a signatory to the TPP though the

the

product.

Hollywood

Students for Law and Social Justice: A National Campaign for Community Service

By Max Taylor (on behalf of the SLSJ) South

new and its transformative potential has

clearly agree with Chaskalson that the

Africa has an acclaimed Constitution and a

been widely recognised. Ex-Chief Justice

implementation of such a programme is

sophisticated legal system, but this means

Arthur

ardent

necessary. Chaskalson, speaking at a Law

little to the multitude of South Africans

proponent of it and in 1998 a National

Society of the Transvaal meeting in 1997,

who lack access to lawyers or legal

Legal Aid Forum was convened by the

also emphasised that the programme

institutions

unable to

Minister of Justice, where a working

would ‘solve the ongoing problem of

ascertain – let alone enforce – their legal

commission investigated and debated in

graduates who are unable to enter the

rights. Material inequality and a dearth of

some detail the logistics of how such a

profession because they are unable to

lawyers and infrastructure in rural areas

programme might work. The political will

find articles’.

remain the chief drivers of this problem.

for such a scheme still seems to exist.

Professor Steve Reid of the medical

In spite of the vital work carried out by

Section 29(1) of the Legal Practice Bill,

profession offered his insights regarding

Legal Aid SA, public interest law centres

which is awaiting the President’s signature,

compulsory community service in the

and other organisations, access to justice

provides that the Minister must, after

medical

remains tragically elusive for far too many,

consultation with the Council, prescribe

resistance to the idea upon its proposal,

especially in relation to

requirements

the

and

who

are

non-criminal

Chaskalson

for

was

an

community

service,

At SLSJ’s panel discussion,

context.

In

spite

programme

was

of

initial

ultimately

matters.

which may include ‘community service as

implemented and now provides invaluable

In 2010 Students for Law and Social

a

vocational

health services to the poor. Prof Reid has

Justice (SLSJ) undertook to campaign for a

training by candidate legal practitioners’. It

conducted surveys of trainee-doctors who

year’s compulsory community service for

is therefore an appropriate time to debate

have gone through the programme and it

all law graduates seeking admission to the

how

was encouraging to hear that many

profession.

optimally implemented.

involve

Community

anything

from

service carrying

might

component

such

a

of

practical

programme

could

be

medical students, who said they had

out

dreaded their community service year,

supervised legal work for Legal Aid (which

In April 2014, UCT SLSJ hosted a panel

ultimately found it the most rewarding

is perennially understaffed) or working for

discussion on this issue, in which High

part of their training.

the courts or other overburdened state

Court

LRC

Although section 9(1) of the Constitution

legal institutions. Such a programme, if

attorney Sheldon Magardie and Rampela

states that ‘[e]veryone is equal before the

implemented wisely, would have the

Mokoena, Director of the Cape Law

law and has the right to equal protection

Judge

Leonard

Bozalek,

potential to significantly improve access to

Society, all broadly supported the idea of a

and benefit of the law’, these words will

justice in South Africa. It would also

community service programme. It was

continue to ring hollow unless we can

provide

valuable

widely acknowledged by the panellists and

significantly enhance access to justice in

practical experience and expose them to

members of the audience that graduates

South

experiences of South Africa’s legal system

would need to be remunerated and

introduction

which they are unlikely to encounter in a

adequately

community

corporate firm.

desperate shortage of legal services for

graduates would be a vital step in that

the poor, and the variety of socially-useful

direction.

The

law

idea

of

graduates

with

compulsory

trained.

But

given

the

community

ways in which graduates’ legal skills could

service for law graduates is by no means

be put to use, many in the profession

Quid quid latine dictum sit, altum sonatur.

Africa.

In of

service

SLSJ’s a

view,

the

comprehensive programme

for

ENSafrica WRITES FOR US Ubuntu and the Law:

Promoting Good Faith and Fairness in Contracts The Constitutional Court, the highest

Ubuntu is not expressly stated as a

point.

Court in South Africa, which has now

constitutional value in the Constitution, it

interpretation of s 27(1) of the Alienation

been given wider jurisdiction to hear

was

of Land Act 69 of 1981 (“the Act”), which

matters of public importance has, due to

Constitution.

also

provides that if a person has paid 50% or

an amendment to the Constitution of the

continually stated over the years that it is

more of the purchase price of property

Republic of South Africa, recently handed

a constitutional value and that it assists in

which is subject to an instalment sale

down a judgment which is expected to

giving content to the three express

agreement,

have a significant impact on the principles

constitutional values of freedom, dignity

that the seller transfer the land into his /

of the law of contract in South African

and equality. equality

her name on condition that he / she

provided

for

The

in

the

Courts

Interim

have

law. In fact, the aim to uphold the

This

case

concerned

an

that person can demand

registers a mortgage bond in favour of

principles of Ubuntu and to promote

Determining fairness and good faith in

the seller over the said land. In this case,

good faith and fairness in contracts is

contracts: Barkhuizen v Napier:

the seller

increasingly judgments

becoming handed

a

down

trend by

in the

Constitutional Court.

In the case of Barkhuizen v Napier 2007 (5) 323 (CC), the Constitutional Court stated that two questions need to be

What is good faith in the law of contract?

asked in determining the fairness of a contractual term: term

phenomenon; it has always been part of

1.

South African common law. Good faith

unreasonable / contrary to public policy; policy

has been regarded as the doing of simple justice between personperson-andand-person. person It involves a respect for the other party’s interests in a contract. Because a contract

to

cancel

the

of the purchaser’s payments, because the purchaser

had

defaulted

on

her

payments. One would have expected the Court to order the cancellation of the contract, due to the purchaser’s default

The notion of good faith is not a new whether

purported

agreement and to enforce the forfeiture

the

clause

itself

is

but not forfeiture, which is unlawful, according to s 19 of the Act. Therefore, upon cancellation the purchaser would

2. if not, whether its enforcement enforcement in the particular

circumstances

would

be entitled to full restitution.

be

unreasonable / contrary to public policy. policy

However,

the

Constitutional

Court

approached the issue in a different

is an agreement between two or more

The Supreme Court of Appeal, in the case

manner. In an attempt to develop the

parties, and often involves the principle of

notion of good faith and fairness in

reciprocity, reciprocity parties should not enter into

Bredenkamp, reacted to the Barkhuizen judgment and held that there

an agreement in bad faith, as doing so

was no over-arching requirement of

enforcement of the cancellation clause to

would destroy the trust between parties

fairness

that

the fairness of doing so. One can see the

and create commercial chaos.

Barkhuizen was limited to constitutional

Court’s attempt to infuse constitutional

issues. The legal profession has been

norms and values into the general

eagerly awaiting a judgment in which the

principles of the law of contract. In fact, it

Constitutional Court may react to the

was stated in the Constitutional Court

However, good faith is not a standstand-alone requirement in a contract. contract This much was made clear in judgments handed down by the Supreme Court of Appeal and its predecessor,

the

Appellate

Division.

Nonetheless, the Constitutional Court has

of

in

contract.

It

held

Bredenkamp judgment.

Fairness

over

certainty:

Botha

and

another v Rich N.O.

of fairness. fairness The Constitutional Court has attempted

and

89/13 has given a further indication of the

understanding to the notions of good

Constitutional Court’s approach to this

faith and fairness through interpreting

issue of good faith and fairness in

and attempting to apply the concept and

contracts, but it did

constitutional value of ‘Ubuntu Ubuntu’.

Ubuntu

authoritatively express its stance on this

give

content

While

Anything said in latin, sounds profound.

Court

subjected

the

develop a new contractual order which is informed by constitutional and traditional African values. values

The very recent case of Botha and another v Rich N.O. and others 2014 CCT

to

the

case of Everfresh, that Courts need to

attempted to develop this notion of good faith and, on a related note, the concept

contract,

not

seem to

The Court here dealt with s 27(1) of the Act, and interpreted that the purchaser is entitled to demand transfer of the land into his / her / its name, provided that the purchaser

tenders

payment

of

arrears amount and, if applicable, any

the

a

the purchaser. The Court held that such

Consequently, although certainty is a

mortgage bond over the property in

enforcement of the cancellation clause

requirement of the law of contract, it may

favour of the seller. However, the seller

would

accordingly

be pushed aside in favour of upholding a

had exercised its right to cancel the

dismissed the cancellation application

standard of fairness in contract. Thus, the

contract due to the purchaser’s default

and ordered that the Respondents do all

enforcement of a cancellation clause may

and that the purchaser made no attempt

things necessary to effect transfer of the

be subject to a fairness enquiry by a

to pay the arrears as contemplated by s

property to the Applicant, provided that

Court. Parties must enter into contracts

27(1) of the Act. The Court, however,

payment of all arrears amounts are paid

in good faith and act fairly to one

considered whether the enforcement of a

to the Respondents and a mortgage bond

another. The Constitutional Court is

cancellation clause is fair under the

is registered over the property in favour

adamant to develop the law of contract in

circumstances, where the seller exercised

of the Respondents.

line with constitutional values and it will

municipal

charges

and

registers

be

unfair,

and

continue to do so. While the law is

its rights in terms of the contract to cancel such contract due to default by

It seems that the effect of this judgment

developing as such, this particular point

is that the exercise of a contractual right

of law will remain in a state of flux.

may be subject to a standard of fairness. fairness

For more information, please contact: Adriaan Hoeben director | litigation and dispute resolution | CPT +27 21 410 2744 ahoeben@ENSafrica.com Sue Hayes director | litigation and dispute resolution | JNB +27 11 269 7625 shayes@ENSafrica.com Maria Domingos director | litigation and dispute resolution | DBN +27 31 536 8609 mdomingos@ENSafrica.com

Quid quid latine dictum sit, altum sonatur.

IN LASS PRELIM YEAR

By Ansune van der Merwe

anything available on Upper Campus.

There was also never a dull moment in class with the diverse students and

INTERMEDIATE YEAR

By Savvas Christodoulou

A roller-coaster– that’s the only

it felt cool to have inside jokes with

My alarm clock has an especially

metaphor I can use to describe my

other Law students about Daisy the

reserved space on my desk: close

first year in Law School. And no, not

cow. I enjoyed the break from all the

enough to hit the ‘snooze button’ but

one of those in the theme park’s

seriousness in Kramer with the Africa

just out of reach for when the ‘id’ gets

kiddies section with pink unicorns

Week celebrations!

mad. On this particular morning I

and purple clouds. This roller-coaster was more like one of those giant snake-shaped ones with an ‘Enter At Own Risk’-sign that goes backwards, sideways, through dark tunnels and causes some whiplash.

Of course this ride had many downs too. Running up and down between two campuses is good for ones’ fitness, but it really isn’t fun when you’ve had a long day and heaven’s

took full advantage of the snooze option. Once, twice, five times since the initial 6:55 rising bell. I sit up and look toward the clock: What? 7:40 am. How?

floodgates have opened up. The year

Instantly, my duvet hits the floor and

The scariest part, like with any roller-

also has provided more than enough

I’m standing half dazed searching for

coaster, was the start: excited yet

moments of stress and anxiety.

the light switch. The light isn’t

(extremely) scared, you’re already

Moments of feeling like I got the hang

working, “could be the globe.” In

strapped to your seat and you have

of things were short-lived; I was

semi-darkness I rush to find the

nowhere to go. The only option you

constantly reminded of how much I

shower and in the process almost

have is to close your eyes tightly and

still need to learn

slip on a wet tile. The water is icy.

yell “Tally-ho!”

Through all the tears, laughs, twists

“The geyser too?” Splash splash, it’ll have to do. I check the electricity

Our first reading this year was a

and turns I don’t regret a single day in

chapter from Malcolm Gladwell’s

Law school. I won’t deny that I have

book Outliers. I remember reading

become a nerd. I have gained a new

Now what to wear? The hunt for

that if you put in 10 000 hours of

perspective on and appreciation for

clean clothes ensues taking longer

work, you can really achieve anything.

South Africa’s legal system. I always

than anticipated. Curse you, Kramer,

TEN THOUSAND hours? This was

knew practising law gives one the

for having the best-dressed-

going to be a very, very long ride…

opportunity to wear fancy shoes

shamelessly-classist students at UCT.

every day, but now I am looking

“I’m just a student!” Compromises are

The first year in Law School had fun,

forward to the opportunity to change

thrilling and exciting times. One

made, my shirt may or may not be on

South Africa. 10 000 hours? Bring it

the wrong way, but it’s ok, I won’t take

cannot help but be productive in the

on!

off my jacket. (Danger: Kramer air-

smaller, quieter library where the more serious student would

There is only one thing to say after

definitely give you ‘the evil eye’ if they

this wild ride: “Let’s do that again!”

meter: 0.00 units. “Oh.”

conditioning is temperamental). Run Run Run! Wait, coffee.

saw you checking Facebook.

My seatbelt is buckled and I’m off! Off

Lunchtime was definitely the highlight

to traffic that is. “Where did all these

of everyday: the Eco’s Building Cafeteria is definitely a step up from

Anything said in latin, sounds profound.

cars come from?” At Rhodes, five

them on your way somewhere, a

doing masters, others will be

minutes would get you to the lecture

slightly amused expression would

travelling. A good proportion have no

theatre and the only things to worry

cross their faces, as if the three years

clue what next year holds just yet.

about were numerous potholes and

they had on you would change

the odd stray donkey/cow. Cape

everything you thought you knew,

Town is far more complex: bumper-

and that one day you too would

to-bumper traffic where unruly taxis

“understand’. As a current final year I

hoot like they know you. Traffic gets

can finally explain what that

boring sometimes. [Must remember

expression meant:

to buy electricity]. Oh look, pretty

At this stage things get a little Oprahish as you start to think of the things you’ll miss most about the faculty.

The few that jump to mind immediately are quite surprising. The ladies in the cafeteria efficiently

To start, where the hell did all of you

feeding us all to the sweet sounds of

people come from? No offense or

“…onehotchips PLEASE!”; Professor

Finally, I reach UCT and there’s still

anything – I promise you’ll feel this

Fagan banning laptops in his class

parking, albeit far away. Handbrake

too - but the amount of students on

and prescribing a tome by way of

up, lights off. Suddenly my heart skips

campus you don’t recognise is

explanation; Daisy the cow and Nikki,

a beat and the day gets worse: a

incredible. Most of us didn’t

Faiza and Tiffany – making the world

squirrel stares ghoulishly from

recognise that many to begin with,

a better place.

behind a nearby bush, claws readied.

but this is becoming weird. Until now

#RabiesIsReal. Be brave? Nah, life is a

you never realised just how many

better option. I wait. Besides, at this

students this faculty churns out, or

point I give up. It’s too late.

how many times your lecturers have

mountains! BREAKS! Very close.

FINAL YEAR

By Dan Isaacson

‘done this before’. It’s also (if we’re sharing) just a little unnerving. You get the subtle feeling that what the faculty really enjoys is

I can clearly remember the

educating/petrifying these fresh and

impression I had of final years when I

impressionable newbies, while they

was just beginning law school. They

start to look at you like the older

seemed relaxed, quieter and more

sibling who should ‘probably be

dignified than us raucous first years,

getting along sometime soon then.’

as if they had this whole LL.B. thing waxed and were just waiting to get

In many ways it’s like your matric

out into the world. Before tests we

year. Your classes are mostly more

would be talking at the tops of our

relaxed. The days of lecturing you

voices, laughing and/or crying

about needing to up your game are

hysterically, while they seemed to

pretty much over. Most of your

stroll in, write their piece and stroll

classmates have already done so or,

out afterwards as if they’d done

if they haven’t, the ball’s very much in

something mildly interesting.

your court now. Also, like matric, most of us are thinking about what

I also remember the way they used to

the future holds. Some have

look at us first years. Walking past

“SIGNED”, some haven’t. Some will be

Quid quid latine dictum sit, altum sonatur.

That amused expression you see is probably all of these things rolled in to one. A little excitement, a little unease and a little nostalgia. On the other hand it could just be some serious concern over the cafeteria coffee we just had which, somehow, didn’t make the list of things we’ll miss…

ten OF THE LONGEST ASES IN History 10. Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (CC) – 291 pages.

Commonly known by the Bond-esque name, Certification II, this behemoth weighs in at an eye-watering 291 pages. It is known to be the biggest cause of dropout rates in the Prelim years where sections of it are prescribed reading. Considering that it is the case that established the legitimacy of the democratic South Africa maybe they were allowed to be a little long-winded?

9. Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (8) BCLR 872 (CC) – 445 pages. pages.

The judgment reads like a more convoluted and intricate story line between the judges than the script of Cloud Atlas but it marks the final hurdle a Law student must overcome before they can graduate: A fitting test of stamina and endurance.

8. Berezo Berezovsky vsky v Abramovich (Action 2007 Folio 942, UK Commercial Court, Chancery Div.) – 531 pages. pages A study of perverse wealth, this case involved the bitter Citizen Kane-like dispute between two warring Russian oligarchs. Dealing with claims in the billions of pounds the legal fees alone must be enough to purchase a medium-sized Asian country.

7. Widdrington (Estate of) c. Wightman, 2011 QCCS 1788 (CanLII) – 754 pages.

A Canadian case dealing with negligent misstatements, the longest case in Canadian history an expert witness was in the witness stand for over three years and cross-examined for over two years. Take that, Oscar.

6. McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) – 743 pages.

The facts of the case may have you throwing this magazine in the bin but its gross and torturous length will never let you forget it.

5. McDonald’s Corporation v Steel & Morris [1997] EWHC QB 366 – 800 pages.

Known as the McLibel case it is the longest case in English history spanning a decade in litigation. The David and Goliath story of two activists sued for libel by McDonalds, it should make you feel twice before you bite into your next set of 3am “Chicken” McNuggets.

4. SARFU and Others v President of the Republic of the RSA and Others 1998 (10) BCLR 1256 (T). – 1096 pages.

The biggest crime of this court was not its bloated judgment that crossed the 1000 page mark but the sheer gall of the judge to place our dearly beloved Madiba in a witness stand again.

3. The Prosecutor vs. Charles Ghankay Taylor - 2499 pages.

The ICC, Criminal Tribunals and Hybrid Courts are not known for their concise and clear judgments but if you are going to convict a despotic warlord you better do it properly. Over the course of over 2000 pages the Special Court for Sierra Leone puts an end to Taylor’s reign of terror.

And a smidgen of justice is done.

2. Bell Group v Westpac [2008] WASC 239 – 2614 pages.

This was a five-year long Australian corporate insolvency case where the judge ended the case by quoting Ovid in saying, “Iamque opus exegi,

Deo gratias. : And now I have finished the work, thanks be to God”.

1. Ayodyha dispute.

+8000 pages.

Printing this case should be a crime against humanity: it would wipe away any remaining trees left in the Amazon. A sixty year long court cases that deals with a small plot of land in a North Indian town the case became a central area of contention amidst the multi-religious Indian state.

This battle for a contested piece of land pitted Hindu factions on the one side and Muslims on the other and lead to an order of a 1/3 split between the three parties. 60 years of litigation in the courts to just be told to share? So much for supposed legal expertise.

Anything said in latin, sounds profound.

MEET THE TEAM Contributors of Articles: Alexandra Swanepoel Amy-Leigh Muir Matilda Nengare Mpho Rabeoane Stefanie Busch

Editor-In-Chief:

Deputy Editor:

Senior Editor:

Jamie-Leigh Brandes

Kevin Minofu

Steffi Busch

Jessica Mann

Savvas Christodoulou Eshed Cohen Tumi Malatji Ruva Samkange

ENSafrica frica:: From ENSa frica Adriaan Hoeben Sue Hayes Maria Domingos

Secretary-General:

See article for contact details.

Ebrahim Shaik

Senior Editor:

Head of Design:

Matilda Nengare

Jamie Brandes

Society Note:

Head- Sponorship& Treasury: Maeve MacGlinchey

Max Taylor—on behalf of the SLSJ

In Class Contributors: Savvas Christodoulou Daniel Isaacsson Ansune van der Merwe

Senior Editor & Photographer: Societies Editor:

Belinda Hlatshwayo Copy Editor:

Clifford Ncube Fiona Fehrsen

Quid quid latine dictum sit, altum sonatur.