Altum Sonatur Edition 1 - 2015

ALTUM SONATUR Around The Globe Volume 6, Issue 1

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CONTENTS 2 // On Mansion on Mars 3 // #JENESUISPASCHARLIE: The tightrope of free speech 5 // #SONA 6 // Parliamentary Chaos 7 // Israel-Palestine 101 8 // Is the death penalty dying?

9 // How high is South Africa’s wall of separation?

10 // Strange Fruit: Police Brutality 11 // What is the Islamic State?

13 // Ridiculous Laws around the globe 15 // Kim say, North Korea do: A Constitution untold 17 // Law on TV: Expectations vs Reality 18 // Which TV lawyer are you?

19 // What law school has taught me so far 21 // A Werksmans Perspective 24 // Humans of Kramer 25 // Rap Reparations: Twitter Wars 26 // Meet the Team

LETTER from the editor

Steffi Busch

A

fter undergoing the struggle of wearing glasses and contact lenses for more than a decade, I finally had my eyes lasered. And while the surgery itself was pretty traumatising, the worst was the recovery. While you, the Kramerian, complained about ‘all those readings’, I was hiding away from any hint of light. Needless to say, I had to hang around my apartment in the dark, wearing sunglasses.

Whilst I was hiding away in the shadows, I felt trapped, like a criminal, imprisoned. But that feeling of imprisonment got my mind to wander – surely, prison should not be described as a place filled with criminals? Convicted, yes.

Transgressors of the law, for sure. But criminals? What constitutes a crime in one country might be viewed as constitutionally protected conduct in another. Surely, just like beauty is in the eye of the beholder, what is considered to be a crime is in the control of the State?

Let’s take the criminalisation of speech as an example. In South Africa we have the privilege of having a free press, which acts as a fourth estate by being critical of the State’s actions. Some might even argue that our media is too free to criticise the State, by repeatedly exposing the dirty secrets of the government.

However, in other countries around the globe a similar free press climate is a far-fetched ideal. Speech, especially political in nature, is criminalised. Repressive media regimes are enforced by numerous countries. Digital censorship systems are put in place to control the content on web, as has been done in Chi-

na where key words deemed ‘anti-government’ are automatically censored.

Most commonly, statutes are promulgated which are used to jail journalists for having committed crimes of ‘treason’ or having ‘threatened’ the country’s stability by their reports. According to the Committee to Protect Journalists, 221 journalists were imprisoned in 2014. China is the world’s worst jailer of journalists in 2014.

Furthermore, hypocrisy reigns the day when it comes to issues of freedom of expression and the free press.

World leaders were very quick to lead a march in the name of freedom of expression after the Charlie Hebdo shooting despite the fact that some of the media laws enforced in their own countries are a far cry away from respecting the sanctity of the free press.

Nine of those countries represented in the march are in the final third of the World Press Freedom Index, such as Russia, Ukraine and Turkey.

Locally, the jamming of the signals during #SONA2015, as well as the strategic non-coverage of EFF members being dragged out of Parliament by the police, illustrates how in South Africa we are also not safe from the ever-increasing tendency of state censorship of the media by controlling the free flow of information.

This demonstrates the State’s attempt to create a less critical media, which is encouraged to focus on ‘nation-building stories’ and ‘positive news’

And whilst Altum Sonatur is just a lowly law magazine read by a few hundred, it still forms part of the fourth estate of the community that is our lil’ law campus. Critical thought and criticism of State action is a fundamental part of being a law student.

So go ahead, read this edition’s coverage of foreign law, whilst keeping in mind that critics are not, and should never be considered, criminals.

2015 ALTUM SONATUR 2

A MANSION ON MARS? H

Owning property in outer space is now possible for those wishing to invest in some extra-terrestrial real estate.

ave you ever left the law library late one night, during test week or when exams are looming, rubbing your dry tried eyes, and looking up at the night’s sky with the stars twinkling, the moon illuminating your way, and thought: ‘Damn, I would love to own some of that’?

Well, now you can! In fact since 1967 you’ve had the chance to make this wish come true. No more wishing on a star for you my dear reader, owning property in outer space is now possible for those wishing to invest in some extra-terrestrial real estate.

The Outer Space Treaty was drawn up by the United Nations in 1967, during the Cold War in which the Space Race was taking place between the then USSR and the USA. Article 2 of the Treaty states that ‘no nation by appropriation shall have sovereignty or control over any satellite bodies’. No reference was made to non-governmental organizations, private bodies or individuals, however. Realising this lacuna, the UN attempted to close the loophole through the passing of the Moon Treaty in 1979, which very few nations ratified, certainly none of the space going states.The Treaty has thus, in effect,been largely ignored.

However, US citizen and former used-car salesman, Dennis Hope, seized the opportunity the loophole presented with entrepreneurial gusto and filed claim to the UN for the Solar System in its entirety in 1980, subsequently earning millions by selling plots of land on Venus, Mars and the Moon via the internet. Tom Cruise, Tom Hanks and Clint Eastwood are said to be among his 6 million buyers. What did the UN have to say in reply to Hope’s claim? Nothing. And as for the states, namely Germany and Sweden who took Hope to court for fraud, they were thrown out of court for lack of jurisdiction. It seemed outer space was and is Hope’s oyster.

Those of us who have passed property law, or are attempting to do as much, will be able to point out a flaw with Hope’s claim to ownership of celestial bodies from a South African legal perspective. To legally own something one needs to prove two elements of ownership, animus (intention) and corpus (actual possession). Although, what satisfies actual possession of land in space will undoubtedly be debated, it has been suggested that simply

Sophie Robertson

landing a probe with the intention to claim ownership of the land beneath it may suffice. Whether the likes of Hanks and Cruise have managed to send probes to their plot of land is currently unknown, however if ownership of an acre of Mars is their (or your) utmost desire, then buying one of Hope’s acres in the meantime couldn’t hurt.

So, now that you’ve managed to purchase your acre for the mere price of $29.99 (R354), the next logical question would be: how do I get there in order to enjoy the fruits of my land?

Low on fuel and space shuttles?

Worried you may never get to plant your very own footprint on that acre of yours? Fear no more, the Mars One mission is sending chosen candidates on a one way ticket to Mars in attempt to establish a permanent human settlement on the red planet, branding it as ‘The Next Giant Leap for Mankind’. Now that you’ve got a peg of land and a form of transport, what are you waiting for my dear reader? To infinity and beyond!

CURRENT AFFAIRS

3 ALTUM SONATUR 2015

#JENESUISPASC THE TIGHTROPE OF FREE SPEECH

Prashanti Ramnanan

T

he recent massacre at the offices of Charlie Hebdo in Paris sparked a furore over the right of free speech and its place in a diverse world. Whilst the heinous attack was met with outrage, the subsequent flood of solidarity -characterised by the trending “#JESUISCHARLIE” or “I am Charlie”-raised questions about the tightrope of freedom of expression and the possible double-standards it presents; what it means for the provocateurs and for the provoked.

There is no doubt that the incident was a direct assault on a cornerstone of any democracy; the ability of a person to voice their opinion without fear of persecution. However in the tidal wave of solidarity for freedom of expression, support for free speech has been conflated with support for the actual speech in question. It was argued that satire should not cause offence because it is the weapon of the weak.

Although it is critical to expose or even ridicule those “higher up in the food chain”, the effect is vastly different when mocking an already marginalised portion of the community. To defend satire because it’s indiscriminate is to admit that it

discriminates against the defenceless. In a report by human rights group Amnesty International last year, France was criticised for rampant discrimination against Muslims for demonstrating their faith, especially in the fields of education and employment. In light of this, do we wish to endorse a message that used the guise of satire to inflame the widely-held Islamophobic preconceptions of the West?

It is thus necessary to draw the distinction between saying the President of the Republic is a randy satyr and accusing nameless Muslim immigrants of bestiality. What merely annoys the one may deepen the other’s systematic oppression. It is not too far-fetched to suggest that this culture of French journalism exposes a double standard. Whilst certain religions and ideologies can be mocked by some with impunity, others are smothered from expressions of their own.Most glaring was the prohibition of pro-Palestinian protests; the fact that Holocaust-deniers are imprisoned for over 5 years; and Muslim women not being allowed to wear burqas.

Following the attack, many publications called for a reprint of the cartoon, branding those who opposed the move as cowards or terrorist sympathizers. This is unfair. Every day, editors decline to

publish ethnic slurs and disgusting images that might offend a race or religion. This is not censorship: it is an editorial judgment which recognises that free speech offers latitude but not necessarily license. The castigation of those who did not wish to emulate Charlie illustrates that the very people who propound the value of free speech fail to understand that imposing what should be said is a direct contradiction of the right they supposedly uphold.

In South Africa, our Constitution enshrines the right of free speech in section 16 but simultaneously recognises that it could breed disastrous consequences if not limited.

Thus the protection afforded to one of the most fundamental principles of a prosperous democracy does not extend to advocacy of hatred based on race, ethnicity, gender or religion and an incitement to cause harm. As much as our society benefits from unfettered thinking, criticism and disagreement must be exercised in a constructive manner. So before we lift up our pens we should recognise the power of such a weapon, and use it in hand with tolerance and respect. In this I can emphatically say that I abhor the killings and mourn the dead. But I am not Charlie. #jenesuispacharlie

CHARLIE:

“So before we lift up our

pens, we should recognise the power of such a weapon, and use it in hand with tolerance and respect.”

CURRENT AFFAIRS

#sona T

hreat to National Security Live on Air! We need to face the truth before we engage with the legalities, if not illegalities, in the #SONA2015 debacle: what we witnessed on the February12th was a reflection of the actual state of our nation socially and politically.

For those of you who missed it, on February 12th 2015, the President gave (or attempted to give) the State of Nation Address. After several interjections from opposing parties (which isn’t allowed according to Parliamentary rules), the police forcibly removed EFF MP’s from Parliament and the DA left too in protest. To add insult to injury, all phone signals were jammed inside the building by a ‘jamming box’ which was quickly but ungracefully switched off. The people behind the SONA circus were Members of Parliament whom the citizens have entrusted with the leadership of the nation. This article will, however, concentrate on the legal issues that really touch at the heart of our Democracy; issues which every South African should be concerned about.

To begin with, the jamming of the cell phone signal was a direct violation of s 59 (1) (b) of the

Constitution, which states that the National Assembly must conduct its business in an open and public manner. Furthermore, it was a violation of s 16 (1) (b), the freedom to receive or impart information or ideas. Conscious and intentional disobedience of the Constitution constitutes an attack on the democracy of the nation.

When Parliament is seated, it has privileges under s 71 of the Constitution. These privileges in summary, grant immunity to the members of Parliament from arrest and criminal proceedings. Thus, the police had no right or duty to forcefully and violently remove members of parliament, who are doing their job as representatives of the people.

The fact that the police received orders from the Speaker is no justification either, after all, the police take their orders from the Executive. Furthermore, rule 14k of the Joint Rules of Parliament gives the Speaker the power to adjourn the meeting in the event of grave disorder, but it does not give her the power to employ the services of the executive to harass the MPs representing of their constituencies.

Section 199 (7) of the Constitution prohibits the Police Service from being partisan in performance of

Clifford Ncube

their functions. It prohibits them from prejudicing a political party in favour of another party. In the removal of members of the EFF the police prejudiced one political party in favour of another. This gross violation of the Constitution threatens this young Democracy. The De Lille v Speaker of National Assembly case gives is ample authority on the fact that Parliamentary Rules are not beyond judicial scrutiny and the Speaker is not above the law.

It will be an injustice to not give comment on the radical behaviour of the EFF. It should be noted by the public that the EFF is in Parliament legitimately and they represent the electorate in Parliament.

Their behaviour in Parliament must be challenged using the properly enacted laws or rules that are constitutional. The behaviour of the EFF, no matter how radical, unconventional and disruptive, is no grounds for the Speaker, or anyone, to violate the Constitution.

The #SONA2015 brought to light a number of constitutional violations by the Executive branch of government. The speech should have been the focal point of the day, instead a representation of our limping democracy was on show.

2015 ALTUM SONATUR 6

Tumi Malatji

I

t is no secret that the South African Parliament has on numerous occasions been called a circus, with the SONA incident being no different. South Africa, however, is not the only country faced with the issue of physical Parliamentary squabbles. The ‘circus’ is in fact an international pandemic.

Seeing as we inherited our Parliamentary structure from the United Kingdom (UK), let us first diagnose a few Western countries. There is no record of unruly behaviour in the United States Parliament, but in 2008 a journalist threw two of his shoes at former President George Bush during a press conference.

In 2011, during a Parliamentary hearing British media giant, Rupert Murdoch, was attacked with a pie by comedian Jonnie Marbels.

Murdoch was being questioned about the illegal cell-phone hacking scandal, allegedly done by his journalists. His wife Wendi Deng came to the rescue by physically smacking down Marbels. In Italy, a book was published exposing fights in Parliament from 1947 – 2008 in an attempt to illustrate the virtues and vices of Italian politics.

In Eastern Europe, Ukraine holds the prize for most Parliamentary knock outs. Just last month two Parliamentarians from opposing parties had a brawl over a corrup-

PARLIAMENTARY CHAOS tion bill. They walked away with bloody noses and a five day suspension from Parliament. Further east, Taiwan is known for its regular Parliamentary bull fights. The most shocking incident occurred in 2013 where MPs were video recorded throwing water, chanting, fist fighting, shouting in each other’s faces and dragging each other across the floor. Worse off is South Korea, where teargas was used by an opposition member to prevent the ruling party from passing a free trade deal with the United States. In the Middle East, an MP attempted to shoot a fellow MP with an AK47 while Parliament was in session.

He was restrained by security, but managed to fire shots in the hallway.

In the African continent, the National Assembly in Kenya, in December of 2014, turned from a peaceful sitting to vote on a Security Bill into chaos. Those opposing the Bill chose to disrupt the sitting by tearing up the Bill, in an attempt to avoid its passing. Cries of order from the Speaker went unheard and

proceedings were then suspended.

During the SONA debate, President Jacob Zuma stated that “whatever our views about one another or political parties that we represent, we need to preserve the dignity of Parliament”. On the same note, the Speaker of the National Assembly, Baleka Mbete said that Parliament will rely on the Constitutional right of human dignity in its defence. In other words, these brawls pose a threat to democracy, to legitimate public interest and in South Africa in particular, to our democratic constitutionalism.

These fights were not just playground fall-outs. They were opposition to matters such as State Security, trade and Secrecy Bills which affect the legitimacy of democracy. Perhaps violence in Parliaments is not a pandemic, but a cure to retain democracy.

If you are interested in more information about fights in Parliament take a look at: parliamentfights.wordpress.com.

CURRENT AFFAIRS

ISRAEL-PALESTINE 101

Scott Roberts

T

his article is the first in a series of what will be a “law watch” of the Israel-Palestine conflict. In editions to come, this article will focus on specific legal developments in the conflict and scrutinize them. For this first installment, a short synopsis of what has been happening in the Middle East for the past 100 years is presented

1917 – The Balfour Declaration

At the beginning of the 20th century, a political movement known as Zionism had been growing in Europe. Zionism believed that the only response to increasing anti-Semitism and ostracism of Jews in Europe was the establishment of a Jewish homeland in Palestine.

Palestine, then under British Mandate, was considered by Jews to be their ancestral homeland, where they lived before they were exiled by the Babylonians. In 1917, British Foreign Secretary Lord Balfour sent a letter to the Zionist Federation of Great Britain, stating that, “His Majesty’s government view with favour the establishment in Palestine of a national home for the Jewish people, and will… facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the… rights of existing non-Jewish communities in Palestine.”

1947-1948 – Partition and the First Arab-Israeli War

ed to Palestine, to live on land mostly purchased by the Zionist project from Ottoman land owners. Clashes with Arab inhabitants of Palestine were sporadic as Jewish settlement spread. Arab inhabitants of Palestine, many of whom had been living as nomads or as serfs on the land purchased by Jews, were displaced

by Jewish settlement. Civil war finally broke out when the UN voted to divide Palestine into two separate territories, one for Arabs and one for Jews. The civil war continued until Israel declared independence on 15 May 1948. Surrounding Arab states all declared war on the Jewish state.

1967 – The Six-Day War

Israel’s relationship with its Arab neighbours remained tense after the 1948 war. On June 5, 1967, following a movement of Egyptian troops in the Sinai desert, Israel launched airstrikes on Egyptian military installations. Egypt, Jordan and Syria declared war. Over the course of the following six days, Israel captured large areas of land in the Gaza strip, the Sinai desert, the Golan Heights and the West Bank.

Between the time of the Balfour Declaration and 1947, over a mil- The Peace Process lion Jews—mostly refugees escaping Israel made peace with Egypt in persecution in Europe—immigrat- 1978, and returned the Sinai desert.

Egypt refused to govern the Gaza

strip, in which a Palestinian separatist movement had established itself. The West Bank, which had been captured from Jordan in ‘67, remained under Jordanian government until 1988, when it stripped Palestinian citizens of the West Bank of their Jordanian citizenship.

The land remained under Israeli military occupation until 1993, when the Oslo accords were signed.

The Palestinian Authority was given control over areas of land in the West Bank, pending final talks with Israel.

Today

Large areas of the West Bank, they have been unable to come to an agreement with the Israelis which satisfies both their desires and Israel’s desire for secure borders. In 2008, some 98% of the land was offered to the Palestinian Authorities by Israeli Prime Minister Ehud Olmert, which was refused over an issue of Palestinian refugees being able to return to land now considered Israel. Security concerns such as terrorism and rocket fire remain a concern of the Israeli government, and military control over the West Bank a concern of human rights groups. emain under Israeli civil and/or military control. Although the Palestinians hope to establish a state in the West Bank, they have been u

2015 ALTUM SONATUR 8

IS THE DEATH PENALTY

DYING OUT KEY FACTS:

As of December 2014, 98 countries have abolished the death penalty for all crimes.90% of countries have now banned executions. In 2013, at least 22 countries around the world carried out executions.In 2013, worldwide executions increased by almost 15% compared to 2012.

I

t is difficult to mention the death penalty without sparking some sense of controversy among the people around you. Opinions surrounding the topic seem to put people in two definitive corners.

Although the practice endures, it is facing diminishing popularity on the international stage. Is the death penalty a deterrent to crime?

And even if it is, how does this weigh in the balance against the right to life and human dignity?

The United States of America, China and several countries in the Middle East are still advocates of this penalty. America has limited the punishment to be available only if found guilty of murder.

In contrast, China uses it much more extensively. China in recent times, has been considering reducing the number of capital crimes from 55 to 46—taking the smuggling of weapons, counterfeit currency, and nuclear materials off the list, along with fraud and forcing or facilitating prostitution.

Over and above the human rights aspect, the financial aspect of the death penalty should serve as a consideration. Surprisingly, it costs far more to execute a person than to keep him or her in prison for life. A 2011 study found

that California has spent more than $4 billion on capital punishment since it was reinstated in 1978 and that death penalty trials are 20 times more expensive than trials seeking a sentence of life in prison without possibility of parole. California currently spends $184 million on the death penalty each year and is on track to spend $1 billion in the next five years.

China reportedly executes a staggering number of its citizens: 2014, saw China perform an estimated 2 400 executions, which outweighed the 778 people executed in the rest of the world. Chinese authorities don’t release official data on the executions, a figure that is considered a State secret.

Undoubtedly, it is important to debate matters but in the case of the death penalty, it can be argued that fixating on this form of punishment detracts from the real issue. This real issue is determining the reasons why serious crimes are committed and how best these accused persons can be helped by a system that allegedly has driven some of them to commit the crime to begin with. In less developed countries where peoples’ basic needs are not met, desperation can serve as a motivating force for

Alicia Haripershad

illegal behaviour. The broader socio-economic context can result in increased criminal behaviour.

A motivating factor for the decline in support of this practice is the right to life and dignity. These rights are increasingly being understood as paramount, with no balancing inquiry being able to justify the limitation thereof. International law in the form of United Nations Declarations and Covenants, as well as Charters adopted by a majority of countries, clearly show a shift in support of the death penalty with the influence of the international community being to abolish this altogether.

S v Makwanyane is often quoted and every law student’s go to, so it is fitting to end off with the impact this case had. Justice Ismail Mahomed wisely said, ‘The ability of so many people to live comfortably with the idea of capital punishment is perhaps a clue to how so many Europeans were able to live with the idea of the Holocaust: Once you accept the notion that the state has the right to kill someone and the right to define what is a capital crime, aren’t you halfway there?’.

HOW HIGH IS SOUTH AFRICA’S WALL OF SEPARATION?

T

heocracies, as government by clergy in the name of God or the gods, have taken various forms throughout history. Theocracies derive its legitimacy from the divine law.

Theocracies are often oppressive to the human conscience since citizens must obey the law of a god they may not believe in. However, the theocratic trend has not gone unchallenged. Many have attempted to drive the wedge between the State and religion, both in theory and practice. Yet even now, the spectre of theocracy remains.

The current international community is comprised of states with varying degrees of separation between their religions and their laws. The French Constitution constructs the highest walls of separation and states in Article 1 that France ‘shall be an indivisible, secular, democratic, and social Republic. Laïcité, the philosophy of separation, is so deeply ingrained in France that even religious attire is prohibited in schools.

To the other extreme, Iran stands as a contemporary theocracy. Its Constitution declares that all law is based on ‘Islamic criteria’ which apply ‘absolutely and generally’ to the Constitution and every other law in the state. Its Constitution serves not to separate but to fuse religion and government.

This position is more nuanced in South Africa. It consists, I believe, of two component parts.

Alexander Friedmann The first is hard separation, comprised of rules, principles and precedent. Once legislation or judgment concerning religion is enacted or passed respectively, the relationship between religion and the state partially hardens.

In South Africa, hard separation clearly exists: Neither the South African Constitution nor any law or precedent admits of state-sponsored religion. I am free, though

“OVER THE COURSE OF

HUMAN HISTORY RELIGION HAS SHAPED SOCIAL, POLITICAL AND LEGAL THINKING IN PROFOUND WAYS.” not compelled, to practice any belief of my choice. However, if my practice unjustifiably limits the rights of another it will be prohibited. It is the Constitution - not doctrine - that is supreme.

The second aspect,soft separation, is the moral, political, and social reasoning required of lawmakers and judges that precedes any legal process. For example, moral reasoning is required before parliamentary committees can raise the minimum wage. Once this reasoning crystalizes through enactment or handing down judgment, it becomes hard separation itself. However officials’ moral-legal reasoning often reflects their own religious

belief, or lack thereof. The question then emerges: is there separation between religious and constitutional principles in making and interpreting law in our country?

On the one hand, there certainly is. Suppose a judge opposes samesex marriage in her commitment to Christian principles. She cannot also follow that conviction legally by refusing to recognize same-sex unions altogether. She must either subordinate her belief to the constitutional principle of non-discrimination, or recuse herself.

On the other hand, constitutional principles can be indeterminate, especially where no prior interpretive jurisprudence exists. In such cases, would officials resort to public policy, philosophy or their own religion as interpretive aids? How would a Buddhist judge have determined the constitutionality of the death penalty? Or indeed, what would meat-industry regulations look like if drafted by an ethical vegan? The answer in each case is that the officials’ personal belief will inform their politico-legal reasoning - at least to some extent.

Thus, in South Africa, the relationship between religion and law is complicated. The breakup is official, but the chemistry and desire to reunite are still there. So how high is the wall of separation exactly? It really just depends on where you stand.

2015 ALTUM SONATUR 10

STRANGE FRUIT POLICE BRUTALITY

Kneo Mokgopa

The acts of police brutality in the United States have incited furious responses and led to the Ferguson march titled Black Lives Matter.

Three black males were killed at the hands of white males of authority who said they looked suspicious, conspicuous or otherwise dissident. None of the killers were ever sentenced. South Africa’s Constitution has a different history, and the country a very different social consciousness. This article will analyze each case to measure what outcomes, given the same facts, South African law could produce.

Trayvon Martin was 17 when he was killed after shopping in a white neighbourhood. A neighbourhood watchman, George Zimmerman, 31, saw him and called the police, “Fucking punks. Assholes always get away with it,” said Zimmerman as he called 911. A fight ensued between the two and Zimmerman shot Martin, killing him. Zimmerman later claimed he acted in private defence and was acquitted.

In South Africa, the position is different. In Ex Parte Minister of Safety and Security: In re S v Walters, the Constitutional Court confirmed that the use of deadly force can only be justified when the suspect poses a threat to the lives and safety of others. Proportional-

ity is another requirement of our Criminal Law for the defence of private defence to succeed. Trayvon Martin’s reaction, objectively viewed, would seem disproportionate to the attack. Therefore, if Zimmerman was tried in South Africa, it is arguable that Zimmerman would never be acquitted of culpable homicide and would likely be found guilty of murder.

Eric Garner was killed by police officers after allegedly selling untaxed cigarettes. “I can’t breathe” said Garner eleven times while in a police chokehold when he died.

In this respect, the New York Penal Law §121.11 states: “A person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she applies pressure on the throat or neck of such person”. However, the police officer who killed Garner never faced criminal charges.

In South Africa, police officers are only allowed to use deadly force in pursuit of an arrest under certain circumstances detailed in s 49 (2) of the Criminal Procedure Act. The use of lethal force would have been justified if the multiple policemen who affected Garner’s arrest believed on reasonable grounds that the lethal force was necessary to protect the policemen, or any other per-

son, from Garner’s use of imminent or future violence. Garner’s conduct does not fulfil any of the other requirements necessary to necessitate the use of lethal force.

Michael Brown was walking on the street after allegedly stealing from a store when a police officer stopped him for jaywalking.

The officer testified that Brown reached into the police car and repeatedly punched him. When Brown reached for the officer’s gun, the officer began shooting at Brown. Brown attempted to run, but stopped, turned around, and got on his knees with his hands behind his head after the officer fired more rounds. The officer then shot Brown through the head and eye socket, the latter bullet landing in his collar bone.

Considering that Brown was not being arrested, nor was he fleeing or resisting any known arrest when he was killed, in South Africa the police officer would be charged with homicide.

The outcomes reached in the US cases are partly due to their use of the jury system. However, it seems that South African law would not have led to the killers being acquitted.

T

he rise of the Islamic State (IS) has taken the world by surprise.

Within a short time the transnational jihadist organisation has dramatically changed the lives of over eight million people under its rule through law. Occupying a vast area of land within Syria and Iraq, IS laws form a conservative and authoritarian legal structure.

The exact way IS is goverened is unknown because the organisation has not publicly announced its constitutional arrangement.

IS is burecraticallly organised with Caliph, Abu Bakr al-Baghdadi, at its head. Bakr al-Baghdadi acts essentially as commander-in-chief.

The Caliph seems to have two dep-

uties, one in charge of Iraq and the other, Syria. Combined, the three are known as ‘the emirate’ or ‘alImara’. This powerful body makes key policy and strategy decisions.

Under this executive-like body are 12 governors and nine councils that create and implement policies.

They form the legislature-like body.

One council specifically makes laws which are subject to the Caliph’s approval. Nevertheless, theoretically the leadership council can veto the Caliph. Underneath the leadership council is the Shura council, which is composed of nine members well versed in Islamic law. They decide on military and religious matters.

More administrative structures include separate military, legal, security, intelligence, financial, fight-

er’s assistance and media councils.

The legal policies filter down from this superstructure to smaller institutions such as education. The militants have implemented academic guidelines in schools across Syria and Iraq. For example the new academic curriculum in Mosul (northern Iraq) states that music and art are banned; and education in history, literature and Christianity has been stopped. Also being enforced is the idea of IS itself: staff and learners are to refer to Syria and Iraq as IS. Darwin’s evolutionary theory is banned. All non-religious songs are considered to be blasphemous.

The Caliphate vows to “eliminate ignorance, to spread religious sciences and to fight the decayed curriculum.” Male and female learners

and teachers are segregated. The Telegraph reports that “the Islamic State provided guidelines on how women should dress in Mosul, one of Iraq’s biggest cities. The hands and feet must be covered. Wear shapeless clothes that don’t hug the body. No perfume. And, “women have been told to never walk unaccompanied by a male guardian. The Islamic State even ordered shopkeepers to cover their store mannequins with full-face veils.”

The Caliph’s aims somewhat resemble a downscaled version of the cultural and intellectual ‘overhaul’ embarked by Cambodia’s Khmer Rouge. For starters, education in fine arts and physical education has ceased. Statues of famous poets have been demolished.

Shi’ites are seen as ‘infidels’ and Christians must either become Islamic converts or pay a religious tax (or otherwise face execution).

IS recently bulldozed the ancient Assyrian site of Nimrud in Iraq.

UNESCO has described this act as a war crime. This description is in line with international law and customary international law as there was no military necessity behind the destruction of the ancient city.

Surprisingly, IS has enjoyed the benefit of rich private donors (mostly Saudi) who financially and militarily support the group.

Jihadists from around the world have joined in the ideological fight against western imperialism.

Noam Chomsky links America and its allies to the formation of IS. He

cites the 2003 invasion of Iraq as the catalyst for Iraq’s destabilisation and sectarianism. Its past and present clearer than its end, the question still remains: will IS be defeated solely through military force when it has an intellectual, ideological front to it?

Savvas Christodoulou

RIDICULOUS LAWS A Nobody should tell me how to live, right? WRONG! Politicians around the world are choosing willy-nilly to restrict behaviour with some down-right ridiculous laws In Bancroft, Canada, it is illegal to Skinny Dip.

In California it is illegal to ride a bicycle in a swimming pool. In Florida it is illegal to fart in a public place after 6pm.

Driving under the influence of alcohol is punishable by death in El Savador.

Feather beds are illegal in Argentina. Also, every citizen is legally required to vote.

In the United Kingdom, it is illegal to die in Parliament.

In France no pig may be named Napoleon by its owner.

In Alabama, it is illegal to have an ice cream cone in your back pocket.

In Oklahama it is illegal to molest a car.

A law in Milan requires that one smiles at all times or face a penalty.

Up until 2002, Brazil had a statute that gave men up to ten days after the wedding to file for an annulment if they determined that their new wife wasn’t a virgin.

In Swaziland women are banned from wearing miniskirts or crop tops.

AROUND THE GLOBE Research by Simone Adler

In Chelyabinsk, Russia, driving a dirty car could get you fined 2000 rubles.

In Japan women are legally obliged to wear bras in buildings with air conditioning.

In China it is illegal for adult children not to visit their parents often.

In Dubai extra marital sex is an offence which could result in jail sentences of over a year.

In India a man who is in debt can offer up his wife until the debt is paid off.

Chewing gum is illegal in Singapore.

In Australia it is illegal to walk on the right hand side of a footpath.

KIM SAY, NORTH KOREA DO: A CONSTITUTION UNTOLD -Ruva Samkange

S

ince the division of Korea into the North and South in 1948, the North has been under the rule of the Kim family. Governance is based on Kim family orders, which stand above the law, including the Constitution, all forms of civil law, or regulations. The Kim family rule is so far-reaching, that the country is only in the year 103, because their calendar only begins from the Kim Il-Sung’s date of birth: 15 April 1912.

The Constitution of North Korea guarantees all citizens the ‘freedom of speech, press, assembly, demonstration and association’; however, the reality is entirely different. It is difficult to decide where to start in detangling the web of laws carrying any country, but a good place to begin would be the Constitution. The Constitution guarantees that ‘Citizens have freedom of residence and travel’ yet citizens cannot actually leave the country. In fact, leaving North Korea is considered to be one of the country’s greatest offences. If a person is caught attempting to flee, the punishment is execution or an extended stay in one of the country’s labour camps.

A dictator-run country is not com-

plete without a few censorship rules and a lot of propaganda. Remember their Constitutional guarantees of freedom of speech and association?

The government clearly does not.

All legal television programmes are controlled by the State and the use of the internet is limited to a closed domestic network. In addition to this, should one dare to criticize the government they can be sure to find themselves found guilty of treason.

Ladies and gentleman, ‘Freedom of speech’ by Kim Jong II. Also worthy to note is that North Korea follows a system called three generations of punishment; if one violates a law or is sent to prison, their whole family is affected. The family of the perpetrator of a crime could also be taken to prison camp to carry out the punishment of the violator. This law seems to follow the state’s policy of ‘One for all and all for one’. As a Socialist state a lot of the policies are orientated towards considering the greater good, however, the wealth of the country is not spread out amongst the general population, but rather centred among elite who live in Pyongyang, the capital city, which is protected by guards to keep lower

class citizens out.

The country’s population thatlargely live in poverty are still strongly aligned with their leader but they really don’t have a choice.

The voting ballots only give them one voting option upon election time. The ideal of democracy is moot especially since North Korea’s Constitution defines the country as a “dictatorship of people’s democracy”. Contradiction should clearly be a Constitutional guarantee.

North Korea’s laws fit squarely into Austin’s Command Theory, which states that law is an order backed by a threat issued by a sovereign.

The country is run under the tight rule of its dictator with the threat of execution or labour camp as punishment for disobeying laws.

The leader is accountable to no one.

His commands become laws which bind the people and should they disobey, the punishment is severe.

The Constitution states that North Korea is a ‘socialist state that has realized the ideas and leadership of Kim Il Sung and Kim Jong Il’. Kim say, Korea do.

15 ALTUM SONATUR 2015

“His commands

become laws which bind the people and should they disobey, the punishment is severe.”

feature

A

question all Kramerites have to tackle throughout their years on the Middle Campus metropolis: Why am I studying law? The answers given will take a range of forms, from eloquently engineered online job applications to sweaty-palmed interview utterances. Professor Corder put the question to the Final Year class in the first week of lectures to get a better idea of the different characters in our cast as it were. Of course we’ve all got our serious answers, but I’m afraid I would be lying if I didn’t say that a certain blonde lady with a very small dog and a very pink suit didn’t get me thinking that studying Law would be a good idea - and I have a sneaky suspicion that I’m not the only Law student with a fictitious legal influence.

Harvey Specter, Mike Ross, Jessica Pearson. I’d be willing to hazard a guess that any Law student would be familiar with these names, even without watching a single episode of Suits (I know right? Mutiny). I’d go further to assume that the average Law student, myself included, would be able to reel off more attorney names from television and movies than from real life. Hence, I think it’d be fair to say that we have a good number of peers sitting in LT 1, 2 and 3 with deeply embedded Hollywood alter-egos.

The next issue then is whether perception and reality actually intersect - whether the likes of ‘Pearson Specter Litt’ are accurate reflections of what goes on behind

Law on TV: Expectations vs Reality the controlled-access glass doors of South Africa’s Big Five. Driving into Cape Town’s CBD and seeing those big shiny buildings adorning signs of grandeur , you’d swear you could hear that jazzy tune starting up, ‘... everybody wanna know how it feels, everybody wanna know what it’s like’.

These institutions are built on money: they deal with high-profile clients and ooze commercial glamour.

Yet, in reality, expensive suits and suave dialogue often disguise many grueling hours in the office, making deadlines, reaching budget targets, drafting, re-drafting, perfecting and starting over. And yes, Suits does reveal a bit of the candidate attorney struggle, but having peaked into the real hamster-wheel lifestyle, those characters all look far too pristine and well-kept in my opinion.

Personally, my favourite legal personas include: 1. Marshall - How I Met Your Mother’s environmental lawyer who got sucked into working for a corrupt multinational corporation, for the very real motivation of making a de-

Jessica Burn

cent salary and supporting a family.

Ultimately, he quits his job to pursue his dream of working for the Natural Resource Defense Council - idyllic yes, but that’s my kind of lawyer!

2. Ally McBeal - for a late 90s throwback to remind us that lawyers are people too, with their own lives and romantic drama.

3. Danny Krane for his quirkiness, Alan Shore for his wit and dry sense of humour, and the combined Boston Legal duo for their regular nightcaps and chats on the firm’s balcony.

Why is it, that they haven’t produced a single series about, say, charted accountants or engineers?

Because legal drama is riveting, it has the edge (forgive me friends hailing from other faculties). Law is stressful and totally engulfs you at times, but being a lawyer leads you into other people’s lives and gives you the power to provide redress to all kinds of personal conundrums and turmoil. And that’s the stuff that makes for good TV - lawyered!

2015 ALTUM SONATUR 18

Which TV Lawyer are YOU?

WHAT LAW SCHOOL HAS TAUGHT ME SO FAR Just to give you some context: I am a postgraduate law student who came from another univer1. The “Big Five” no lonsity, not too far from ger refers to animals. Although it’s more of a jungle UCT, across what out there than ever before. some know as: “The Boerewors Curtain.” 2. Law students are all supHere are the seven pressed dreamers and creatives, I promise you this. things that I have learned since being 3. If you are coming from the Humanities faculty, evhere. eryday you will gleefully, mentally be singing: “It’s raining men!

HALLELUJAH!”

4. Despite the cut-throat

nature of the legal field, people are kinder than you think, below all the subterfuge. Think high school musical: “We are all in this together” but with longer, more technical words and South African accents.

So, Law School Musical.

2015 ALTUM SONATUR 20

EMMA JOHANNES

7. Basically, doing postgrad

5. Law school teaches us

that the world is a messed up place. It’s full of people who make mistakes, and people get hurt along the way. It’s full of people who have problems and can’t solve them on their own. Luckily, the world has lawyers. Lawyers step in to attempt to right for those who have been wronged. Lawyers are the most underrated superheroes of all time.

6. You may want to give

up more than once (a day). DO NOT. Thabo Mbeki said: “We must not, as fatigue sets in, convince ourselves that the road is too long, that the incline too steep, the loneliness too impossible to bear and the prize itself doubtful of value.” Trudge on through the blizzards of your failures and you shall reap the rewards.

law is like killing six birds with one stone. The fattest of the birds being a smug pigeon named Constitutional law, and the nasty, ghoulish crow being Law of Property.

Make no mistake: there will be tears. This is because that is the nature of law because that is the nature of life. But, if you can, stick it out, further than you ever have before, for every tear there will be a hundred good things.

Things like laughs amongst new friends, pats on the back, “well dones” and “good lucks,” late night banter outside the library during exam time, and an experience that will leave you richer than when you arrived.

A WERKSMANS What would you say are some of the eryone has a vital role to play in qualities one must have to become a the successful running of the firm. successful lawyer?

Any advice or message of encouragePassion for the law, hardwork- ment for UCT students interested in ing, disciplined, organized, deter- applying to Werksmans? mined, problem solving abilities, the personality to interact success- Work hard consistently throughfully with clients on every level. out your stay at university, develop outside interests and balance Jeremy Sean Botha To put misconceptions aside, BA or these with your studies, show inCom (UCT) HonsBCompt (UNIBCom? dependence, entrepreneurship and SA) CA (SA) a passion in everything you do.

Chief Executive Officer We don’t see one as better over the other. It all depends on the individual How invested is the firm when it How would you describe the man- and whether they have an interest and comes to CA training, development agement style and culture at the firm? passion for the commercial world. and retention?

The firm is a meritocracy but also a partnership in the true sense How do you think law schools should This is vital and is a cornerstone of the word. We encourage inde- develop courses to better equip stu- of our firm. We recognise that the CAs of today are the leaders of the pendent thought, but value team- dents for the work place? firm tomorrow. We invest heaviwork, and give our lawyers the We find that students sometimes ly in training and development of space in which to grow their practices and develop professionally. battle to apply their theoretical our CAs. We pride ourselves on knowledge to actual situations and the fact that our retention rate is What are some of the qualities, skills problems so any courses which the highest of all major commerand personality characteristics you may assist with this would be use- cial firms in SA, we may take on look for when selecting Candidate ful. Werksmans offers 2 vacation fewer CAs but we retain more. programs per year which allows Attorneys? students to experience the day to What are some of your other interWhilst academic performance is day operation of a top commer- ests or hobbies outside of work? important, we look for “rounded” cial law firm and we find that stuindividuals. People who have other dents who have attended our va- We have 2 children aged 13 and interests and achievements; leader- cation program benefit hugely. 9, so they keep my wife and I very busy, especially around their school ship, sporting, social responsibilities What do you enjoy the most about work and sport. I run ultramaraetc. Our candidates need to show an thons with my wife, have completability to be able to practically apply your position? ed 8 Two Oceans and 4 Comrades their theoretical knowledge to various problems presented. We look for No two days are ever the same, with her, so running is a big part people who have an undeniable pas- I enjoy my interactions across of our lives. Then my other passion sion for the law and life in general. all facets of the firm, from deal- is aviation, I have a PPL (Private ing with senior directors to junior Pilot’s Licence) and fly regularly. members of our support staff, ev-

S’ PERSPECTIVE Tell us about your experience as a Candidate attorney at Werksmans thus far?

Brittany Feldman B SocSci PPE (UCT) LLB (UCT) Candidate Attorney (first year)

How did you go about deciding on which Law firm/s to apply to? What would you say are some of the key factors law students should look for in a firm when applying for Articles?

Throughout my LLB, people would always ask me what I wanted to specialise in and I really had no idea (and I still don't really know).

When I applied for articles I looked for firms that offered exposure to a number of areas of the law.

Why did you choose Werksmans?

bour law department, which always has interesting matters arising. We are busy with a case involving a dismissal dispute of I have really loved my first few months a CEO of a large company which as a CA at Werksmans. Everyone is has involved lots of intense witfriendly and supportive, which is ness preparation and fact-finding. really important when starting out your articles. I was pretty nervous about entering the real world after How different is your life now than finishing varsity, but at Werksmans what it was as a UCT student? everyone from the receptionist to the directors have been encourag- Working life is very different from ing and helpful and helped make student life. For one thing, there are the transition easy and enjoyable. no Magic Notes for articles so when you have a lot of work to do and very little time to do it in, there are What advice would you give to a no shortcuts. On the other hand, young aspiring law student interest- when you leave the office at the end ed in obtaining Articles at Werks- of the day there are no essays to feel mans? guilty about not having started yet and no tests to spend your weekApply early. It is essential that you ends in the library studying for. apply in Intermediate year if you want to commence your articles after graduating. Definitely apply to participate in the Vacation Programme that runs for 2 weeks in June/July each year. Every student who attends the programme gets an interview for articles at its end. The Vac Programme is also a good way to get a feel for the firm and stand out amongst all the other applcants.

I chose Werksmans because it offers excellent training for candidate attorneys and its emphasis on working as a team. Werksmans hires Candidate Attorneys with the vision that each CA will one day become a director. This means we are provided What was the most exciting case with the tools, support and resources you’ve ever worked on? to learn, grow and become valuable members of the Werksmans team. I am currently working in the la-

HUMANS OF KRAMER

‘What’s Your Secret to Surviving Law School?’’

Be in the sun. Wear sun cream.

And try everything, this city has buckets to offer.

Eddie Wilson

I’ve found that it’s the small things, every act of normal folk that keeps the darkness at bay.

Simple acts of kindness and love - Gandalf.

Mirko Maier

Be consistent!

Chanda Chungu

It’s all about friends. Keep your old friends and be more than open to making new ones Simiso Dlodlo

If you are reading this, it’s too late!

Tanita Gandidze Survival 101: Set goals for the day.

Try your hardest to achieve them and take each day for what it is.

Luwani Longwe.

Get yourself out there.

Christopher Smith

Be proactive!

Cameron Mackenzie

Get involved - join a society.

Be pro-active for your own cause but never forget to do your readings. Academics should always come first.

Chelsea Bruk-Jackson

RAP REPARATIONS: TWITTER WARS B

eing an avid follower of hip hop news, I will be the first to admit that there is a startling lack of intellectually stimulating news when it comes to the industry. You can imagine my surprise, when trolling through the internet, I came across Azealia Banks’ twitter rant about reparations for the descendants of black slaves in America. Now, contrary to popular belief, Miss Azealia Banks is not all wild Youtube videos and strange mermaid lyrics.

Her ‘rant’ explained how Holocaust survivors received their reparation payments and how Black Americans have received nothing.

Miss Banks called for US$100 trillion to be awarded as reparations to Black Americans. #IsThisOverkill?

This idea of reparations for slavery kept following me rather creepily.

Firstly, one must define what reparations are: the action of making amends for a wrong one has done, by providing payment or other assistance to those who have been wronged. Throughout the history of inter-state relations a defeated state would offer payment to the victors to make amends. An example of this comes in the form of the Treaty of Versailles which stated that Germany was to pay reparations.

Closer to home, defeated tribes at

the hands of Shaka Zulu had to pay reparations in the form of cattle.

In terms of legal developments, reparations payments have evolved past being mere compensation for the loss of a war. Cases such as the Rainbow Warrior illustrate that they also offer solatium. There may be no patrimonial loss suffered per se, however,

there has been some unquantifiable loss that has been endured.

This is often called satisfaction.

Of late, we have seen European countries offering Holocaust survivors reparations payments as an apology for the atrocity. France announced that it would give US$60million to such survivors.

Germany has given more than US$61.8 billion to Israel as reparations. Greece (once again) feels it’s being overlooked by the European Union and is calling for Germany to pay it reparations for the scourge of the Holocaust. Through this, we see an important development in International Law - a move away from reparations payments being only for patrimonial

Belinda Hlatshwayo

loss, towards compensation as an apology to a nation or its people.

In light of this transformation, is Azealia Banks’ call for US$100trillion so far-fetched? Given that this amount needs to cover not only the actual loss suffered, but also offer satisfaction, it may not seem like an exaggeration.

One could also argue here that the hip hop driven outcry for reparations is asking the law to take a further leap into the unknown by offering reparations to those who were not directly harmed. However, is that a leap that we would like the law to take? The Herero people of Namibia have asked that Germany pay reparations for the genocide that happened between 1904 and 1908, during the Germany’s colonial rule. This request has been denied, set aside or blatantly ignored.

But it remains a burning one for African states and other historically subjugated people - Who is to say that the descendants of any historical ill cannot claim reparations?

How are we to administer this and where do we draw the line? Slavery ended 148 years ago. Shaka’s Mfecane happened 175 years ago – can I sue the Zulu nation for the displacement caused and the slavery of my ancestors? Such reparations seem to be nearly impossible to administer with the actual survivors of slavery having long passed on.

Meet The Team!

Want to keep the conversation going?

Email: altumsonatur@gmail.com Twitter: @AltumSonaturUCT Facebook: Altum Sonatur Instagram: altumsonatur

Thanks to Fairouz West who agreed to grace our cover with her beauty. By leaving her comfort-zone she has given Altum Sonatur its best cover yet. West is a final year law student.

Photography by Caitlin Le Roith.

2015 ALTUM SONATUR 26

Thank you to our contributers: Sophie Robertson Prashanti Ramnanan Clifford Ncube Tumi Maltaji Scott Roberts Alicia Haripershad Alexander Friedmann Kneo Mokgopa Savvas Christodoulou Simone Adler Ruva Samkange Jessica Burn Emma Johannes Jeremy Sean Botha Brittany Feldman Belinda Hlatshwayo Denver Titus (photographer)

Interested in becoming a staff writer, designer or photographer?

Please email altumsonatur@gmail.com

We would like to thank Werksmans Attorneys for their generosity in sponsoring this edition of Altum Sonatur.

DISCLAIMER: The views expressed in Altum Sonatur are not those of Werksmans Attorneys.