Volume 13, Issue 2: Autonomy

OCTOBER 2022

ALTUM SONATUR

EDITOR'S LETTER

Autonomy

“The right or condition of self-government”

/ɔː ˈtɒnəmi/ Autonomy is an integral part of enabling people to live their lives according to their own standards It is closely linked to freedom and is therefore a value we, as a society, should cherish. As individuals we should all strive to take charge of our lives to create a better future for ourselves and those around us.

In this edition we explore the effect that the legal status of individuals living in South Africa, as distinguished in a recent constitutional court ruling, can have for their ability to work and study in the country. This is followed by an invigorating interview detailing how to cope with mental health in the bowels of Kramer law school and traveling abroad. Lastly we will discuss the independence of central banks and their impact on democracy

“All we ask is to be allowed to remain the writers of our own story. That story is ever changing. Over the course of our lives, we may encounter unimaginable difficulties. Our concerns and desires may shift. But whatever happens, we want to retain the freedom to shape our lives in ways consistent with our character and loyalties.”

Atul

Gawande, Being Mortal: Medicine and What Matters in the End

Best, Vinayak Panday

The Rafoneke Judgement & Alternatives for Foreign Nationals

Mitchel Muza UCT Law Student

One of the best moments of my life was getting into law school especially at one of the best universities in Africa. I cannot say that I did not know the difficulties for a foreign national to practice law in South Africa The UCT-law website made it explicitly clear that admission into the university does not guarantee admission to practice in South Africa In first year, we also went through the requirements for the practicing law in South Africa and this is when it became clearer to me that I met all the requirements except the requirement that you have to be a citizen or a permanent resident to be admitted into practice and there is no way to get around this requirement Some of the people that I spoke with seemed to know about this requirement whilst some seemed to have only realized late. I tried not to worry about this too much because the fact that we were even admitted studying law meant that there must be an alternative root and something you can do with your law degree.

When we heard that a group of foreign nationals were challenging s24(2) of the legal practice Act which excludes foreign nationals from practicing law in South Africa it gave some hope. Finally! Someone was doing something, but we still kept our fingers crossed we didn’t want to get too excited When the high court delivered judgement in 2021 ruling that the section was inconsistent with the Constitution as it did not allow non-citizens to be admitted and enrolled as non-practicing legal practitioners, we were left both disappointed and hopeful We were disappointed because this still meant that foreign nationals could still not practice law in South Africa, but hopeful because this was a high court decision which was still subject to the confirmation of the constitutional court and also the high court decision was somewhat positive in a sense that it realized there was something amiss in allowing foreign nationals to study law in South Africa and be denied any sort of right to admission and practice.

We all expected the constitutional court to be somewhat kind in light of the high court decision, but the court would have none of it In August of this year the constitutional court in the Rofoneke and Others v Minister of Justice and Correctional Services and others held that the differentiation between citizens and permanent residents on one hand and foreign nationals on the other does not amount to discrimination which is unfair. It therefore upheld the limitation created by section 24(2) of the LPA.

What were the arguments of the applicants?

The applicants argued that s24(2) and section 115 of the LPA violated an individual of foreign nationality’s right to equality because the provisions differentiate between South African citizens and permanent residents, and foreigners. They contended that there was no rational relationship between the differentiation and legitimate governmental purpose and that the differentiation amounts to unfair discrimination.

They essentially argued that the provisions of the Act create an absolute bar to entry into the profession by persons who hold visas and permits that allow them to work in South Africa. They averred that the differentiation had no rational connection with a legitimate purpose because irrespective of the fact that immigration laws allow them to take up employment in the country, they are still not eligible for admission and enrolment as a legal practitioner.

Arguments of the respondents

The respondents on the other hand argued that the provisions were in line with the governmental obligations to ensure that foreign nationals do not circumvent the immigration and labour laws by securing a license to practice law under the auspices of student visa’s They further argued that the law does not require a critical or rare skill as there are numerous citizens and permanent residents who are suitably qualified and are already struggling to secure employment They also stated that the right to choose one ’ s vocation does not fall within a sphere of activity protected by a constitutional right that is available to refugees and other categories of foreign nationals.

Constitutional Court Ruling

The court held that the citizenship is a matter of nationality and not social origin contrary to what was argued by the applicants. As a result, the differential rational by the respondents served a legitimate purpose in that the government has an obligation to protect the interests of its citizens in terms of s22 of the Constitution which allows for citizens to choose their trade and profession freely. Thus, the state could enact legislation to regulate freedom of trade, occupation and profession which was silent with regards to foreign nationals. The court also held that the differentiation in status between permanent residents and nonpermanent residents carried different obligations and corresponding rights. The rationale for accepting permanent residents was because they have been granted the right to live and work in the country on a permanent basis subject to immigration laws which could not be said of non-citizens

Analysis

The first thing to note is it may be difficult to challenge the constitutional court decision as it is the apex court. It is true that law is not a rare skill in South Africa but allowing qualified foreign nationals to practice in South Africa may contribute to intellectual cross-pollination and enrichment of the jurisprudence. Allowing foreign nationals to practice may also lead to legal innovation which is vital in light of the rapid changes in the tech, social and economic climate Further, the fact that the argument on discrimination cannot be sustained does not mean that it is in the best interest of South Africa to continue to implement the permanent residence requirement. It has also been rightly argued that South Africa should open its doors to foreign legal professionals as has been opened by other African countries in the past for example in the S v Tsangirai case where George Bizos represented foreign nationals outside of South Africa.

Further, the judgement means that the only way as it stands for foreign nationals to practice law in South Africa is if they acquire permanent residency which is often an onerous process Some students who studied and obtained their degrees in South Africa are forced to divert from the legal profession and the resources spent in this regard could be utilized for other things. As an additional point, some foreign nationals are not allowed to practice law in their own countries after studying in South Africa. South Africa should take cognizance of its economic position in Africa and how many of its trading partners have their citizens come to South Africa to get all the relevant legal qualifications only to be denied a chance to enter the legal profession in South Africa. Rather, South Africa should take the lead considering its position and open up to legal professionals who are relevantly qualified.

Below I have listed some alternative options for foreign students who are likely to be impacted by this judgement:

Applying for articles and getting admission in your home country.

Becoming an academic although this is also still subject to you meeting certain work permit requirements

Becoming a consultant

Advising. Copywriting. Marketing. Legal tech.

Work with international firms; For example: Linklaters, BakerMackenzie, etc.

Clerk of the Constitutional court. Legal Researcher.

Work with non-governmental organizations.

An Interviewwith NatashaTheunissa n

Highlights from our Interview with Kramer’s very own @nattymushhi

An invigorating conversation on dealing with the stress of law school, travelling to Chile and insights into the legal system there

Natty is a final year law student who can be described as incredibly funny and a positive presence on campus. For many students, University life is not meant to revolve around academic pursuits to the exclusion of all others, but rather it is a place to grow and explore different people, perspectives and activities

However, Kramer is notorious for its intense competition and sheer volume of work that can easily bring any student to experience heightened anxiety and stress. In this interview Natasha shares her experience at Kramer and her journey in putting her wellness first, solo travelling to Chile and insights to the Chilean legal system

This is truly a story about being decisive and autonomy.

Interviewed by Vinayak Panday.

Vinayak: Just broadly, how have you found studying law at UCT?

Natasha:

Really tough. In my first year I was just doing law, but starting in second year I had to get a job and then last year, I was working almost full time. It was really, really rough to do both of them.

Law is really competitive, which is like difficult to manage. I've enjoyed it in terms of like the content, but the experience itself has been a lot rougher than I thought it would be.

V:

So why? Why did you choose to go to South America?

N:

So I am half Chilean, so my mom is from Chile. So my entire mum ' s family lives in South America. So I went there to go and stay with my aunt who is a psychologist, so that she could help me with the mental health journey as well. Because I was going through really rough stuff and the people around me , nor did I myself, know how to deal with it effectively. So I went to stay with my aunt, who obviously has the knowledge but also is like able to take care of me as well as take me around Chile.

V:

What was your highlight of the trip?

N:

OK, so I actually made a list of places to go, food to eat and activities to do in Chile before I went there. So like took all of like the tourist attractions and like extras of places to go to and I did my best to go to.

In Santiago, which is a capital, I went to almost every suburb and like everything that there was to see, I saw it. And then we also went to the beach, which is about an hour and a half, two hours away.

That was our little excursion outside the capital. My Favourite place is the Bahai temple. Which is an Iranian religion and they have temples on all the continents and the South America one happens to be in Chile in the capital city Santiago. It was very peaceful, quiet and serene to walk in the gardens and experience the architecture. It was calming and a wonderful place to be.

V:

Did you visit any Courts whilst you were there and do you have anything to share about the legal system there?

V:

Yes I did and that was really interesting experience because it is closed to the public. So you are not able to go into the courtrooms. The legal system is different because they have Spanish law and also French law influences.What seemed peculiar to me was the Chilean law of succession. There seemed to have no freedom of testation in the sense that you can write a will but it will only be valid and binding if your family accepts the will Despite that, I did notice that the law of contract is very much similar to South African law of contract.

V:

Are there any insights that youwould like to share to a student that would wish to to go on a journey, you know, take a few months off and just travel? Or that is unsure about whether or not to take that leap?

N:

I think it's definitely a good idea to do If you think you can handle it. Because in my case, I had to defer my exams. So if you ' re taking the leap during the term, then I'd say it has to be something that you ' ve thought out. But I think it's a really good idea get to know other cultures and expand your knowledge a little bit. To learn about how they practice law in different places, what you would need if you want to go there to work as well. Because there's some countries where it's really easy to practice law and others where it's a little bit more difficult And then honestly just do what's best for you For me it was really important to do this and it has completely helped me and I don't think I'd be in the same position today if I hadn't done it. So at the end of the day, it just comes to whatever is best for the person.

V:

And as a young person travelling, were there any responsibilities or skills that you developed along the way?

N:

So I travelled by myself on the planes. I actually missed the flight because I fell asleep. So that was absolutely horrible. I ended up in an airport with no Wi-Fi and I had missed my flight .So time management is a key skill to develop!

In terms of being in Chile by myself, I actually downloaded an app called ‘Bumble’ and it's got a friend function where you can like make friends And I made a really good friend through that app. So I didn't have to be alone. So that's a really good idea to like get on an app like that and make friends and then you can obviously explore. A lot of the time you get to make friends with local people, so the friend I made showed me places that like you don't hear about on the tourist sites. So that's a really good idea. And then I had to learn to be really independent and like figure out how to use the train, how to walk places. It's an experience and it's a really good one.

V:

Do you have any advice you’d like to share for a student battling with mental health?

N:

In my case it was like the combination of doing law and trying to work at the same time, so I ended up having to quit my job, which is quite a big step when you live on your own obviously. Law because of how it's like structured in the sense that like you can do your best and you still get like really bad marks. It's lonely and luckily now we ' re going back to in person so we ' re able to like connect with people but I think it's really easy to get sucked into thinking that you ' re not good enough because your marks aren't good enough, or into believing that you have to be competitive or that everyone ' s out to get to you. I think it's definitely important to put yourself first, use the resources that are available to you. Use the Universities resources, especially student wellness services

I think a lot of people are struggling even if they don't show it. So like a lot of people are going through the same thing and just learning that it doesn't end with law. Like there is life beyond it and it doesn't have to make you feel like your worth isn't defined by the marks you get or the firm you go to. Like at the end of the day, doing your best is good enough.

ATTHE ENDOFTHE D ,YA

DOOGSITSEBRUOY E N OUGH!

MONEY

Zvikomborero Nyika

UCT Law Student

Envision the ordinary South African when buying petrol, bread, milk, and any basic item; the cost of living has a natural political attachment to the man they elected to lead their nation Who is to blame? The African National Congress, apartheid, The International Monetary Fund, foreigners, the President? There is an intellectual constituency that believes the nation’s current economic problems rest at the heart of the ownership, independence, and mandate of the South African Reserve Bank (SARB) In this article, we shall assess the legal relationship between the central bank and the state And how the law could create a platform for economists to actualize the aspirations to cure wealth inequality and redress racial inequality.

History

The SARB was formed in 1921 against the backdrop of monetary conditions emanating from World War I. At the time currency operated on a gold standard basis. The gold price in the United Kingdom was higher than that in South Africa. This created a buying and selling arbitrage. Banks requested the government to relinquish them of this obligation to convert notes into gold. A select parliament committee in consultation with industry players recommended an establishment of a central bank. Shortly after that in 1921, the central bank of South Africa was established

What is the role of a modern Central Bank?

Monetary policy is the bedrock of modern central banking Central Banks have a market regulation role together with a monetary role Economists have a syndrome of using complex language to gatekeep their area of study, hence it is critical to breaking down how these tools operate.

What is monetary policy? Economics

professor David Moss describes it as the efforts of a central bank to influence economic performance through short-term interest rates and money supply Three basic tools influence performance Firstly, the central bank lends to banks at an interest rate it chooses Money has a price, meaning if the interest rate is low more economic activity will occur through borrowing and the inverse is also true It is crucial to note that interest is the price of money Hence, there is a recent hysteria on interest rates because they impact the cost of borrowing and spending Secondly, the reserve requirement on bank deposits is a tool The central bank sets a proportion of every bank deposit that must be held. If the reserve amount is low that means more money is loaned pushing economic activity. Raising the reserve amount places brakes on lending, hence slowing down economic activity. The third basic tool is open market operations. When the central bank wants to increase the money supply it buys assets from private institutions and government bonds. When the central bank decides to halt the money supply it implements an open market sale which withdraws money from the economy.

What is the mandate of the South African Reserve Bank?

The central bank’s primary mandate is to protect the currency and foster sustainable economic growth. There is a constituency that argues that the emphasis on protecting the rand is in the interest of capital and does not trickle down to support the poor. This school of thought is led by the miners’ unions. In apartheid South Africa the rand was kept healthily balanced so that multinational corporations could access their exit options into other currencies maintaining a profit.

Furthermore, this left-leaning corner points out that the rand’s strength does not encourage export and hence has seen a decline in manufacturing However, the constitutional dispensation has seen the SARB’s interpretation of section 224 (1) as maintaining price stability which is keeping inflation under manageable levels to protect the poor The SARB points out that inflation wipes out the purchasing power of the poor effectively prejudicing them 10

Criticisms of the bank from the left

There is an argument that the central bank has failed to balance economic development in pursuit of price stability. In 2015 the National Union of Metal Workers criticised the central bank for several reasons. It alleged the bank was failing to control inflation, a lack of democratic transparency, inability to adapt to development agendas, high-interest rates, and inability to solve imbalances The EFF has also echoed its criticism of the central bank in similar terms The assertion is that the ‘white monopoly capital’ benefits from speculative capital inflows (which are premised on a strong rand) into financial instruments that do not help the poor This constituency argues that the central bank’s legal mandate must be changed to match the needs of the South African population They argue that the bank should have a full employment mandate given the high unemployment rate Their rationale is that the central bank has not been ambitious enough with interest rates The rates have been high mostly ranging above 5-20% for most of the 21stcentury They point out that high-interest rates have meant that black business has had access to expensive loans and hence has been deterred from participating in the free market The question that emerges is that has the bank failed to meet the evolving needs of the nation and should the law look to alter this position

Has the bank failed, and should we draft a new mandate?

Section 224 (1) is already inclusive of what the other constituencies may want the bank to pursue. Full employment ambitions are attainable through the current mandate. Traditional economics points out that the Philips curve creates a trade-off between employment and inflation. There is no need to get into an intellectual debate over this contentious matter. As lawyers, the idea is to create the legal room for an economist (Although lawyers have shown to be brilliant central bankers for example, Jerome Powell Chairman of US Federal Reserve). Legal room refers to the security of tenure and independence. The wording of the section has no ambiguity. Employment may be read as an obvious salient feature of economic growth, hence there is no reason for the central bank to get a constitutional amendment. Instead, there are several statutory tools within the arsenal of the executive to guide the central bank while maintaining its independence.

Should money be depoliticised?

Is the public right to blame the presidency for inflation and the cost of living? The central bank is heavily insulated by section 224 (2) which guarantees the bank's independence The particular provision also gives the government policy guidance to the bank Interest rates are powerful tools that can be used for political purposes In apartheid South Africa the National Party lowered interest rates in a bid toward a byelection in Primrose This proved to be crucial for the National Party as they won the seat The purpose of having an independent bank is that these quasi-public officials who are unelected do not have pressure to make a populist decision Instead, they must make long-term sustainable decisions that give fiscal policy (government spending) a chance to transform the economy. There is an argument that the minister of finance must carry the burden of setting rates. The Bank of England only got full independence in 1997 after Gordon Brown ceded the Chancellor’s right to set interest rates. This illustrates that model could work as England operated on such grounds from 1947 to 1997. Economists argue it is an isolated case and that there is enough data to illustrate the effectiveness of central bank independence. Furthermore, the political climates are different hence a comparison may be fundamentally flawed.

In the constitutional dispensation, the court made a critical intervention in the central bank’s independence (Public Protector v South African Reserve Bank). The public protector’s office had been investigating a R3.2 billion preconstitutional transaction between the Reserve bank and ABSA. There were serious allegations of corruption. The public protector had intended to change the bank's mandate away from currency protection to “socio-economic well-being of the citizens’’. The Court threw away Advocate Mkhwebane's case with serious punitive costs. Mogoeng CJ held that the current wording of the provision does not necessarily show obvious favour towards any particular group and the central bank must be trusted. He also held that the central bank is not beyond legal reproach and the nature of the case illustrated intimidation by the bank. He stated that no institution should use the courts to institute a culture of impunity and untouchability. The SARB in its submission had stated that the president had no role in the promulgation of new legislation to change the mandate of the bank. The court reminded the central bank of section 85(2)(d) of the Constitution which gives the executive the imperative to carry legislation forward. This illustrates that if there is an issue with the composition of the current central bank setup the president has the constitutional arsenal to change it. Keynesian economists are likely to agree with the mould of left-leaning educated They believe central bank independence may conflict with democratic values hence the court must open a clear path to holding the bank accountable

Is the ownership a problem?

The South African Reserve Bank's private ownership has created a perception of private influence over the bank. The aspersions of conflation between the bank and private business by the Public Protector, unions and the EFF have not helped the outlook of the bank. In practice, the regulating act of the central bank stipulates that the owners nominate 7 directors of the board (out of 15). It could be argued that if the central bank were fully state-owned the selection of the directors could be done differently. One may even suggest a nomination process of judges as a template of how to select directors of the bank. However, does the composition of the board have an impact? The state chooses the other half of the directors and elects all top senior positions such as the governor. The state also selects the majority of the monetary policy committee members. This is the committee that is crucial in the promulgation of interest rates.

The governor sets the inflation target in consultation with the minister of finance illustrating the government's tools to work with the bank. What rather haunts the central bank is the perception of that collusion. The public needs to have faith in the central bank otherwise its measures are useless. Credibility is key to the institution’s effectiveness. Take for example Zimbabwe’s central bank has struggled to impact the economy after its colossal failure to control inflation in 2008. This is due to a lack of credibility and alleged state influence. However, it is common practice for central banks to be stateowned. The ANC passed a resolution to nationalize it. There are hurdles such as market sentiment, after the purchase financial markets may collapse. Furthermore, a price needs to be agreed upon by the current shareholders. The central bank's shares are not remarkably profitable, but the sale would be a promising payout for the shareholders. Ownership change would likely bring a minimal operational change unless the independence of the bank is altered through mandate.

A possible solution is that the SARB may be bought by the state, which will appoint members of the board. The legislation would have to be crafted with several guards to protect the bank from government interference.

Conclusion

Central banks are a trending topic now given the impact of the covid 19 pandemic and the RussoUkrainian war which have put pressure on basic commodities. The South African Constitution is perfectly balanced on the mandate of the bank and has created checks and balances to ensure the bank is well insulated. However, these quasipublic officials who lead the bank have an enormous bearing on our day-to-day life and who will be elected in the next cycle. It must be stressed that the state has all the relevant constitutional tools to bring sustainable economic growth hence the executive should take responsibility for matters concerning the employment and socio-economic wellness of citizens.

M E E T T H E T E A M

Editor-in-Chief: Vinayak

Panday

Deputy Editor-in Chief: Jered

Shorkend (acting)

Secretary: Jered Shorkend

Treasurer: Joshua Van Rhyn

Editors: Anna Emery; Daniel

Hukamdad; Joe-Dean Roberts and Rebone Phetla

Graphic Designer and

Photographer: Anna Emery

Social Media Manager: Joe-Dean Roberts