Altum Sonatur: Test 14 Bleed and slug

ALTUM SONATUR

Volume 9 Edition 4

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CONTENTS

3

Thoughts from the Editor

4

Why We Need Women Leading in Law

7

Final Year Law Dance

9

Year end reflections from the LSC

12

Mediation in Family Courts

14

A court case and a conundrum: the Zimbabwean Elections

16

Constitutional Court Srikes a Blow Against Labour Brokers

18

A Robot Walks into a Bar - Who is liable?

20

Emgidini - A Short Story

21

Feminism Is - A Book Review

22

Global Judicial Independence Under Threat

25

Is introducing an open-list proportional representation elector al system the way to close down corruption?

28

Humans of Kramer

30

Why Law is not Metaphysics

32

Contributors

Cover Illustration by Carla Phillips Graphics, design and layout by Tara Osborne

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THOUGHTS FROM THE EDITOR This fourth and final edition of Altum Sonatur brings to a close what has been a challenging, exciting and engaging year for the magazine. In a year in which the faculty has been racked by the CHE accreditation saga, the abrupt departure of the former Dean, allegations of mismanagement, and declining levels of student trust in the institution; Altum Sonatur has done its best to create and maintain a space that is for law students, by law students. We have endeavoured to bring you content which is thought-provoking, critical, insightful and which goes beyond the bounds of the curricula and broadens students’ intellectual horizons. We have striven to discuss topics which are sensitive to the South African and broader African context, and which make some sort of contribution to the project of achieving a just social order. We have also tried to create a sense of student ownership in the publication, that it might be a platform through which students’ thoughts, views and hopes can be shared, explored and encouraged.

Hours of work have been put into this fourth and final edition. Many of the contributors are senior law students who, at the culmination of their law school careers, have given up their time and energy one last time for our student magazine. Zibonele Nkala considers whether the Constitution needs to be amended to allow for an open-list proportional representation electoral system to recover Parliament’s oversight function, while Josh Davis persuasively explains why the law of delict is presently ill-suited to the regulation of patrimonial loss caused by artificial intelligence. Quentin du Plessis gives us a whirlwind tour of the reasons why law is not metaphysics, while Tanya Magaisa provides us with a reality check with her evaluation of the current status of judicial independence in key jurisdictions around the world. The Altum Comm has also provided some of their own thoughtful contributions: we feature a beautifully expressed short story, Emgidini, written

by Sandiso Ludidi, a book review of Feminism Is by Dan

Champ, and an insightful introduction to the workings of family dispute mechanisms in the magistrates’ courts

by Megan Dyamond.

Our external contributor, Amanda Lamond, touches on an extremely important issue in her article ‘Why we need women leading in law’. She discusses the toxic mental health environment which characterises most law firms, and how the lack of work-life integration is still causing women lawyers to leave the profession. On the current affairs front, Tirivashe Mubika considers the recent Zimbabwean election fiasco, questioning whether Chamisa was right to embroil the Zimbabwean Constitutional Court in the matter. Our labour law expert Geoff Allsop provides a razor sharp analysis of the recent Concourt judgment in the Assign Services case, which is set to enhance employment security for the most vulnerable employees in the labour broker sector. Last but not least, we have a final ‘good luck and good bye’ report back from the LSC, who have served the faculty with dedication and tenacity.

I would like to thank the extremely hard-working committee of Altum Sonatur for the hundreds of hours which they have poured into the magazine this year. None of this would have been possible without you. My Co-Editor-in-Chief, Kelsey Pailman (who was not able to contribute to this last edition due to her move to complete her Masters in Germany), has been unwavering in her guidance and support. I would also like to thank all those who have written for us, who have given of their time and bravely shared their arguments and views with their peers. Lastly, I would like to thank all those law students who have supported Altum this year, who have attended launch events, provided constructive feedback, and encouraged us in our efforts.

We hope we have served you well.

Lauren Gildenhuys Co-Editor-in-Chief

BACK: Megan Dyamond – Copy Editor, Lisa Mustapha – General Secretary , Sandiso Ludidi – Social Media Coordinator, Nyiko Mathebula – Images Editor MIDDLE: Kelsey Pailman - Co-Editor-in-Chief, Dan Champ – Senior Editor, Mohini Karappian – Deputy Editor FRONT: Asiphe Mdutywa – Artistic Director, Lauren Gildenhuys – Co-Editorin-Chief, Muriul Kasanga – Senior Editor ABSENT: Rozelle Wentzel – Treasurer 3

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Why We Need Women Leading in Law

“I find being a female lawyer at a large commercial firm incredibly difficult and have had to compromise so much of myself to “fit in” here. I used to be a person who set and achieved goals left, right and centre. Now, my goals are (I kid you not): make it to the end of the year and make more friends. How sad is that?” ~ Anonymous, partner in large SA law firm.

I wish it wasn’t the case that so many women in law feel like ‘Anonymous’ above. Unfortunately, many do. My experience as director of a membership organisation called WOLELA (Women Leading Law), is that while women are reaching senior positions, those that reach these positions have more often than not been forced to adopt a masculine style of leadership and lawyering.

It’s a boys’ club, and they’ve had to learn to play like the boys. But often, instead of directing their energies to changing the profession, these women are struggling to survive it. There are a few things we need to tease out here. To start with, we need to figure out what we’re talking about when we say ‘gender parity’. Does it mean at least 50% of law firm profits must be going to female equity partners? Does it mean 50% of the seats at the board table or the bench are held by women? I don’t think we can reduce the gender parity issue to a numbers game. The real question concerns the quality of women’s lawyering experience. Why? Because as Professor Carrie Menkel-Meadow asks, ‘Are we simply going to see a future in which more lawyers are women, or is the legal profession going to be changed by the women who

practice law?’

I want to turn to another connected, but distinct, issue related to the legal profession still being a boys’ club: we’re not seeing the advanced potential that comes from teams or companies in which men and women work together in ways in which they are more than the sum of their parts. Instead we have a situation in which the women are merely clones of the men. This is a gross generalisation of course, but anyone who has spent time around lawyers, and has some grounding in gender differences or masculine and feminine leadership attributes, will have seen examples of this. Characteristics that make women powerful allies in building businesses, such as leading from intuition or maintaining relationships, are not prized in a profession which prides itself on rational, linear, logical thinking. Firms in which everything is about rainmaking can result in traditionally feminine skills like client retention or team building being overlooked. So, there is a significant cost to ‘boys’ club’ firms in their inability to harness the benefit of the masculine/feminine skillset. That’s a separate cost from the one borne by women in law who

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sa that

ore tion This has g in erarding ainch ms

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By Amanda Lamond are being denied the possibility of self-actualisation.

The retention of women in law is an issue everywhere. A partner in a US law firm put in succinctly: ‘Firms want women to stay. Men at the firms want women to stay, and women want to stay. So why aren’t they?’. Women quit for different reasons, but by far the most cited is the lack of work/life integration. We hear stories from many women who (by the time they realise how frustrated they are) have insufficient emotional, spiritual and physical energy left to chart a new course for themselves. They’re unable to imagine that things could be different, largely because they’ve never seen anyone modelling a different and joyous career in the law. Instead, they’ve seen only women with tougher skins and more resilient immune systems, who have somehow prevailed.

As the brilliant and somewhat renegade psychologist Jordan Peterson (who has worked in law firms for over a decade) points out: ‘The issue is not “why aren’t there more women in positions of power?”, the issue is “why are there men insane enough to occupy

those positions?”’. More and more research shows that the traditional 60-80 hour work week model doesn’t work, except for a few men who are insane enough to pursue financial and prestigious success at any cost.

But enough doom and gloom – we are seeing exciting developments. As we see more women-dominated teams in firms, new norms are being created around issues like leaving time and meeting times. So, the hope is that this will cascade. In teams led by women, no one is mailing team members at 8pm and expecting them to have finished the work at 8am. God forbid this is ever taken to mean that the women are slacking! Quite the opposite, I consistently see women pushing themselves beyond the call of duty. Women in law tend to be incredibly driven and self-motivated. They often drive themselves to the breaking point. Instead of realising this, it seems many firms just put on more pressure by expecting lawyers to be available around the clock, just because technology makes this easy. I want to see firms in South Africa (as in other countries) create a culture allowing for a life outside of the law. Firms could

or ficant

’s a who

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ALTUM SONATUR provide lawyers with support for their ‘life-admin’ and should all by now have breast-pumping rooms. Yet, we must realise this raises another debate – that women must somehow continue to do it all.

I started WOLELA because it pains me to realise that it’s only a minority of women lawyers who are thriving.

Yet there are so many of us who want the experience of young women entering the profession to be different from and better than our own experiences. I’m intrigued by what a ‘successful’ life might look like to each of us, and how to help women figure this out. My bible is the book ‘Lawyers as Changemakers’ by my friend and mentor J Kim Wright. I’m more interested in where we might go, than where we have been. I frequently panic that I don’t have the answers to the gender issues in the profession and that, as director of WOLELA, I think people expect me to. I am often plagued by self-doubt, which is assuaged when a WOLELA member writes to me saying: Before WOLELA I do not think I realised what sort of lawyer I really wanted to be or even really knew my own leadership style. Since joining, I have realised that I am a mentor all round. I have been driven by the desire to prepare young lawyers for the future, to equip them in a way that I never was. WOLELA helped me find this…I have found a new passion for my job. So in case you wonder how much impact WOLELA has, I want you to know ... a whole lot!’

For various reasons, many law firms are reluctant to fund WOLELA’s work beyond the immediate benefits they may reap. More often than not, running WOLELA has felt like I’m carrying a massive boulder up a hill and I’ve pondered whether I might just set it down and skip away! But there are countless women who are benefitting from WOLELA’s services, who drop me a line from time to time telling me WOLELA must continue. Some

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new paths are opening up for us in this second part of 2018. We are partnering with the DGRU (Democratic, Governance and Rights Unit) at UCT and the SA International Association of Women Judges. So, the future looks bright. WOLELA will continue. We will continue to listen to women. I believe we have the answers within us, if we can slow down long enough to listen.

There are many happy, fulfilled and ground-breaking women in law out there. We need to hear their stories and be guided by them, while finding our own unique paths. We need to honour the men who champion women and tell their stories. We need to recognise that the legal profession is generally lacking in work/life integration and introduce new norms into firms that value well-rested employees. We need to give men time off to take their dry-cleaning and attend school performances as much as we do women. We need paternity leave that’s as generous as maternity leave. We need to create spaces for women to network and learn from other women who’ve found a way to thrive. WOLELA is doing what we can to birth a new world in which women in law are facilitating the emergence of a healthier legal system for all of us.

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UCT Law Dance In photos

By Prime Photography

ela.co.za

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A note from the LSC outgoing president Naledi Mbaba

O

ur term in office started off on a very shaky note. With the notice of withdrawal of UCT’s LLB accreditation having been publicised only a week into our term, we were thrown into the deep end and felt compelled to assist wherever we could. All of this was occurring in the midst of protest action on campus, which we as a team supported in principle, which led to the deferred exam crisis of November. What held us together during this difficult time was a shared desire to see the faculty transform into a space where an All Black LSC is not one that would be considered profound but a norm. A faculty that did not alienate people who looked like us but understood that it is built on the graves of our foremothers and acknowledged fault for its role in the injustices of the past as well as pledged a commitment to undo these injustices.

This shared desire later informed a collective objective of creating a conducive but informal space that would allow for extra-curricular critical engagement within the faculty. This was actualised through our termly seminar series that we aptly coined ‘A re bue’, which means ‘Let’s Talk’. We held these seminar engagement sessions once a term with themes varying from ‘Winnie Mandela: The life and legacy’ to ‘Women and Land Rights’, the latter seminar being facilitated by Justice Yvonne Mokgoro and Nolundi Luwaya. It is through these informal conversations that we believe the true work of decolonisation has its greatest effects. It is the hard work of my team and faculty staff who pledged their allegiances with the students which allowed us to have a successful seminar series. Another event we hosted that spoke to our aforementioned

collective objective was the Minimum Wage Panel Discussion with Comrade Zwelinzima Vavi. This talk allowed us to see the role law plays when it comes to the social welfare of workers, whom we interact with daily in the Kramer Law building yet have no insight as to how the recent bill on the national minimum wage affects them.

Our final collective objective was to address the paperless policy. We did this through amending the current policy as it stands to allow for financially vulnerable students to access printing credits and by pushing for an overall review of the policy. Our proposed amendments were passed at board and the amended policy is now fully operational. This was once again an effort in addressing how anti-poor this faculty is.

As a concluding reflection, we implore all those we have learnt and engaged with to continue the much-needed project of community-building within the faculty. Kramer can be a very isolating space for many, and it should not be. We should question everything about our existence within these walls, even when it begins to feel uncomfortable. We should continue interrogating why it is that the faculty culture is so exclusionary, and we should not be ahistorical in our doing so. As a final word, bureaucracy has rarely ever efficiently served the interests of black people and can only be used as a tactic. Its delayed and staggered nature will never truly understand the sense of urgency of the black condition – this is why we need to continue doing the work of mobilising.

#YourLSC #YoursInSolidarity #AlutaContinua

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Reflections on the past year

Itumeleng Chaba

Tanaka Dombo

This year was very draining in trying to fix the many issues in our faculty, but I met many amazing students along the way and I never would have made it without this amazing team! I only hope more change can come and that the issues facing students are brought to the foreground and effectively addressed.

There have been many highs and many lows in our tenure as the LSC and none of it would have been possible if it weren’t for a certain level of self-awareness as a team. It is the fact that we have supported each other throughout this year which allowed us to be able to achieve the things we did and further provide a beautiful example of an all-black LSC that is able to serve students effectively.

- Academic Portfolio

- Student life

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Kelly Sease

Nthabi Selepe

Being part of the LSC 2018 was a rollercoaster. Probably one of the best roles I’ve taken on and would do again.

I certainly learned about the impact a representative body can have on changing how law students experience law school. It is not about acquiring a title, but about the change you want to make for students even if it means going against what you think will benefit/ disadvantage you in your personal capacity.

Despite all the faculty drama, like our Dean resigning, I believe that our team did a fantastic job at staying dedicated and committed even when things were taking unexpected turns. It has been a pleasure and a privilege to be on an all-black LSC and working with tenacious and resilient team members. It was truly an invaluable experience and honestly, I think we kicked ass.

- Vice President Internal

- Vice- President External

Luyolo Mfithi Law students like to complain about something that needs to be done by someone, but they don’t want to be that someone. I urge you to take action, and to be genuinely friendly with one another, in a pursuit to improve Kramer vibes.

Noba anizishayi phof, akhoweyi nalapho.

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Lebone Matshitse I would like firstly to thank you for allowing us to serve you. It has been a very eventful and fruitful term. I am especially grateful to my LSC members for making all of this possible but also for being a pleasure to work with.

- Treasurer-General

Thato Gololo Dear Law Students, 1.

2.

3.

I am grateful for being voted in This year has been incredible I am so glad I’m finished

Siya Boto

Being a secretary general has been a crucial experience in my life, and I have learnt many lessons. The changes that the faculty has gone through with respect to management has seen the LSC receive more support from above and has brought the gap between students and staff closer. The biggest challenge in Kramer is eradicating apathy among the students; the LSC had to toil over the year in an attempt to attract student buy-in that has been lost over the years due to the institutional legacies of Kramer. I would encourage anyone who plans to be part of the LSC in future to ensure communication lines remain open and transparent and to not give up where the push-back from above gets stronger.

- General secretary

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Mediation in Family Courts: A brief look into its workings and the practical consequences By Megan Dyamond

W

hen a couple splits up there are many decisions to be made, none are more complex than when children are involved. Maintenance is one side of the arrangement, contact with each parent is the other. Maintenance refers to the amount each parent should contribute towards the expenses of raising the child. Contact, an entirely separate issue, is the amount of time the child spends with a parent.

Families come in all shapes and sizes, as we learn in law school, and when parents no longer cohabitate they must divide the costs of raising a shared child and decide on a parenting plan. This can be an emotional and challenging experience for each party, especially if there is past conflict – which is usually the case. This is when parties approach the court for either confirmation of an existing maintenance order (making it an order of court) or for assistance in drawing up an order. A magistrate may recommend that parents attend a mediation

session before their next court appearance. This allows them to let off some steam and hash out any issues they may have in order to reach a constructive arrangement which suits them both, with no small degree of compromise.

Mediations are held at the court but are neither official court proceedings, nor are they binding. The process operates adjacent to the court in a more informal manner. A magistrate usually recommends that the couple attend mediation but it is not compulsory, although cooperation typically shows that the parties have the child’s best interests in mind. Mediators are accredited by the Family Mediators’ Association of the Cape (FAMAC) and comprise of either social-workers, psychologists or attorneys. The standard procedure is for both parties to meet with the mediator for about two hours to try to reach a settlement regarding either maintenance or a parenting plan. Two hours does not seem like much but at this point parties would have been long into proceed-

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ALTUM SONATUR ings and would have discussed the issues already – to greater and lesser degrees, depending on the situation.

Court-organised mediations usually have two mediators for each session. Sessions begin by advising the parties of how mediations operate and by setting ground rules for the process, rules such as: keeping the tone and language civil, no interruptions to each other’s side, and general respect for each other and for the mediators. Obviously, with such heightened emotional situations, these are not always followed so sessions require mediators to be able to steer the discussion out of conflict.

Mediators are required to inform the parties that sessions are voluntary, confidential, no substitute for independent legal advice, and without prejudice.

Mediators are expected by the FAMAC Code of Practice to remain professional and unbiased throughout the course of the session(s). FAMAC mandates that neither mediator shall ‘give legal advice on the merits of the dispute being mediated nor shall he or she give directions or make predictions as to the result of litigating the issue(s) in dispute in such a manner as to steer the participants towards the mediators’ preferred outcome’. It is difficult to see how this operates in the public-sphere of court-referred mediation as there is a specified preferred outcome: that which is in the best interests of the child. Mediators would have to give some legal information, if not advice, regarding the consequences of the parties’ decisions.

Commonly when discussing maintenance, mediators do not delve into the minute details of each party’s finances. For the sake of time constraints, they prefer to get a broad picture of costs and earnings before making suggestions for maintenance arrangements.

Usually this is all that is necessary as parents who argue over the costs of every single item are likely to require more detailed enquiries into and verification of finances by the court. Parents are jointly responsible for the costs of raising a child, a responsibility which can cede to grandparents or even siblings under South African law – casting the net wide as to who could be a party to mediations. However, mediators (and the courts) are not unreasonable in their demands and will not ask a parent or guardian to contribute more than they are financially able. It may be recommended that a party find employment or take on more responsibilities – to the extent that they can meet reasonable costs demanded of supporting their child. Where one party is more able to contribute than another despite all reasonable efforts by that other, mediators may suggest that the other party contribute in non-financial ways. This can involve things like offering more time picking a child up from school or helping at school functions.

Arguing for maintenance can become more heated than arguments over parenting plans – although my experience is extremely limited, this does make sense considering people and money are a high-conflict combination. Parenting plans encompass practical arrangements of transporting the child between parents, which days of the week each parent has with the child, and how public holidays and special occasions are split. Once they are decided on in mediation and brought before

ALTUM SONATUR the court, these plans become an order of court (‘consent orders’) and are enforceable. This means that if a parent retains custody of the child outside of the allotted time, without reasonable excuse, the other parent can enforce the order using the police if necessary.

Mediation offered by the courts is without charge. Overburdened as they are, the courts generally only assign one mediation session per couple before their court date. This is primarily in the Western Cape as court-referred mediation has largely failed in other provinces. One session of only two hours is unlikely to have a lasting effect on a couple as parents, but it should help practically improve their situation at the time. Drawing up a practical plan, even one that the parties do not stick to, gives them some point of reference and they can later apply to the court for agreed-upon changes.

If a party reneges on the agreement at their court date where it was supposed to be made an order, then the mediation is ineffectual. Even if mediators offered parties the option to make a mediation binding then and there, as a contract, it would be inconsistent with the court’s role and with public policy considerations of protecting children and ensuring that the parties understand the agreement. Family court matters (maintenance orders and parenting plans) are special circumstances, they create unique debts and are both criminally and civilly enforceable. So, courts are hesitant to make an order enforcing a mediation agreement without the consent of the party who changed their mind. Because mediation is an informal (and brief) process, it is necessary to refer the matter to the court for full and fair treatment – if a party retracts consent to the mediation agreement.

Mediation through the courts is not a perfect system yielding perfect results, but it certainly improves the lives of the children in families who successfully participate. Were the process more widespread and equipped throughout the country, then perhaps the burden on the courts would lessen with fewer trials needed and less process to wade through. Making family court mediation more widespread may also increase respect for agreements reached in sessions, and improve the home lives of the children in question with less conflict between parents.

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A Country, a Court Case and a Conundrum: On the Zimbabwean Political Climate and the Separation of Powers

By Tirivashe Mubika

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t had never occurred to me that a historic day could start off feeling so ordinary, until I experienced it for myself. On the day when Africa’s longest-standing and oldest president resigned from his position as head of state I, a Zimbabwean national, was lounging in my bedroom casually texting a fellow Zimbabwean schoolmate of mine. The moment news of Mugabe’s resignation reached us, our conversation became jubilant, hopeful, and (much to the chagrin of my housemates) noticeably louder. We both became acutely aware of our Zimbabwean identities. Shona now peppered our formerly English-dominant conversation – and we weren’t the only ones who were excited.

My phone came to life with messages and missed calls: relatives, friends, acquaintances all came together to congratulate, to speculate and to revel in this feeling, this Zimbabwean-ness.

So what makes Zimbabwe’s political situation so fascinating to everyone, regardless of nationality? For one thing, it may be because of Zimbabwe’s political history of military revolts and poisoning of political rivals. This history sounds like something out of a Shakespearean play, complete with its own Machiavellian figure in the form of Robert Gabriel Mugabe. Mugabe was Zimbabwe’s head of state from 1980 to 2017. After 37 years in power, his departure was long awaited. The former president’s last weeks in power were plagued by political tension, pressure from the military and social media scandals involving his family. It was clear that Mugabe’s days in power were numbered, and on the 21st of November 2017 they came to a historic end. However, less than a year later, Zimbabwe’s former nemeses, political controversy and international media frenzy came knocking once more. This time the judiciary was called in to intervene.

Mugabe’s departure didn’t mark the epilogue of Zimbabwe’s political distress, but rather marked a new chapter of it. The transition of power after Mugabe stepped down had initially been mercifully smooth, with Mugabe’s former Vice President Emmerson Mnangagwa taking the head of the Zimbabwe African National Union- Patriotic Front (ZANU-PF) political party and stepping up as Zimbabwe’s Interim President. Mnangagwa acknowl-

edged that this position was temporary and called for democratic elections to be held in July 2018. Things were looking up for the Southern African state, as it teetered on the precipice of democracy in a contest between long-time political rivals ZANU-PF, led by Mnangagwa, and the Movement for Democratic change (MDC), led by Nelson Chamisa. The results were announced on the 3rd of August 2018, declaring Mnangagwa the winner of the Presidential election with a win of 50.8% to Chamisa’s 44.3%. The smooth transition unfortunately did not continue. As is usually the case with politics, things turned out to be far more complicated. Police opened fire on MDC supporters who had gone to protest the results of the election, claiming the lives of 6 people. Additionally, Chamisa himself also decided to contest the election results in Zimbabwe’s highest court.

Chamisa and his lawyers, with Thabani Mpofu as lead counsel, claimed that the results of the elections had been doctored and tampered with. According to Business Day, the plaintiff claimed that the Zimbabwean Electoral Commission (ZEC) concocted 69,000 votes to ensure that the election results were in Mnangagwa’s favour. This was just the tip of the iceberg: there were also claims of data manipulation at the hands of the ZEC and ‘ghost polling’ where 9,000 fake polls are said to have been created during the tallying - for Mnangagwa’s advantage. While these were all very compelling claims, the Zimbabwean Constitutional Court ultimately and unanimously dismissed Chamisa’s bid to cancel the election results of July 30th. According to Chief Justice Luke Malaba, Chamisa and his party had failed to provide substantive proof of this tampering and voting fraud, thus the court ruled in favour Mnangagwa and ZANU-PF. Was Chamisa wise to have involved the courts in these political circumstances? Or did his actions invite a violation of the separation of powers?

The separation of powers refers to the manner in which a country’s government is separated into three branches. Namely: the executive, judicial and legislative branches. The legislative branch is concerned with law making, while its judicial counterpart handles the implementation of these laws. The executive branch deals with

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national administration and, in Zimbabwe, the head of this branch is the President. This separation exists as a way to ensure that excessive power does not rest in the hands of any one branch or individual. This separation creates balance. Therefore, in the midst of this very sensational and fascinating political ordeal lies a rather pressing question: should Chamisa have involved the courts in this political debacle in order to promote his political interests?

Based on the concept of the separation of powers and the purpose it serves, the answer should be obvious. However, if we search for an example of the nature of the separation of powers (this time within South African borders) and consider yet another high profile case where the judiciary and executive branch of government came to collide, we find that perhaps the answer is slightly more complex. The memory of the infamous Nkandla case is still fresh in the minds of South Africans everywhere. Who could forget the role that the Constitutional Court played in getting former President Jacob Zuma to pay for the non-security additions he made to his private residence? This case is thus evidence of the ability of the judiciary to check and balance out the power of the executive branch of government as well as implementing the rule of law, that all people are equal before the court. Chief Justice Mogoeng said it best in his judgment in the Nkandla case when he stated that making ‘a decisive break from the unchecked abuse of State Power and resources’ is one of the most vital aspects of the South African Constitution and the vision of those who fought so hard to see it come to fruition. Does this same expansive separation of powers doctrine, which permits the judiciary to reach deep into political debacles, apply to South Africa’s next door neighbour, Zimbabwe?

Surely the heroes who fought in Zimbabwe’s war of liberation from colonial rule wanted their con-

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stitution to reflect similar principles, and for there to be proper checks and balances against the abuse of power in the former British colony. However, the whispers and rumours that the judges who presided over the court case in Zimbabwe are being bribed with millions to rule in Mnangagwa’s favour would suggest otherwise. Zimbabwe is no stranger to corruption, and the notion of money and political power blurring the lines that are meant to separate the governmental branches is not a new one.

There is yet to be any concrete evidence of this bribery.

It would thus appear that although Chamisa’s efforts proved futile, perhaps he was not wrong in bringing the case before the courts. It cannot be denied, though, that bringing such controversial cases to court puts the judiciary’s integrity (or perceived integrity) at risk. Relying on judiciaries to solve electoral disputes is clearly not ideal, even if the separation of powers does allow for judicial checks on executive power.

What could all of this possibly mean for Zimbabwe’s future? On the day of his inauguration, during his speech, Mnangagwa addressed a number of key points that could perhaps serve as indication for the direction in which he wishes to steer the country. These points included his zero tolerance of corruption and his aim to implement the rule of law, as well as his desire for a Zimbabwe that ‘transcends political party lines’ and most notably to set up an inquiry into the tragic events where 6 people were killed by military officials. Though there are quite a few Zimbabweans and indeed people of various nationalities that remain sceptical of where the results of this year’s election will take the country in terms of its politics, its economy and future as a whole; there are those who remain hopeful and wish to see Zimbabwe restored to its once-proud status as ‘The Bread Basket of Africa’. Could Emmerson Mnangagwa be the leader to take it there? Or, was Zimbabwe robbed of the best person for the job in the form of Nelson Chamisa? Only time will tell.

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ALTUM SONATUR

Assign Services case: CONSTITUTIONAL COURT STRIKES A BLOW AGAINST LABOUR BROKERS

G

lobalisation has drastically changed the world of work. One consequence of globalisation is that employers increasingly seek flexible working arrangements with those whom they employ. These flexible arrangements are used by employers to minimise their legal (and in turn financial) costs and liabilities for those who work for them. As facilitated by globalisation, a particular arrangement is ‘externalisation’.

Externalisation refers to a phenomenon where an employer structures their business in a manner that minimises the number of people they employ directly. Labour brokering is one such example of externalisation. In broad terms, a labour broker is a service provider or business which provides casual labour to third parties (known as ‘clients’). The labour broker recruits, places, pays and directly employs the workers placed at the client’s premises. In exchange, the client pays the labour broker a fee for its services and in turn, the client enjoys the benefits of having a workforce it can supervise and issue instructions to without bearing the corresponding legal duties and responsibilities that the client would otherwise have - had they employed their workforce directly.

Legal regulation of labour brokering has existed in South Africa since at least the early 1980s. When the Labour Relations Act (LRA) was being drafted in the early 1990s,

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organised labour pushed strongly for labour brokering to be banned. The LRA, however, did not ban labour brokering. Instead, Section 198 of the LRA – which refers to labour brokers as ‘Temporary Employment Services’ (TES) – gave express legal recognition to labour brokering arrangements. Under Section 198, a legal fiction is created which ‘deems’ the placed worker to be the employee of the labour broker if two broad requirements are met: (a) the labour broker (TES) recruits a workforce which the labour broker places at a client’s premises and which performs work for the client and (b) the client pays the labour broker a fee for placing that workforce at their premises and the labour broker pays the salaries of the placed employees.

Subsequently, the labour brokering under the LRA resulted in many placed workers suffering from exploitation and abuse at the hands of both labour brokers and clients. In large part, this was facilitated by the fact that Section 198 of the LRA did not place any time limit on how long placed work could be implored at the premises of a client. In other words, the LRA failed to specify what was ‘temporary’ about TES clients, resulting in the exploitation by labour brokers of TES employees. Employees who ultimately worked for a client on an indefinite basis – sometimes for as long as a decade. In many cases placed workers would perform the same work as those directly employed by the client, yet they would receive a fraction of the pay whilst being

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ng to okto (TES) arction eated ed oyee two e met: ES) hich es at a which client the placheir ur s of

ur RA d

e at ur large d n 198 e

d be ses of s, the hat TES e exokers ed for ng as orm ent, eing

denied access to other employment benefits afforded to permanent employees. These denied benefits would include participation in pension schemes, medical benefits and promotion in the client’s workforce. Placed workers would also have no recourse against the client if the client pressured the labour broker to dismiss or suspend them as only the labour broker (not the client) would be their employer. Furthermore, labour brokers typically operate in industries such as cleaning and security; work typically performed by workers belonging to vulnerable and exploited groups who generally lack both the knowledge and financial means to protect themselves against such exploitative practices. This inevitably causes for confusion on the behalf of some labour workers as to whom their primary employer is.

Civil society and labour federation COSATU (who equate labour brokering to ‘modern day slavery’) brought sustained pressure upon government to ban labour brokering. Similar pressure has equally been placed upon the Namibian government who temporarily banned labour brokers under the Namibian Labour Act, but that ban was subsequently overturned by the Namibian Supreme Court on the basis that the ban unjustifiably violated the constitutional right of labour brokers to freely engage in economic activity. Mindful of similar potential constitutional challenges to an outright ban, Parliament enacted a series of amendments to the LRA in 2014 which did not expressly ban labour brokers, but substantially limited their ability to place workers at the premises of a client on an indefinite basis. One amendment was s198A(3)(b). This section provides that if a TES employee earning below the amount determined by the Minister of Labour under the Basic Conditions of Employment Act (currently R205 000 per annum) works for a client for more than three months, the TES employee is ‘deemed’ to be the employee of the client. It was this amendment which formed the basis of the Constitutional Court decision in Assign Services v NUMSA; a decision which has struck a major blow against the outsourcing industry in favour of protecting the job security of vulnerable TES workers.

Assign Services involved a labour broker (Assign Services (Pty) Ltd) who placed around 20 workers who worked full time at the premises of a client (Krost (Pty) Ltd).

The placed workers’ annual salary was below the Basic Conditions of Employment Act’s threshold. These workers worked at the client’s premises for more than three months. The labour broker’s employees (represented by trade union NUMSA) argued they had a right to be employed permanently by the client alone under s198A of the LRA, an interpretation called the ‘sole employer interpretation’. However, a dispute arose: both the client and labour broker argued that the client did not become the sole employer of the placed workers. Rather, they argued the effect of s198A of the LRA was that the placed workers now had two employers – both the client (Krost) and the labour broker (Assign Services) – an interpretation called the ‘dual employer interpretation’.

Following protracted legal proceedings before the CCMA, Labour Court and Labour Appeal Court the case finally

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In many cases placed workers would perform the same work as those directly employed by the client, yet they would receive a fraction of the pay whilst being denied access to other employment benefits afforded to permanent employees. reached the Constitutional Court. The Court held the s198A had two primary purposes: (1) to protect marginalised and vulnerable TES workers and (2) to ensure temporary employment services are exactly what they say they are i.e. ‘temporary’. The Constitutional Court therefore adopted the ‘sole employer’ interpretation and rejected the ‘dual employer’ interpretation. On this basis, once the three-month period lapses, placed workers automatically become permanent employees of the client on the same favourable terms and conditions provided to permanent employees, together with the protection of their job security and opportunities for advancement such permanent employment provides. By adopting the ‘sole employer’ interpretation, the Constitutional Court also addressed a fundamental problem the labour brokering employment relationship created: uncertainty on the part of the placed employee as to whom their true employer is. The adoption of the ‘sole employer’ interpretation not only clarified confusion over identifying the true employer, but afforded all rights associated to permanent employees to these temporary employees.

Globalisation and changing economic conditions have indeed altered the world of work drastically. In many third world countries (especially Africa and Asia) exploitative labour practices are regarded as the norm – even regarded as a necessary mechanism through which to promote economic growth. Thankfully, South African institutions (more specifically, the Constitutional Court) does not share this mistaken view. A founding value and right of the South African Constitution is human dignity; a right which vulnerable workers equally enjoy and who (perhaps more so) require the protection of the law to ensure their rights are not violated through the exploitation of their labour.

While Assign Services may sound like the end of the labour brokering industry in South Africa as we have come to know it, this may not be as bad a reformation as some economic pundits and labour brokering agencies would have you believe. In fact, it may go a way to creating a degree of true economic empowerment for the poor South African working class.

By Geoffrey Allsop

17 2018/10/01 7:50 AM

ALTUM SONATUR

A Robot Walks into a Bar

cial programs misfire. In such cases an appropriate legal response is needed. In particular, we require a means of working out how persons who suffer harm at the hands of AIs are to be compensated.

Though the concept of AI is contested, the capacity to act autonomously of direct human intervention is central to any adequate construction. The relevant sense of ‘autonomous action’ can be thought of as the capacity to reason and act on the basis of that reasoning without human interference or guidance. This capacity occurs on a spectrum: at the one end we have minimally autonomous entities like ATMs and ticket machines; at the other are those still merely fictional entities capable of fully mimicking human thought and action.

The AI/ Delict interface raises two broad sets of problems. First, there is the question of how we ought to regulate new and fast-developing technologies. We might think, for example, that such technologies raise a host of polycentric issues and are thus best regulated through legislative intervention. Alternatively, we might think that gradual legal development and caseby-case assessment provides a more nuanced means of dealing with unexpected technological developments. Or, we might think that although a gradual and case sensitive regulatory system is required, judges lack the requisite expertise to provide such a system and therefore an extra-judicial regulatory body is required.

Much of the popular debate over Artificial Intelligence (The second set of problems concerns the capacity of existing legal doctrine to adequately determine who ought to bear the loss when an AI causes harm. Two such cases need to be distinguished. In ‘easy cases’ of an AI causing harm, that harm is attributable to an identifiable manufacturing defect or the wrongful intent or negligence of a human.

By contrast, in ‘hard cases’ no such attribution is possible.

Instead, in such cases it is the capacity of AI to ‘think’ and ‘act’ autonomously that is the cause of the harm. These cases are hard because they do not fit neatly within existing legal doctrine.

Product liability, for example, imposes strict liability on producers and suppliers for defective goods.

The Consumer Protection Act broadens the basis of such liability to defective, unsafe or hazardous goods. Loubser

Who’s Liable?

By Josh Davis

M

uch of the popular debate over Artificial Intelligence (AI) concerns the prospect of a future in which AIs are equipped with intelligence superior to our own. Such discussions invoke the dystopian visions of the Matrix or Terminator movies.

This way of thinking about AI tends to make us forget that AIs already do, and will with increasing regularity, pose more mundane dangers: self-driving cars crash, advanced medical equipment malfunctions and finan-

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arm, uring an. sible. k’ and ese casting

ds. uch bser

ALTUM SONATUR explains that the various criteria ‘essentially come down to a cost-benefit-risk-utility analysis on the basis of reasonableness’. This requires an assessment of the utility afforded by the impugned product relative to the degree of risk that the harm posed by the product will materialise and the extent of that harm. The problem with applying this scheme of liability to AIs in hard cases can be demonstrated by the example of self-driving cars and the inevitability of their causing harm. However, it seems imminently likely that in the future, with technological progression, self-driving cars will prove safer than cars driven by humans. Therefore, in terms of a cost-benefit-risk-utility analysis, such vehicles ought not to count as defective, unsafe or hazardous. The victim of the harm will thus have no means of recourse in terms of products liability. But, we might think, in cases where the AI appears to ‘think’ and ‘act’ unreasonably, it is unfair that the victim should be denied a means of recourse.

Other forms of strict liability – such as those designed to impose liability on owners of animals that cause harm – suffer from a related problem. Specifically, the owner of an animal generally incurs the entire benefit of owning that animal. Put differently, the owner of the animal is the beneficiary of the animal’s presence - not society. That ownership affords no positive externality. This provides an important justification for the imposition of strict liability on owners of dangerous animals: they accrue the entire benefit of the ownership of such animals, whereas society suffers from an increased risk of harm and accrues no benefit. By contrast, a range of AIs – such as self-driving cars or security apparatus – will be specifically created to reduce the risk posed to society in the operation of their function. Private ownership of such AIs will therefore positively benefit society. Consequently, the justification for imposing strict liability on owners of dangerous animals is inapplicable to the owners of such AIs. Vicarious liability might be thought to be an appropriate means of remedying some of the foregoing difficulties. This regime enables one to hold a principal liable if its agent commits a delict within the course and scope of his or her duties. However, the use of this regime of liability with regard to AIs raises a host of theoretical issues. First, we need a means of applying the course and scope test to AIs. Where a human agent commits a delict, we can make intuitive sense of the idea that in certain cases the delict will be sufficiently distantly related to the agent’s duties that it would be inequitable to hold the principal liable. We are able to make sense of this idea because we know that humans possess a variety of competing interests. Some of these are personal and others are professional. By contrast, the notion of an AI possessing competing personal and professional interests makes far less sense. After all, an AI designed to provide security (for example) will only have professional interests. And, by virtue of only having professional interests, it seems that we cannot make sense of the AI acting outside of its professional duties. In so far as the course and scope test is explained in terms of interests and fulfillment of professional duties, it therefore seems that it cannot be applied to AIs.

The second problem in applying vicarious liability to AIs is even more daunting: we must make sense of the notion of an AI committing a delict. This requires that we provide an account of what it would mean for an AI to act wrongfully and with intent or negligence. A determination of wrongfulness ordinarily involves a twostep inquiry: first we assess whether the person committing the delict violated a moral duty, then we assess whether policy considerations justify the imposition of a corresponding legal duty. The problem ought therefore to be apparent: what does it mean for an AI to violate a moral duty? After all, we ordinarily reserve the ascription of moral properties to human beings.

Regarding the assessment of intent and negligence we face a related problem: in particular, these concepts are uneasily ascribed to non-human entities.

Direct intent, for example, requires that the impugned party direct its will toward the fulfillment of a particular outcome. Making sense of what it means for an AI to direct its will toward the achievement of a particular outcome forces us to confront perplexing philosophical questions about whether AIs act through genuine volition. Similarly, the negligence inquiry requires that we assess whether the tortfeasor acted unreasonably. This ordinarily requires an assessment of whether the conduct was other than that of a reasonable person. What standard is therefore to be applied to AI? Are they to be assessed in terms of the reasonable person? Or, if their computing power is such that they could have foreseen with greater accuracy the risks of harm, are they to be held to a higher standard? And, if they are to be held to a higher standard, what ought that standard to be?

The problems outlined in the foregoing are not purported to be insurmountable. With careful doctrinal work it might well transpire that existing legal doctrine can adequately handle the problems posed by AI. Alternatively, we might require the development of a distinct set of concepts in order to appropriately apportion loss.

Whatever the case, it seems that rather than rendering the legal profession obsolete, AI will afford lawyers a new and interesting set of problems with which to grapple.

For now, at least.

Self-driving cars crash, advanced medical equipment malfunctions and financial programs misfire. In such cases an appropriate legal response is needed. In particular, we require a means of working out how persons who suffer harm at the hands of AIs are to be compensated.

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ALTUM SONATUR

Emgidini

By Sandiso Ludidi

I

t is a peculiar sensation, feeling your skin baked by the sun. A cloudless, sunny day. The kind of heat that does not burn but warms the body far beyond comfort. The heat from the sun does not out-burn the excitement in the air though. It can’t compete.

The people of eMvumelwano, Ku Qumbu, are celebrating the return of their son, Lolwethu’s cousin. He is now a man.

Drops of sweat frequent the side of Lolwethu’s temple. His day has been a highway of speeding past dancing children, dancing around ululating women, and nervously avoiding the off chance of having his manhood tested. Stick fighting has never been his strong suit. Being the young man at home, yet a stranger in the village, he would much rather focus on his duties of taking care of the needs of Ikrwala, the new man. Ikrwala is now in the tent. His mothers, even those from the village, now get their chance to bless him with words of wisdom and shower him with gifts of blankets, money and the occasional tease. This is where most elderly women find their fun, making funny jokes meant to playfully embarrass Ikrwala. It is called Ukusoka. The business in the kraal has been completed; executed with extreme efficiency. The elderly men are now full of meat and beer, and grandfather is satisfied.

Lolwethu now sits in the Isuzu, kb350. Indulging in the ritual of green incense burning, he has been in calm colloquy with his uncle Zakhele and his step-father.

Feeling he has reached his peak, he shares his final sentiments. With a swift farewell, he exits the car to return to the festivities.

He walks to the gate, feeling the sun walk by his side, hand in hand with the heat of the moment. Euphoria envelops his senses. It could be the incense from the car.

But something more brings a smile to his face. His sister.

As radiant as the melanin would suggest. His princess.

You can tell from whom she gets her looks - her mother

20 Monday Morning 28.indd 20

stands next to her. They stand amidst a crowd of women and children, looking over at the spectacle in the tent.

In his overalls he approaches with a smile and a thick stick in his hand, as do all young men on such a day.

‘Mholweni Malumekazi’ he says, placing the stick down and taking off his hat. This is what a young man does out of respect of the mother of his bride-to-be. See, in his head, he would play out a rendition, a scene from the love story of the AmaXhosa.

See, a man would ask for a daughter’s hand in marriage through a display of wealth and charm. Playing with the idea of iLobolo works in his head.

‘Mholo mtshana, ingathi sonwabe sonke namhlanje. Uphi uMalume wakho?’ she asks. In a series of movements that would attract the attention of the young women nearby, he praises his aunt. ‘MaFaku, ndzala ka kumnkani uFaku. Malumekazi’, looking at his sister, ‘ndize ngalomcimbi walentombi. Ndize kumcela.’ ‘MaFaku, daughter of King Faku, I have come about the girl. I am here to ask for her hand.’

With a smile on her face, she plays along, feeding soul to the love story. ‘Intombi icelwa ngenkomo kaloku nyana’ - ‘the hand of a girl is requested through cows.’

The crowd of young girls laughs, slight giggles. It is now a show. The time has come to display his might. Reaching into his pocket he asks the age-old question, ‘yimalini ikomo Mama?’. Deep in his wallet he finds a five-rand coin.

Gently tossing it onto the grass by her feet he asks again, ‘how much is a cow, mama?’. She does not respond, as do all potential in-laws in expressing dissatisfaction in the love story.

Finding a ten-rand note, he tosses it with the same charm, ‘Yimalini inkomo mama?’. Though concealing what looks to be a smile, she does not respond. The inlaws are not satisfied. A further five-rand, accompanying a ten-rand note leaves his wallet. ‘Yimalini inkomo Mama?’

With a smile that seems to say, ‘it is well’, she slowly claps her hands, and there is a sound of three muffled applause as she picks up the money to put it in her Faskoti. In this story, it is respect. The girls laugh, possibly at the display.

It is likely that one of them, in a strong fit of laughter, mumbled the words ‘… Imali engaka’.

He has received approval, an acceptance to his request.

He has now earned the right to talk to her. To walk with her. With a shy smile, his sister walks up to him. She finds herself nervous in front of people. ‘O MaDzana, MaMfuphi, Khatsini, Ngxabalala,’ as he starts praising her clan names: ‘Md’ematholeni, mfuph’enkomeni, ndleb’entle zombini, Ngcofela. Ndikuthanda phesheya kolwandle.’

Voices of people mumbling are heard off into the distance, as they walk together, side by side.

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ld atraises meku, I nd.’ ding oku .’ ow a hing ni ikooin. ain, s do the

e cealhe inying a ama?’ claps lause this play. r,

est. with finds Mr clan le e.’ tance,

ALTUM SONATUR

Feminism Is I

Reviewed by Dan Champ

live in the middle of nowhere. Therefore, I have to pre-plan streaming series according to priority before I go home. While season five of Orange is the New Black was a strong contender, my mother had been niggling me about the reimagining of Anne with an E on the basis that the similarities between me and the lead character were (apparently) uncanny – so, being the honourable and dangerously inquisitive daughter that I am, I went with the latter. Though this is not a review of the story of an orphan girl living in the 1890s and the adventurous mischief her kindred spirit invokes, the premise unveiled harsh truths about the urgency of feminism in a time where the only adequate form of education for a woman was that of learning how to bake a lemon cheesecake for her husband’s tea.

So, why this tidbit of seemingly useless information?

Well, it was mid-April when I embarked upon the great adventure of attending the book launch for our own contemporary feminist bible: Feminism Is, a compilation of numerous short essays from inspiring women like Bongeka Masango, Rebecca Davis, Ferial Haffajee, and Dr Tlaleng Mofokeng - to name a handful. These narratives pave the lived realities of women from different backgrounds in which they portray the prime of what it means to be a woman in present South Africa where, in a society reverberating with patriarchy and toxic masculinity, the significance of feminism is continuously contested on multiple levels. Subsequently, Feminism Is reinstates that feminism is an individual experience and not as clear-cut as we would prefer it to be.

Personally, as someone who believes that feminism is a rejoicing of what it means to have my body drowning in oestrogen and all the complications that come with that (minus the five days a month of internal martyrdom), this book celebrates this – thoroughly and vulnerably.

Some stories are sombre and heartbreakingly relatable, while others are honest and raw. Whether or not you agree with the writers’ viewpoints, the ultimate idea behind the anthology is that yes, while the movement may have come a long way since the mid-1800s liberation that was unquestionably geared for white women – we have a mighty long way to go. Feminism Is emphasizes the imperativeness for these conversations to continue, because regardless of her race, sexuality, religion or social standing, each woman has her own trials and tribulations which define what feminism is to her. Yet the book poses potent recurring questions for readers, particularly femmes, like whether or not we are still strong enough to nurture the patience to educate and inform the ignorance of those who, centuries later, still have no idea how or why to begin this dialogue.

So, for those who unknowingly find themselves slotting into the category around which these sorts of questions are formed and find controversial debates to be intimidating - like I once did when words such as ‘intersectionality’ or ‘gender fluidity’ are spurted out (particularly by the ‘woke ones’ in lectures) - this book is an invaluable resource for discovering the context and experiences in which femme bodies have navigated in these waters. The anthology is resourceful, inciteful and unapologetic – the complete experience of being a feminine body that is not only limited to South African borders. There’s a story in here which can associate to any reader, regardless of whether they are new to or already familiar with these topics.

If you are in a fortunate position to be in possession of a copy, I encourage you not to keep this treasure to yourself, but use it as a tool for someone whom you believe may benefit as you have in exploring the feminine journey and in discovering what feminism is…

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ALTUM SONATUR

Global Judicial Independence

L

under Threat

ord Acton once remarked that the most pernicious element of government by the people is the ever-present threat of ‘the tyranny of the majority’. Democratic elections are institutionalised popularity contests. The prettiest, the loudest and the most charismatic candidates will always have the upper hand. Government for the people, by the people, does not guarantee a government that is good for the people. And, when democracy fails the people, the people respond in the best way they know how.

We institutionalise, form rules, strengthen the system and make it harder to corrupt. Legal practitioners will recite for you what they believe to be the bastion principles of true and just democratic rule: the rule of law, separation of powers and the principle of legality.

Everyone must be treated as equal before the law, we must strive to act in accordance with that law, and,

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By Tanya Magaisa

crucially, our judges must be independent. History has been a cruel teacher. It is indisputable that to prevent anarchy, gross human rights violations and instances of oppression; an independent judiciary which owes no loyalty to politicians is vital to ensuring a just state.

When those in power attempt to escape accountability and avoid punitive measures, when they attempt to subvert the law for their own corrupt ends, there must be some mechanism to counter their efforts. Someone must not only say ‘no’, but must have the institutional power and authority to say ‘no’.

This is the ideal which any authentic democratic system must pursue – but what happens when that authority is under threat? When there is a man with a gun at the door in the middle of the night and our guardians of democracy have nowhere to turn, who protects the protector? If you’ve been following current

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ALTUM SONATUR

events you may be aware of the imminent threat to judicial independence in Poland. As I write, there is a motion in the Polish legislative house which aims to make it easier for those in power to choose who they appoint as judges. Common sense dictates that if I get to choose who reprimands me for my wrong deeds it is in my best interest to pick the one who will ignore my transgressions over the one who will not understand, nor accept my justification for corruption. This is the primary and orthodox threat to our judiciary. Pressure by politicians on judicial officers is becoming increasingly common, and is one of the most dangerous pathologies of democratic backsliding.

For a while now, Poland’s judiciary has been in trouble. Since the Law and Justice party (PiS) has come into power there has been a steady ‘politicisation’ of the judiciary. This politicisation has manifested itself through enacted laws which encroach on the fundamental rights of citizens. Earlier this year the ‘Holocaust Law’ was passed. This law criminalises any mention of Poland’s compliancy in the commission of any crimes or human rights violations during the Third Reich. Besides being a severe blow to the right to freedom of expression, the law violates the dignity of its Jewish citizens by attempting to erase the truth of their historical reality.

Laws that aim to achieve the mandate of a political party (such as erasing the evils associated with the country’s image to propagate the victim narrative) are entirely possible in a country that is illegally removing independent judges and replacing them with those beholden to the ruling party.

Absent judges who are willing to overturn such legislative enactments, citizens’ rights and freedoms are at risk of being steadily eroded. This practice is a chilling reminder of the National Party’s conduct after the famous Harris v Minister of the Interior unanimous judgement in 1952. In 1953, the then Appellate Division ruled against the state who had been attempting to prohibit the coloured population from voting. When the National

Party realised that an independent judiciary was the chief obstacle to its grand scheme of racial segregation and the unconstrained violation of human rights, it began to replace independent judges with those whose attitudes were in line with its mission.

Mass protests in Poland reacting to the perceived threat to judicial independence, as well as extensive coverage by the media, have resulted in the international community reacting swiftly to what could soon be a denigration of Poland’s democratic system. In July the European Commission launched legal proceedings against the Polish state arguing that the new method of appointing judges violates articles in two international treaties: specifically Article 19(1) of the Treaty on European Union and Article 47 of the Charter of Fundamental Rights.

Both of these articles guarantee ‘an independent and impartial’ judiciary.

When the source of the threat to judicial independence is located outside the courts and in the political sphere, public support and protest can go a long way in protecting the judiciary’s authority. But when the danger to an independent judiciary comes from within, when it is the judicial system caving in on itself, how do we respond? Who do you reprimand when the notion of judicial independence begins to clash with accountability, especially when it is judicial officers who need to be held accountable?

There are three crucial ingredients to judicial independence; the first is an independent and impartial judge who discharges her duties without ‘fear, favour and prejudice’; the second is guaranteed tenure; and the third is judicial immunity. When one of these key ingredients is removed, the independence of judges becomes compromised. A recent landmark judgment in Uganda’s high court highlighted the constant tension between holding judges accountable when they err and the principle of judicial immunity.

Judicial officers in Uganda have fallen victim to the characteristics of their own humanity. They are

sa Everyone must be treated as equal before the law, we must strive to act in accordance with that law, and, crucially, our judges must be independent. History has been a cruel teacher. It is indisputable that to prevent anarchy, gross human rights violations and instances of oppression; an independent judiciary which owes no loyalty to politicians is vital to ensuring a just state.

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2018/10/01 7:50 AM

ALTUM SONATUR fallible, sometimes make mistakes, misinterpret the law, sentence too strictly, delay procedure and even convict the innocent. Recently, a Ugandan judge issued a warrant for the attachment of property and had mistakenly included the property of a third party. Having been notified of the error the Judge then recalled the warrant with regards to the disputed property, exercising her judicial discretion. The original complainant later argued that in recalling the warrant the judge had acted fraudulently, with the complainant sending out a letter to several officials as well as the judicial commission. None of the superior judges ever called her to account for her actions and the commission delayed the complaint procedure by four years. Then, out of the blue, the commission charged her for misconduct, giving her 14 days to prepare a defense. She took her case to the Ugandan Constitutional Court.

Eventually, in what came to be a landmark case within the Ugandan judiciary, this ‘elephant in the room’ of the clashing principles of judicial accountability and judicial independence was addressed. The unwillingness of judges to hold each other accountable was finally dealt with head on, but with potentially disastrous consequences for the independence of the judiciary. When Justice Lillian Tibatemwa-Ekirikubunza affirmed ‘that an independent judiciary is key to upholding the rule of law in a democratic society’, she simultaneously argued that it is necessary to hold judges accountable for gross negligence and incompetency. She found that judicial immunity should not prevent the judicial commission from bringing misconduct charges against members of the judiciary. However, Justice Kisaakye warned against the majority approach in her dissent. The judicial commission’s misconduct hearing against judge had an essentially amounted to a review of her decision. This created the opportunity for unhappy litigants to bypass the appeals process by lodging complaints with the commission. The result of this is that judicial officers would start to tread carefully to avoid the wrath of the

commission.

While the court ruled in favour of the judge, what the case highlighted is the difficulty of having to balance the interests of judicial independence against the need for fairness and transparency within the justice system.

What we also need to bear in mind, is that a judge afraid to act, to exercise her duty freely for fear she may be sanctioned, is a threat to democracy. When judges become scared of making human errors they become beholden to the same pressures that affect them when it is politicians threatening them.

Ultimately, if we are going to protect the only system of government which has so far permitted the fewest violations of our fundamental right to humanity, we cannot live in a world where we ignore threats to its bulwark. We need to prioritise protecting the institution which is often the most effective in protecting democracy and upholding our rights. For us as citizens, that means being vigilant, and it means protecting our judiciaries as much as is within our power to do so.

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ALTUM SONATUR

Is introducing an openlist proportional representation electoral system the way to close down corruption?

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lectoral systems exist as a mechanism to translate votes cast by the electorate into seats won in the legislature by a particular political party. The focus of this article is the electoral process for the National Assembly, where our parliamentarians are elected using a closed-list proportional representation system.

This system is implemented in our country by requiring each party contesting the election to submit a list - known as a ‘party list’ - of 400 people to the Independent Electoral Commission before elections take place. This is a list of the candidates the party would have fill any seats they win in the House. It follows logically that each party is to submit a list of 400 people, as they could, hypothetically, win every available seat in the National Assembly. Furthermore, these potential MPs are to be ranked from number 1 to 400 by the party (the significance of this will become clearer further on). ‘Closed-list’ refers to the notion that each political party has unfettered discretion (subject to the rules of eligibility contained in the Constitution) to determine who appears on their list and in what order they appear.

The electorate does not have any say whatsoever in who appears on the list. ‘Proportional representation’ means that each party is allocated the number of seats in the NA that is equal to the percentage of the vote that they won. The basic principle of this system is that voters vote for the party of their choice, and the percentage of the vote won by a party is translated into the number of seats they are allocated in the House. The significance of the ranking in party lists becomes apparent here, as if a party wins 50% of the vote (i.e. 200 seats) the first 200 candidates who appear on their list will occupy those seats.

Unlike many other aspects of our transition to democracy, the system of proportional representation was adopted by consensus from the outset of negotiations by the major negotiating parties (the ANC, NP and DP which is now the DA). This system has many advantages, the primary one being that it is ‘simple, fair and inclusive’. Probably its greatest strength is that it permits the representation of minority interests in the legislature and encourages a diversity of viewpoints. This is a consequence of the Droop Quota being employed to determine the minimum number of votes a party needs to ascertain

a seat. In effect, this quota allows representation for any party that can win 0.25% of the vote – with this being the lowest threshold for representation. For example, in the 2009 general elections, 0.25% of the vote translated to 44 029 votes. This allows more political parties, and a wider range of interests, to be represented in Parliament. Another virtue of the proportional representation system is that it promotes transformation, with democracies that use this system having better representation of women in their legislatures compared with those that do not.

The greatest disadvantage of closed-list proportional representation is that it leads to what one commentator has called an ‘accountability deficit’. This electoral system was never intended to be permanent in South Africa, and was adopted to serve a singular purpose at a particular time in history. In fact, it was meant to be replaced after the 1999 general elections. There has been a great appetite for electoral reform in our country based on a perceived lack of will by the Legislature to hold the Executive accountable. It is felt that a change of electoral system would improve Parliament’s oversight functions. The primary reason for this is that our current system does not enable the electorate to hold individual MPs accountable, nor does it encourage MPs to hold the

A prime example of the consequences of not toeing the party line is what happened to Dr Makhosi Khoza when she spoke out against the ANC. 25

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Executive accountable.

A consequence of parties determining who appears on their lists and in what order they are ranked, is that those who are elected are de facto accountable to party bosses rather than their constituency. Since the party bosses are usually appointed from the NA to hold Cabinet positions, it means that lower-ranked MPs are unlikely to want to hold Cabinet to account for fear they will be taken off the party lists. The fact that we vote for parties means that they own the seat. We cannot influ-

ence who appears on party lists or in what order they are ranked - this is the sole discretion of party officials.

Therefore, MPs are not directly accountable to us. If we are dissatisfied with an MP there is nothing we can do to remove them. Our only recourse is to not vote for the party they belong to in the next election. Party bosses choosing who appears on party lists incentivises MPs to toe the party line because to not do so may result in them not returning to Parliament. A prime example of the consequences of not toeing the party line is what happened

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ALTUM SONATUR to Dr Makhosi Khoza when she spoke out against the ANC. The ruling party has particularly strict internal party discipline, a remnant of how it was organised during Apartheid when it relied heavily on discipline in order to advance its objectives in the fight against Apartheid.

This leads one to the question – should the Constitution be amended to allow for open-list proportional representation in order for Parliament to improve its oversight functions? This question is even more pertinent in a country characterised by one-party dominance such as ours. If ANC MPs – who number 249 in the NA – do not exercise their oversight function over the predominantly ANC Executive in fear of the consequences of doing so, it renders nugatory Parliament’s function of holding the Executive accountable.

The reason why the question is framed to refer specifically to an amendment to provide for open-list proportional representation - and not any other electoral system - is because it is a system which still complies with the Constitutional mandate in s46(1)(d) that MPs ought to be elected in terms of an electoral system that ‘results, in general, in proportional representation’.

Theoretically, the open-list system operates in exactly the same manner that the closed-list system does, save for one fundamental difference - that the electorate has some measure of control over the ranking of candidates on party lists. This system places more power in the hands of voters and increases MPs’ accountability to the people. This in turn has the effect of improving Parliament’s oversight function because parliamentarians are no longer incentivised to appease party bosses, but rather to the contrary they are incentivised to hold the Executive accountable because there is the tangible threat of a direct negative consequence of failing to do so (i.e. the electorate demoting you on the party list). Therefore, to heed the call in Section 1(d) of the Constitution and ensure government accountability, we ought to move to a system of open-list proportional representation. Some of the current issues facing South Africa – such as widespread corruption and state capture – provide greater impetus for amending our electoral system. Doing so would promote the foundational values of the rule of law and government accountability found in Section 1 of the Constitution.

The current electoral system is provided for by Section 27 of the Electoral Act and not the Constitution.

Therefore, amending the Constitution is not strictly necessary for achieving the reform that has been proposed.

However, an amendment is advised on the ground that it would be the best mechanism to curb the excesses of state authority, as it is infinitely more difficult to amend the Constitution than it is to amend an Act of Parliament. A constitutional amendment would ensure greater permanence to the change in electoral system and would prevent the system being dependent on the whims of whichever party holds power in the Legislature. The importance of this proposition can be illustrated by way of a thought experiment.

Imagine that in 2018 Parliament amended Section 27 of the Electoral Act to allow for open-list proportional representation instead of doing so by amending the Constitution. Thereafter, in the 2019 general election, Party X wins 63% of the seats in the National Assembly. Party X then proceeds to amend Section 27 to revert back to closed-list proportional representation.

They do this as means of ensuring that the Legislature does not hold the Executive to account, as they are aware that the effect of this system is that MPs are accountable to the party and not the electorate. Certain members of the Executive (Party X members) then engage in a dodgy Arms Deal and are not held accountable by MPs of the majority Party X legislature (in fear of repercussions). Assuming that the system had been changed by way of constitutional amendment in 2018, then Party X would have needed either 75% or 67% (depending on which section the amendment is contained in) of the NA and six of the nine provinces in the NCOP to support their amendment. They would not have been able to amend the system again in 2019 without the input of minority parties, and thus it would have been much more difficult for them to rig the electoral system to minimise the likelihood of being held to account by MPs. A constitutional amendment providing for open-list proportional representation is desirable to achieve the goal of improving Parliament’s oversight function. For the past decade we have relied primarily on the judiciary and the Public Protector to hold the Executive accountable. Parliament has largely abdicated this responsibility. This is not how the drafters of our Constitution envisioned our constitutional order. We have drifted further and further away from our foundational values of government accountability and the rule of law. A constitutional amendment making provision for open-list proportional representation may save our democracy from further decay.

By Zi Nkala

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Humans of Kramer WE ASKED THE FINAL WHAT WERE YOUR

YEAR STUDENTS: BEST AND / OR WORST MOMENTS IN KRAMER?

Nontumekelelo Magwa The people and the relationships that I have formed with them have been remarkable; they were a great support structure. My worst memory has to be in my intermediate year, it was very stressful and I had to also contemplate my future in the legal field.

William Diarra Protests were always a stressful time for me, especially as an international student. There was so much uncertainty and blended learning was another issue. As a result, I am still dealing with the trauma of that period.

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Kudiwa Shonhiwa

Jayson George

I draw my best experiences from being part of the OL team. It has always been a refreshing part of my life as a law student. My worst moments were dreaded by continuously being alone. This place is quite cliquey if you do not have a close circle; it’s easy to sadly be alone.

My time in Kramer has indeed been memorable with few lowlights and many more highlights. My best moments have to be the 3 consecutive years that I have served as an Orientation Leader (OL). It is always a remarkable experience to meet new people every year and help them ease into their first year of law school.

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Why Law is not Metaphysics

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n Minister of Safety and Security v Van Duivenboden Nugent JA cautioned that the test for causation is not an exercise in metaphysics. But problems of causation are an archetypal exercise in metaphysics; if he is right, nothing is an exercise in metaphysics. But some things are exercises in metaphysics.

So he is wrong.

However, his being wrong is mostly a result of phraseology. Law is not metaphysics. This is so trite as not to bear repeating. Still, if we define metaphysics as the ‘inquiry into first principles’, then those statements which are considered trite are exactly those which require investigation. So, let’s do some metaphysics.

One way we might want to defend the claim that law is not metaphysics is by saying that the system of law is metaphysically neutral – that is, that it does not rely on any particular metaphysical presuppositions.

But this claim is almost certainly too strong. In at least some sense, legal practice adjudicates between different metaphysical theories. Consider that, in our law, we often distinguish between the essence of a thing and the mere incidental properties of that thing. In contract law we differentiate between the essentialia of a contract and mere incidentalia. In property law the doctrine of accession distinguishes between the principal and the accessory by considering what gives the composite thing its identity – in effect, its essence.

This is not a metaphysically neutral distinction.

The use of this distinction in our law can be traced to the Roman-Dutch jurists, who, in turn, were heavily influenced by Aristotelian metaphysics. Aristotle thought that all things have an essence. Essence is the thing that gives a thing its identity. This is very vague, but hey, our courts have accepted the notion of essence. More recent philosophers have tended not to be too happy with this doctrine of essentialism. W.V.O. Quine has pointed out that what we take to be the essence of a thing is often a result of how we refer to that thing. For instance, if I refer to a person as a lawyer then being rational would be essential to them (ha!). But if I refer to that same person as a cyclist then having two legs would be essential to them, but being rational wouldn’t.

This seems to contradict Susan Sontag’s apocryphal aphorism that ‘a thing is a thing, not what is said of that thing’. In law, a thing is that and only that which we say of that thing. If we accept Quine’s line of reasoning

then how a court refers to a contract may determine its essentialia. Similarly, how a court refers to a composite may determine its principal. Ultimately, this may affect the outcome of a case. The problem is that little, if any, attention is ever paid to the subtle question of how a thing is referred to.

Take another example. Some metaphysicians are concerned with the problem of ‘event identity’: where to draw the boundaries of events so that one can tell whether one or more event has occurred. It is a problem that, even among metaphysicians, has seemed so arcane and so removed from practical reality that one might as well have asked how many angels can dance on the head of a pin (seven).

In the aftermath of the September 11 attack(s), however, this all changed. Following the destruction of the towers, the owners of the World Trade Center wanted to claim $7 billion from insurance. The problem was that the insurance policy stipulated a maximum payout of $3.5 billion per ‘occurrence’. The crisp legal issue, therefore, was whether the attack(s) on the towers constituted one event or two (the court held that it was one). At this point, you might be forgiven for thinking that our thesis, that law is not metaphysics, might be false. There is a metaphysics of law. Problems of law will often depend on correlative problems of metaphysics. In this sense legal practice adjudicates between different theories of metaphysics. But it does not follow that law is metaphysics. Our thesis stands, but thus far we have failed to justify it.

Perhaps we should attempt to justify the claim that law is not metaphysics by considering that most metaphysical part of the law – the test for causation. As Peregrin Took once said, ‘The closer we are to danger, the farther we are from harm.’ Of interest is that the ‘but for’ test is what is called, in the literature, a ‘counterfactual’ theory of causation. What this means is that in order to determine whether ‘x caused y’ is true, we do not ask what actually happened; we ask what didn’t. That is, we don’t ask whether x did in fact cause y; we ask what would have happened if x hadn’t. If y would still have happened, then x is not a cause of y; and if y would not have happened, then x is a cause of y.

Consider how weird this is. Suppose I tell you it is raining outside. How would you go about determining whether I had told the truth? Barring interrogation,

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presumably you would just go outside and look. This is how most statements work: whether they are true or not depends on whether they correspond to some state of affairs. But suppose now I tell you that you could have done better in the last test that you wrote. How would you now go about determining whether I had told the truth? Looking at the grade you actually got wouldn’t do the trick since it doesn’t tell you anything about the grade you could have got. And yet it seems that I told the truth. Why? You might say that the dilemma is quite easily solved; that you would have done better had you studied harder, and that you could have studied harder. But looking closely this doesn’t solve the problem at all. How do you know that you could have studied harder? You might say that while you should have been studying you instead spent time binge-watching Hell’s Kitchen (recommended, but not during exam time) and that you could have spent that time studying. But how do you know that you could have spent that time studying? You didn’t, after all.

The problem is that counterfactual statements like these never seem to bottom out into correspondence with the real world. This explains the epistemological difficulties our courts have had in applying the ‘but for’

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test for causation. How can one determine the truth or falsity of a statement that already assumes, from the get-go, an alternative set of facts from that which actually happened? Metaphysically, though, that the ‘but for’ test relies on counterfactuals is not odd.

Some of the most well-known theories of causation similarly rely on counterfactual claims. The most famous of these is that propounded by (the late, great) David Lewis.

His theory of causation, although reliant on some questionable - and rather involved - metaphysical theses is, in its effect, substantially the same as the ‘but for’ test.

Lewis’s theory of causation is also similar to the ‘but for’ test in that it fails to non-arbitrarily apply the causal relation to extreme test cases. ‘Symmetrical overdetermination’ arises when two processes terminate in the same effect, such as when two huntsmen simultaneously shoot and kill a third person. Lewis dodges the question of symmetrical overdetermination and the problems it poses. He says that such problem cases are not suitable tests for a theory of causation, since they ‘do not elicit clear judgments’.

Well, ok then. Philosophers might be able to get away with such gobbledygook reasoning, but lawyers cannot, since they are expected to handle real-life situations as, and when, they arise.

That is why law is not metaphysics.

This is not a metaphysically neutral distinction. The use of this distinction in our law can be traced to the Roman-Dutch jurists, who, in turn, were heavily influenced by Aristotelian metaphysics.

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Contributors

Tirivashe Mubika

Geoffrey Allsop

Quentin du Plessis

Joshua Davis

Megan Dyamond

Sandiso Ludidi

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