Altum Sonatur: The New Normal

CONTENTS PAGE

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Editors’ Note

Fees in a Pandemic

Get to Know a Lecturer: Lauren Kohn

A Year Into COVID-19: Students Share: Things An Overview of the We Miss about Kramer Impact on Human Rights Four Lessons for Life When this Is All over.

Ruxton McClure: COVID, Tele-working and the New Normal

Expropriation without Compensation: Ins, Outs, Doubts, and Importance in the COVID Context

Students Share: Online Learning and Mental Health Tips

A Judicious Judiciary?

An Evaluation of Three Lockdown Regulation Judgments

Poem: Touchable

Prima Facie fun: Kramer Krossword

Prima Facie Fun: Riddles and the Lawyer-Cat

Quiz: What kind of lawyer will you be?

Humans of Kramer

Meet the Altum Sonatur Committee

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Vaccine Apartheid: Where Geopolitical Power, Inequality and Corporate Greed Collude

Acknowledgments and Answers to the Kramer Krossword and Riddles

THE NEW

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NORMAL

ver the last year, COVID-19 has contaminated its way into our psyches, our conversations and our lived realities. For months, we struggled to talk about anything but the pandemic: suffocated by what we could no longer do, what was different, what was new, and what we had lost. Terms like ‘lockdown’, ‘social distancing’, and ‘self-isolating’ have permeated into our every-day lexicons. But, as humans (and as law students!), we also learnt to adapt, as humanity somehow always does, and we continue to do so, constantly, ventilating our new realities and trying to make sense of what still feels like one long episode of Black Mirror. So, here we are: The New Normal. What does it look like?

This edition, the first of 2021 and the first time that Altum Sonatur has gone completely virtual in print-magazine format, addresses exactly that question, through a legal lens. First, we take at a look at how the Global North is causing a system of vaccine apartheid and what this means for the future of vaccinations in South Africa. Next, we reflect on university fees during the current climate of online learning: should they be increased, decreased, or frozen altogether? After this, we broaden our scope to investigate how human rights in South Africa have been affected by the virus. This is followed by four lessons we can learn from this crazy pandemic that we can integrate into life beyond COVID. We also look to the new Expropriation Bill, to see how this would change access to land, especially when so many in South Africa are facing even more adversity from the multifaceted effects of the pandemic. Lastly, we examine the Judiciary’s role during the hard lockdown in declaring regulations invalid.

We also have a beautiful piece of poetry; an interview with UCT lecturer, Lauren Kohn; and a piece penned by Ruxton McClure, a South African lawyer working for the World Trade Organization, who shares his experiences of pandemic life in the working world. As if this issue is not jam packed enough, we also have a section titled ‘Prima Facie Fun’ where you can find a Kramer Krossword, a ‘what kind of lawyer will you be?’ quiz, riddles, and an explanation of Lawyer-Cat – because we all need a laugh, even during a plague. Then, be sure to check out our online learning tips, tips for your mental health and a list of what we miss most about our beloved Kramer – all contributed by students! Lastly, engage with the ‘Humans of Kramer’ and ‘Meet the Altum Committee’ sections – because connection (even virtually!) is important.

If you would like to contribute toward our next edition, email altumsonatur@gmail. com or DM us on Instagram at Altum Sonatur UCT. We are always looking for writers but we also want your visual art pieces, poems, cartoons, reflective works and anything else you can think of – we want to know who you are behind the law school mask (ha).

Stay safe and make sure your microphones are muted, Jaime Uranovsky and Adenike Fapohunda

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he 11th of March 2021 marked the oneyear anniversary of COVID-19 being declared a pandemic by the World Health Organisation (WHO). The pandemic has caused devastation across the globe: killing over 2.69 million people and bringing economies to a standstill. There is, however, a flicker of hope as various effective vaccines have been developed. Unfortunately, this flicker is being snuffed out by wealthier countries in the Global North whose actions have created a system of “Vaccine Apartheid” – a term used to describe the inequitable access and distribution of vaccines across the world. Dr Tedros, the WHO Director general, has classified this as a ‘catastrophic moral failure’ for which the price will be disproportionately paid by poorer countries in the Global South.

This, however, is not simply a moral conundrum as access to essential medicines is provided for under the right to health which is recognised both internationally and domestically. International law instruments such as the United Nation (UN) Guiding Principles on Business and Human Rights (often referred to as the ‘Ruggie Principles’) have emphasised that while states are the primary duty bearers, companies have 4

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a responsibility to respect human rights. While the Ruggie Principles are soft law, it has been widely supported by states, civil society and even various corporations. More specifically, in the Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines, the former UN Special Rapporteur – Paul Hunt, stated that pharmaceutical companies who are patent holders of life-saving medicines bear additional duties especially when the patented medicines have been developed with great aid from publicly funded research and laboratories.

Wealthier countries such as the United States, Canada and the United Kingdom have had the opportunity to pre-order vaccines from various pharmaceutical manufacturers. This has left other countries with no option but to wait at the back of the vaccine queue.

Canada, for instance, has procured five times the amount of vaccines necessary for its population size. Vaccine hoarding by wealthier countries threatens global immunity, and to a large extent, Priyanka Naidoo

constitutes a form of vaccine imperialism.

While few of the countries who have had early access to the vaccines, such as New Zealand, have committed to sharing their surplus vaccinations with neighbouring countries, betting on the benevolence of wealthier countries will not bring an end to the pandemic.

It may be admirable that the USA has been able to administer over 107 million inoculations in such a short space of time, but one cannot help but see this as a gross indication of global inequality.

This is especially so, as it is estimated that at the current rate, parts of East Asia and Africa may only be able to vaccinate their population by the end of 2022 or even 2023. Vaccine apartheid and vaccine imperialism constitute the biggest threat to the prolongation of the pandemic. While wealthier countries may think that it would simply be sufficient to vaccinate their population and close off their borders, the liberalised global trade regime and supply chains mean that contact is both inevitable and necessary. It is clear that the COVID-19 pandemic is the biggest public health crisis in modern history and in order for us to address it accordingly, a human rights approach to vaccine access and distribution needs to be prioritised.

The WTO TRIPS Council Coincidentally, 11 March also marked a crucial meeting at the World Trade Organisation (WTO) where countries convened to discuss a proposal tabled by South Africa and India. The proposal sought to waive intellectual property protections temporarily and to allow for the sharing of technology that aids in the ‘prevention, containment or treatment of COVID-19 … until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity.’

The WTO TRIPS Council, which operates on consensus, failed to muster up the courage to push through the TRIPS waiver when it was first tabled in October 2020.

Unfortunately, the second meeting did not

yield a different result; this is despite increasing pressure from civil society around the globe and the backing of the WHO for the waiver. Notably, the TRIPS waiver was blocked by the US, the European Union, Australia, Japan and the UK. There also exists a denial among these countries that this is necessary – despite a global shortage of vaccines. The UK has even gone as far as describing the TRIPS waiver as ‘an extreme measure to address an unproven problem’. The problem is of course very real and the suggestion is not as extreme as the UK would like us to believe. Article 8 of TRIPS Agreement provides that WTO members ‘may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health … provided that such measures are consistent with the provisions of this Agreement’. Similarly, Article 7 of the TRIPS Agreement provides that in protecting and enforcing intellectual property rights, due consideration must be given to ‘social and economic welfare’.

New pandemic, same old patent problem.

The refusal of pharmaceutical giants (and the wealthy countries who support them) to waive patents is sadly not exclusive to the current pandemic. At the height of the HIV/AIDS epidemic almost two decades ago, the WTO was embroiled in a battle between pharmaceutical companies who had developed HIV treatments, and countries, particularly in Africa, who could not afford those treatments, but who desperately needed them.

Activists in South Africa ignited a global campaign against pharmaceutical companies which aimed to profit at the height of the HIV/AIDS crisis. And even now, activists around the globe have similar demands – that there be no pandemic profiteering and that we prioritise greater access and transparency especially over pricing. The People’s Vaccine Day of Action was a virtual global rally held on 10 March 2021 in support of the recognition of a not-for-profit ‘people’s vaccine’. Statements were delivered by healthcare workers, activists, world leaders, including US senator Bernie Sanders, calling on governments to support the TRIPS waiver. Fatima Hassan, a human rights lawyer and activist

“It is unconscionable that healthy people who live in the Global North have received immunizations before most healthcare workers in the Global South.”

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in South Africa, addressed the rally and argued that these vaccines have largely been developed by public funding, and are therefore public goods. Instead, what we see happening is that pharmaceutical companies have retained the intellectual property rights to these vaccines and have struck bilateral deals with different states offering them vaccines at different prices.

Hassan’s case in point is AstraZeneca, which initially stated that it would provide its vaccines at cost price, has charged South Africa R77.25 per dose in stark contrast to the European Union who has paid a meager R31.78 per dose. Possibly the most shocking of all is that the only reason we know this is due to a Belgian official’s mistakenly tweeted price list! Transparency and accountability are also significant as this comes in the wake of Pfizer’s public statement that it has ‘good evidence’ to hike the price of its vaccine once the pandemic moves into an epidemic.

The Push for a people’s vaccine continues...

At the time of writing, Israel, the United Arab Emirates, the US and the UK are leading the vaccine race in terms of immunizations per 100 people. While this may offer hope to many, this only represents a small fraction of the world’s population. Similarly, South Africa has not started a public vaccination programme; instead, approximately 182 983 healthcare workers have been vaccinated as part of a Johnson & Johnson clinical trial. There are multiple reasons for this: first, South African regulators have stringent requirements for approval and only recently have the AstraZeneca and Pfizer vaccines been approved. The second reason is that South Africa, despite participating in four clinical trials, has had to wait in the vaccine queue behind the countries above who have been leading the vaccine race. Thirdly, there were initial concerns about the effectiveness of the COVID-19 vaccines against the variant N501Y, which was first discovered in South Africa.

Importantly, death is preventable and not inevitable, especially now as multiple vaccines have been developed. It is unconscionable that healthy people who live in the Global North have received immunizations before most healthcare workers in the Global South.

It is clear that the only path out of this pandemic is for us to pressure governments to support the TRIPS waiver so that we can increase global manufacturing capacity and ensure equitable distribution. We must push back against artificial scarcity drummed up by 6

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pharmaceutical manufacturers and supported by wealthier countries hoarding vaccines. In doing so, it is important to see through pharmaceutical companies holding onto IP protections despite contending that there is no capacity elsewhere in the world for manufacturing.

In conclusion, it is evident that the pharmaceutical companies that have developed COVID-19 vaccines are unable to meet the demand for production for the world’s needs. Instead, the sharing of technology and data must be prioritised over patents which will still allow pharmaceutical companies to receive royalties.

We all need access to a vaccine as soon as possible and this will only happen if we fight for a people’s vaccine not a profit vaccine.

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he cost of tertiary education in South Africa is an issue that makes a reprisal at the beginning of each academic year.

Every January, social media is saturated with pleas for financial assistance, crowdfunding posts and outrage that we find ourselves marching for access to education yet again. What makes 2021 more unique is the sheer magnitude of students who would face this challenge due to financial implications the pandemic has had on South African families. This article aims to investigate the increase of university fees during a pandemic. This article does not intend to delve into the matter of historic debt or the fee crisis, but a discussion about tuition fees can never take place without placing it into context.

One of the greatest changes the pandemic has brought about is the move to a socially distanced university experience. Campuses, once a gathering place for thousands, are only willing to accommodate a few hundred in order to stay in line with national standards on gatherings. Most students are now studying through ‘physically distanced methods’ which involve, for the

most part, learning via the internet and self-study.

With less access to amenities and the loss of in-person teaching, the constant question is whether university fees reflect the new style of teaching.

When one is considering the backdrop of the fees crisis, it is important to understand how tertiary education has changed. The pandemic called into question the entire structure of the education sector. The shift to physically-distanced learning has forced a majority of universities to deliver their courses primarily online.

Some universities opted for a combined online and physical teaching approach, which entails online lectures and in-person practicals. Many universities were forced to upgrade their information and technology systems in order to meet the demands of digital learning and teaching. Seasoned educators who were persistent in their rejection of modern teaching methods were forced to train themselves in the use of technology. Some universities which were historically reserved for non-white citizens, simply could not make these changes and opted to pause their academic calendars until some form of in-person learning could ALTUM SONATUR

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take place.

‘“It is evident that tuition pricing is fraught with challenges and can never be done without considering the right to basic education.”’

These changes have a cost implication for universities. Bolstering digital infrastructure was an unprecedented expense and additional provisions had to be made in training the staff to deliver their courses online.

Accessibility for students was a key element, and many universities currently provision data allowances for students who study off-campus, while still maintaining the Wi-Fi infrastructure for the students who occupy residences. Many of the overheads in the running of universities remained the same. Many universities chose not to retrench staff nor to reduce their pay. Additionally, with some universities running limited services, certain facilities such as libraries and research labs have had to remain fully functional, while other services were entirely online. A close example is the Kramer Law building, which remained closed for the greater portion of 2020. So, with the learning experience having changed so drastically, what makes up the cost of tuition in 2021?

In ordinary circumstances, the cost of tuition is split across teaching, learning materials, facilities, staff salaries and other miscellaneous costs. As mentioned before, physically distanced learning is vastly different from in person classes. Online learning now primarily comprises digital content such as narrated slideshows, pre-recorded videos, podcasts, chatrooms, discussion boards and online quizzes. Tests, assignments and examinations for the most part have been held online.

Video conferencing tools such as Zoom and Microsoft teams have become critical for holding meetings and providing additional support, but using these platforms en masse often requires subscription.

These new costs must be taken into consideration, but one must not ignore that many of these services have always been included in the cost of tuition.

Most universities have subscriptions to thousands of research databases and computer applications for each student, in order to allow them to complete their work. One such example is the entire Microsoft Office Suite, which every student has access to during their studies. It is not that these costs are completely new and sudden, but rather that both students and staff are now far more reliant on these.

With the move to online learning, most facilities are 8

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partially closed and require less maintenance due to less use.

It speaks to reason that overheads like electricity and water will be less and that should reflect in tuition costs. One has to ask then how different the mode of learning is to universities that have always functioned entirely through distance.

When discussing the fees crisis, a key discussion point is the #FeesMustFall movement. This movement began in 2015, in response to the planned increases in course fees for 2016. Its core message was clear: the cost of tertiary education made it inaccessible to the poorer portion of school-leavers. This poorer demographic is composed almost entirely of Black, Coloured and Indian persons, descendants of the groups left economically impoverished by the apartheid regime.

The cost of education created a class barrier which was indirectly racist due to the proximity of racial profile to class disparity. The movement also brought attention to the matter of the ‘missing middle’, the category of students who do not qualify for the NFSAS, but cannot afford the cost of tertiary education. Over and above this, the movement criticised government for failing to fulfil the constitutional right to education all South Africans hold. The measures taken in 2015 provided temporary relief, but the cost of fees has continued the trend of annual increases. Due to this, the movement lingers on, the protest reigniting with each registration period. Nearly six years after the movement began, historic debt and fee blocks have returned the matter to national attention.

We now turn to the University of South Africa (UNISA). UNISA is a premier distance education provider in South Africa which services a large number of students who are not in a position to pursue an academic qualification on a full-time basis. The cost of the most expensive full-year module (or course) at UNISA comes in at R3403, where some students can expect to pay an estimate of between R5000 to R15 000 at contact institutions. The massive price

difference may come from the additional resources students studying at a contact institution have, but given the reduction in contact activities, the question that remains is, why is the difference still so high?

The differing rates of infection globally have slowed down the academic year in varying degrees. Some institutions in more heavily affected countries like the United States and the United Kingdom have yet to return to face-to-face learning at all. In East Asia, where the pandemic is largely under control, contact lessons have been the norm for a few months already, affecting how students interpret fee increments. It is important to note here that there is some international consensus among students that university fees have become too high, increasing at rates far greater than inflation.

be done without considering the right to basic education. It is undeniable that universities and the student body they cater to have been forced to adapt to the circumstances. Despite protest, students have applied themselves to the new style of learning and assessment. The flexibility and patience that students have displayed throughout the past year deserves to be met with similar enthusiasm, and I am of the belief that, at the very minimum, universities should have been mandated to freeze tuition costs. Moreover, in light of the changes and hardships that were brought about by the pandemic, institutions should remodel and restructure tuition in efforts to accommodate all students.

The College Board, an organisation which tracks the pricing of higher education in the US, reported that several institutions intended to reduce their tuition fees. This has been brought about partially by the student debt crisis in which the US finds itself, but has been exacerbated by the pandemic’s economic impact.

Locally, the University of the Western Cape, which was established in the 1960s for Coloured persons, was among the earliest to freeze their tuition fees. The initiative taken by UWC was lauded and led to the criticism of institutions such as Wits and UCT, which are resource rich from their proximity to whiteness during their formative years.

We can establish from the above that higher education institutions have taken a varied approach to the annual fee increments. Some have elected to freeze fees, while some have opted to reduce fees. The majority however have applied the annual increment, an act which has been perceived as anti-poor. The backlash received from this has pressured many institutions to allow students to register for their studies with the existing student debt. The late decisions to allow students to register with debt has exposed that institutions do indeed have the capacity to take measures like this but do not. Many institutions acted in the best interest of staff, by ensuring job security and maintaining salaries as they were – a welcome decision. Similar concessions should be made to the student body.

Mere acknowledgement that students are also facing financial distress is insufficient.

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Get to Know a Lecturer: Lauren Kohn

(Constitutional Law and Administrative Law)

What is your background in law and why did you decide to become a lecturer?

Truth be told, after matriculating I didn’t quite know what I wanted to specialise in, though, if I’d been able to go rogue and had had the cash, I would have run off to the Royal Academy of Dramatic Arts in London – I loved performing, but also painting and all things linguistic.

Neither of my parents enjoyed the privilege of a tertiary education and so they didn’t quite know how to advise me at the time. So, I decided to start with the ‘general’ before finding my ‘specific’ niche: Business Science and a UCT-Res-experience it was.

I loved campus life and meeting people from other parts of the country and continent. B.Bus.Sci was a gruelling baptism by fire at tertiary level, though, and I can’t say, “debit – credit-ing” lit my fire. As a result, I perhaps over-compensated. I registered for additional courses like English, Film Study, French 2, and brought the Business Law module forward and this proved seminal. Somehow, I ended up in the Law Library, under a picture of Helen Suzman, paging through old versions of the SALJ and the Law Reports and I have a very clear memory of this moment. I wanted to read, question and solve in this field. Even the recollection of the scent of those books full of knowledge (be it morally good or bad) excited me. In that moment, I decided I would specialise in Law, and once my gut tells me something, I tend to defer to it.

discovered I’d come first or second in almost every subject, and to be honest, I genuinely didn’t expect this – I re-checked the marks several times!

At the end of my LLB, I was head-hunted by a NY Law Firm that started recruiting SA legal scholars, and I had also been offered a scholarship to do my LLM at Duke in the US. I went off for the interview.

I recall feeling my heart wasn’t in it though and I felt a bit burnt-out at the end of my LLB. I also wasn’t yet being driven by a clear question or impulse in terms of Masters-level study. As it happened, a few days after I accepted the job offer – mainly because it felt like something I ought to do – my mom was diagnosed with stage 4 cancer. She and I have always been extremely close, so I did not hesitate to phone the firm in NY and turn these opportunities down. I was by my mom’s side during those first six months of the most gruelling chemo and then took up a TA position in the Department of Private Law, and got roped into tutoring Administrative Law too, after which I went on to do my articles at what was then Webber Wentzel Incorporating Mallinicks Attorneys. It was here that I fell in love with public-law work.

I started the LLB subjects in my 3rd year of B.Bus.Sci and my soul felt happy. I also met my partner (now husband and father of our three children) in Kramer and it was wonderful to enjoy the benefits of mutual support (rather than competition). Speaking of which, I didn’t know I had a gift when it comes to the Law until our Intermediate Year final exam results came out. In my day, you had to go in and look for your student The field in practice is so dynamic, interesting and number and check your marks on a notice board. I relevant and I worked in a wonderful team of ‘bad10

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ass’, yet supportive, female mentors who juggled motherhood and lawyering so effectively. I loved being part of a team and solving real-world problems, and I did so with passion for over four years. However, after many members of the original team moved on to the Bar, the dynamic changed and I felt it was time to attend to that unfinished business of my LLM, now with a clear research focus in mind – which, as it turns out, was ground-breaking at the time – something I remain incredibly proud of.

careful weaving of a tapestry of legal principles. I love marrying my knowledge in different fields of law, as well as my practical and academic experience, and showing students that problem-solving can be fun, inspiring, and thought-provoking. I also feel very strongly about educating people on their humanrights. I’ve started teaching my daughters about their constitutional rights and had to laugh at my 3-year-old the other day after she stripped-down, turned around and wagged her figure at me, vehemently proclaiming, ‘Don’t look at my privacy!’

On conclusion of my LLM I had a cancer scare myself – I should add, at this point, that after seven years of chemo my mom beat non-Hodgkin’s lymphoma! I had a minor surgery and I felt tired.

But I’ve always ‘trusted in the process’, as lame as that may sound. The then-Dean approached me in 2013 to ask if I’d be interested in joining the faculty as a lecturer on contract to help build an academic development programme in Constitutional Law, and teach some Administrative Law. I didn’t see myself as a typical academic; perhaps in some ways I still don’t. But, even at that point, I knew two things with absolute certainty: I love the law and I love to impart it, so I agreed and I soon realised I had found something that truly ignites my spirit and sparks my mind. I love engaging with the youth; I’m an enthusiastic person by nature, and I think one of my strengths is being able to cut through the wool and simplify the complex. My students seemed to value this and this mutual appreciation encouraged me to keep pouring my love and energy into the teachingand-learning endeavour. It has not always been easy but I have continued to write and teach, to think, to hope, to do my best to inspire and encourage others.

And that is why I’m here and this is who I am.

What you wish you had known as a law student?

I wish I’d had better guidance in selecting my finalyear electives. I picked subjects that I thought one ought to do (like Revenue Law – no offence intended) rather than those I was genuinely passionate about and/or intrigued by. The final-year-elective endeavour is a great opportunity to expose yourself to an array of niche fields which you otherwise might not get exposure to. Anyway, no regrets as they say. I do, after all, now know about tax transfer-pricing and how to resolve international conflicts of laws).

In short, do what you love and do you. Keep it simple; stay in your own lane; don’t do post-mortem discussions after exams; ‘attend’ all lectures and take your own notes; read the cases insofar as possible from beginning to end; and do your best to immerse yourself in the knowledge-developing moment You’ve got this – you must believe in yourself.

What kept you sane during the hard lockdown?

My new-born baby boy (who arrived on the third anniversary of my dad’s passing. I literally went into early labour on the day; he was born at 1:49pm and my dad passed away at 1:49pm! He is the sweetest little soul and his big sisters are obsessed with him. It What are you most was hectic – I’m ‘I knew two things with absolute certainty: passionate about not going to lie; regarding the law? and it was tough I love the law and I love to impart it.’

I love its inherent not being able to potential and value (to have family and solve problems, give friends pop around and effect to rights, create food for thought) support etc. But love keeps one as well as its (related) instrumental value as a tool for sane, at the end of the day and there was a lot of that change – for educating, empowering and enriching, to go around. Plus: books, chocolate, and music! at various levels of society and in various ways. I love its silo-shattering potential: that you can help a client, What’s something that your students don’t know student, NGO (or even a court, through your academic about you? writing) by revealing that a problem is generally I love singing and dancing. I actually sing (ad hoc!) multi-faceted and often needs solving through a with a band at a random little spot in Plett when we ALTUM SONATUR

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go on holiday there with the kids. My classic is “I will survive” and yes, we shall survive! And if I can dance the night away somewhere with friends, well that’s enough self-care to keep me going for at least six months!

human-face for the space, despite the distance but the students need to digest the materials and put the work in timeously. They also need to know when and how to ask for help and from whom. I for one can say that I am always here to help insofar as possible.

What’s been the biggest difficulty/adjustment for you in navigating the ‘new normal’?

I’m very much a peoples’-person and in certain ways, a non-conformist, so the distancing (in various senses) has not always been easy, and I’ve not loved the necessity of certain ‘nanny-state-vibes’. The lockdown-experience has shown us first-hand the extent to which government can exercise widereaching executive powers by way of regulation and how sometimes this means human-rights-violations ensue in a way that is arguably unjustified. I also really miss riffing on the law in a more organic way in the classroom with my students – talking to myself in the ether is just not the same!

Who are your role models?

There are the obvious personal heroes: my brave, caring mother and my late father, who lost his own dad at just 8, and started working from a young age to help his mom support his brothers, who turned down scholarships to do Law and Ac.Sci so he could help provide sooner, and who raised me in a way I shall forever be grateful for: always to back myself; stand up for what I believe in, for others, for principles; to avoid the jaws of complacency and comparison; and always to try and maintain a positive attitude irrespective of the adversity life throws at one.

What annoys you about (teaching) law students?

I get a little upset (on their behalf…going ‘mom-vibe’ here) when they don’t attend lectures and/or read the key materials; when they resist independent / critical thinking and learn by rote instead – the ‘magic notes’ (?!). There is no magic in notes unless you’ve made them or at least tweaked / reflected upon them yourself, and when they don’t read the question and answer it directly (Please read the questions and think before you write. We WANT you to do well!).

Do you think the quality of law students being trained during the pandemic will be of the same calibre as previously?

In short, yes, but (hey this is law: there are some caveats) what you put in, you get out. Remote teachingand-learning (T&L) requires a higher degree of selfregulation from students; it also requires lecturers to think more critically and reflectively about their pedagogies, their acceptable boundaries and so on.

Both parties need to put in the effort. Students need to feel they can access their lecturers and aren’t entirely isolated. Yet, it is about balance, as lectures also struggle with, for example, the different demands of working in a home-environment with children around etc. We need always to be mindful of the perspective of ‘the other’ – the person on the other end of the screen, the person trying to study without decent WiFi, the single-mom trying to juggle it all and so on. A culture of kindness is key. I believe we are putting tremendous effort into ensuring a quality T&L-product for our students; in maintaining connection; in ensuring a

Then, on a professional level, the legend that is Kate O’Regan – a much-admired mentor of mine – and, while I never met him personally, I have a great sense of respect and admiration for the late legal giant Pius Langa, former Chief Justice of our Constitutional Court. He was a remarkable jurist and human-being.

Everyone I know who worked with him refers to his humility, inclusivity, kindness and brilliance. It comes through in his legal writing, and sometimes I just want to give him a massive high-five!

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A Year Into COVID-19 : An Overview of the Impact on Human Rights

By Nonkululeko Tshabalala

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arch 2021 marks one year since COVID-19 struck South Africa.

The sudden attack of the pandemic brought not just physical trials, but emotional ones too. We were still trying to figure out how to pronounce “COVID-19”, never mind accepting how it was impacting our daily lives. The atmosphere of concern heightened, as many citizens expressed their worries and frustrations over what was going on around them. While others were still on the verge of accepting what was about to become our new normal, the world was already evolving at the expense of most, if not all, livelihoods. This piece will give an overview of how human rights have been affected in the midst of COVID-19. It will also discuss how the lockdown protocols have overruled our freedom in many aspects in our lives which led to the compromising of human rights to bodily and psychological integrity; to food, water and shelter; to basic education; to healthcare; and to freedom of belief and religion.

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When COVID-19 infection rates were on the rise, President Ramaphosa reacted to the pandemic with great concern, shutting down the country as an act of goodwill in order to protect the citizens of South Africa. Beyond the common occurrences of losing a job or a loved one, human rights violations became increasingly popular during the nationwide lockdown.

During the implementation of the new pandemic protocols, this negligent treatment of human rights resulted in segregation throughout different aspects of the country. The pandemic has placed harsh constraints on the way of living for the average citizen in South Africa. Living in the Southern Township of Johannesburg has exposed me to multiple acts of injustices at the hands of the government, its military and its police service. Police officers were allocated throughout areas in their attempt to enforce cautionary protocols.

This micromanagement included methods of violent intimidation to ensure cooperation of citizens when

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Nonkululeko Tshabalala

it came to wearing their masks and obeying the curfew. the introduction of remote learning. The youth who had depended on the school environment to change As the youth of South Africa, we feared for our lives. their lives for the better had thrown in the towel. In a The trauma of it all made us wonder if this was the country where basic education is considered a luxury second coming of the apartheid era. The fundamental more than a basic right, education became even more right to freedom in South Africa has been revered ever exclusive due to lack of access. since the end of apartheid, but the manner in which the pandemic protocols were executed reminded us of a One of the most notable impacts of the pandemic was time when the right to freedom and all it encompassed the economic decline that has resulted in increased was overlooked in favour of national policy. Our right poverty and debt amongst the working population. to feel safe was once again being overrode through the Fundamental rights to food, water and shelter were abuse of power by law enforcement. affected, as many tried their best to survive with the little they had. Although the government rallied the The most significant protocol during the lockdown was COVD-19 Social Relief of Distress Grant, it did little the importance to ‘stay at home’, in order to keep safe. to curb the growing socio-economic crisis. Inflation When confined in one place without a choice, staying on essential goods meant further strain on an already at home can sometimes feel like captivity: It weighs dire situation. Issues included the government’s heavily on one’s mental health, which has been a kind misallocation of funds due to a lack of due diligence of ‘second plague’ during the lockdown. Many feel as and poor oversight when it came to the distribution of if their right to bodily and psychological integrity has COVID-19 relief. Some barely had access to adequate been compromised by the new way of living under food while doctors were stressing nutritional diets COVID-19 regulations. Adjusting to the new normal for all citizens in order to obtain a strong immune was not a choice and the lack of human interaction system. It was impossible to stress such on the led to negative psychological effects. Having to isolate working population because of their circumstances from loved ones meant crippling loneliness for so which made them prone to contracting COVID-19 many that require human interaction for their mental and needing medical attention. As the number of well-being. Our lives were now defined by technology COVID-19 related deaths and infections rose, the which became the sole medium of communication strain on the already-compromised healthcare system between those who had access to it. across the country became tremendously alarming.

Government-run hospitals were under increased However, technology brought misery among those strain due to severe lack of resources. As a result, the who did not have access to it such as learners basic right to healthcare has been further neglected. whose parents or guardians are average citizens in South Africa. Due to lack of access to technology, The lack of medical resources increased the number of COVID-19 has further entrenched socio-economic daily deaths. Losing a loved one due to COVID-19 was inequality amongst the population, as seen by worsened by the fact that protocols for the deceased thousands of learners who found themselves feeling meant that families were not able to give them an excluded. A lot of learners found themselves on the appropriate send-off that was worthy of their religious dark side of the educational system because they did and cultural beliefs. The right to freedom of belief not have any device that could grant them access to and religion was limited in this sense as well as by the education. Remote learning only served to widen closing of religious sanctuaries and buildings to avoid the already-gaping socio-economic gap even further, public gatherings. destroying hope of a large population of youth whose dreams of self-empowerment were pushed aside by The impact of COVID-19 and its protocols has had a detrimental effect on human rights in South Africa: ‘The fundamental right to freedom from how the rights of citizens were affected by in South Africa has been revered exploring the aspect of ‘liberty’ in terms of not being ever since the end of apartheid, but able to move physically from one place to another and not being able to make decisions freely due to the manner in which the pandemic the implementation of the lockdown protocols and protocols were executed reminded regulations, to the compromising effect of those us of a time when the right to protocols on our physical, mental and emotional wellfreedom and all it encompassed being.

was overlooked in favour of national policy.’

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Students Share: Things We Miss about Kramer: ‘I miss working with people and not self-learning by lectures alone in my room.’

‘Lunchbreaks with people.’

‘The library.’

‘Asking lecturers questions in person.’

‘I miss questions. I know that sounds weird but I miss people asking questions in class.’

‘Complaining about deadlines with friends outside LT1.’

‘I miss making new friends.’

‘The cabbage ball outside LT1.’

‘Sitting on the steps between Kramer and the Ecos building when it’s sunny and having coffee.’

‘I miss all of it.’

‘Cigarettes between lectures with your mates.’

‘Getting to the building really early in the morning and enjoying the freshness of the morning, the quiet before the day began. I really love that little forest area with trees that runs alongside Middle campus. I’d always look out for squirrels on my way through there.’

Four Lessons for Life When this Is All over.

By Delela Ndlela

It has been almost a year since South Africa went into its first COVID-19 lockdown, and in that time, a whole decade’s worth of change has occurred in the way we live. Most of us are completely different from what we used to be. I am, and the world certainly is. The changes COVID-19 brought were momentous, and the devastation heartrending, but it has not changed the fact that there is still a world out there, one for which we are responsible. When all of this is over, or becomes the permanent normal, we will need to slip back into a full rhythm of life. To do that, we will need to remember everything the pandemic has taught us about ourselves and the world around us.

Here are some things the pandemic has shown me: 1) The office is dead; long live the remote workspace!

Here, I’m not talking about the hit sitcom (that would be blasphemy) but the idea of a fixed workspace. The closure of office spaces during lockdown would have rendered most businesses unproductive for huge periods had they not moved online and worked remotely. In fact, according to a study at Harvard University, not only did remote work salvage production, it raised productivity. It makes sense that workers are more productive at home, given that they spend less time travelling and preparing for work, and are thus able to sleep longer. Remote work also saves costs on fuel, reduces traffic and the need for cars, thus making our cities and towns more walkable spaces.

However, remote work is not an unalloyed good.

Cleaners, gardeners, security guards and the other workers whose livelihood depends on people working

in offices, were hard hit by the impact of the transition to remote offices. Further, some companies in the US have taken the success of remote work as an excuse to pay workers less. ‘If you don’t need to travel or live nearby’ goes the argument, ‘we shouldn’t have to pay you as much.’ The final detriment of remote work is the erasure of the work/life division. It is much easier to separate life from work when the two live in separate places, but when the dining table is also a workstation, things tend to bleed into one another.

2) Avoid fox fake news Over the course of 2020, we saw stunningly ridiculous narratives, such as the 5G conspiracy theory and antimask ideology, gain traction. These narratives were spread and started not just in the deepest reaches of the internet, but in tabloids, on social media, and on television networks. Fake news is not only an evil, but it also does harm in the real world. BusinessTech, the largest business news website in South Africa, ALTUM SONATUR

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‘There is something deeply comforting about the fact that we are still the same creatures our ancestors were, and we are not completely lost to the rational, cold world of technology.’ reports that three telecommunications towers were destroyed in KZN in January 2021. It would not be too farfetched to claim that the 5G conspiracy had something to do with it.

The anti-mask narrative is even more dangerous, mostly because it is not making verifiable claims, but rather constructing an incontrovertible world view. The reality is that news is not just information; it is also ideology, and ideology is the lens through which we consider information. Fake news knows this and works to create in its viewers a belief that any information that does not fit neatly into the ideology must be a lie. This is just what right-wing media in the USA has done. There, masks are not a subject of scientific argument, but political objects, markers of the tribe. No doubt, this has led to thousands of preventable deaths. The profitability of fake news has left us exposed to all sorts of dangers.

In 2020, Media24 either shut down, downscaled, or outsourced a whole range of its publications, leading to job losses and a poorer media ecosystem. It is expected that publications that fail to find and keep an audience will eventually fold, but the problem for most publications today is not that they lack a reading public, but a paying one. We are absorbing more and more news and paying for less of it, which is a major problem for journalists.

Visual and performance artists might have it worse, as most are self-employed and depend on commissions and grants for a living, and these did not come in 2020 or 2021. Again, it is not that we are not consuming media, it is just that we, as individuals and society, are not funding the people who make it. This needs to change, fast.

By paying for our news, we provide media houses with security. Once the bills are paid, journalists can do work that society needs, instead of work that advertisers and owners demand. By funding the arts, we ensure that artists and writers can continue to feed our art habit with A-grade art instead of commercial fluff, to be bought and marketed by large corporations.

The reality is that if we do not fund or pay artists, journalists, writers, and researchers, they will either stop doing their work, or rely more on and supply advertisers, corporations, and other kinds of nefarious It seems counterintuitive that people whose job is actors uninterested in good art or journalism. We have to provide news as accurate as possible would profit to make the media we consume possible, or it will die from lies, but we live in an economy that rewards out. entertainment and politics, not journalistic rigour.

There is an incentive for news media to provide us with 4) Computers cannot do everything, and that is a news that keeps us hooked whether by confirming good thing our biases, entertaining us, fooling us into feeling informed, or stirring our paranoia, all of which make Some things cannot be replaced by the internet. us more irrational. The solution to this is to be more Throughout the many stages of lockdown, I have discerning in choosing our news sources, to learn to come to realise that despite technology’s increased note and thus thwart our biases, and perhaps most sophistication, it has not and cannot fulfil or replace our fundamental human needs. We are still fleshy importantly: beings, creatures of the physical world. We still want to be present with each other, and to touch one another.

3) Pay for news; fund the arts We are still creative, random, feeling things and that is In the past year, we have relied on news media, good. There is something deeply comforting about the musicians, actors, novelists, poets, and essayists to fact that we are still the same creatures our ancestors keep us informed of the world around us, or to help were, and we are not completely lost to the rational, us escape it for a little while. However, even as our cold world of technology. There is still the irrational, reliance on artists, journalists and commentators has physical part of human experience that computers have not mastered or made redundant. We are still risen, our support of them has plummeted. human, and we are not done yet.

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Ruxton McClure: COVID, Tele-working and the New Normal

Ruxton McClure is a dispute settlement lawyer in the Legal Affairs Division of the World Trade Organization.

He previously worked for the Appellate Body Secretariat.

Ruxton holds a Juris Doctorate from The Ohio State University Moritz College of Law and an LLM in International Economic Law and Policy from the University of Barcelona. He also graduated from UCT with a Bachelors of Social Science in Philosophy, Politics and Economics and Honours in Political Science. Any views expressed or implied in this article are his alone and are not attributable to or binding upon the WTO Secretariat.

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have adapted to the challenges posed by the COVID pandemic in much the same way that domestic law has done. In March and April 2020, many had hoped that the situation would be resolved within a matter of months, if not weeks. As those hopes faded and eventually died, international lawyers, governments, and non-governmental organisations overwhelmingly adapted their procedures and practices in order to ensure that the show can go on. Challenges continue to arise, and they are addressed, as they have been at the domestic level, through the wonderful world of technology. The show must go on.

hen the Editor invited me to submit an article for this edition of Altum Sonatur, she made the completely natural suggestion that, in light of my position as an international lawyer (I work for the Legal Affairs Division of the World Trade Organization), it would not be out of place to write something with an international flavour. Having chosen to ignore her (almost) completely , and write instead about my perspective on the “New Normal”, I confess to feeling a slight sense of guilt.

Like many domestic courts around the world, a wide number of international fora have embraced the use of technology to host “virtual” hearings, by which parties to international disputes can participate using online platforms. One challenge that is perhaps unique to the practice of international law is that participants in online hearings and meetings can be (and often are) quite literally on opposite sides of the planet. As a consequence, participation in virtual hearings and meetings can entail some temporal acrobatics. Some participants in a virtual hearing may find themselves pleading before the tribunal in the middle of the night, while their counterparts are skipping breakfast, To appease my conscience, I therefore feel compelled and the adjudicators are enjoying the middle of their to segue awkwardly into my main point by detouring working day. through a very brief discussion of the impact of COVID on international law. To put it as succinctly as The most fundamental aspect of the New Normal that possible, the practice of international law appears to I experience on a daily basis, however, is not unique to ALTUM SONATUR

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international law. Specifically, “working from home” has become the New Normal (at least, for those of us who can do so). Office-workers, including lawyers, are the most obvious “beneficiaries” of this development.

employees can now collect their kids from school, pop out to the shop, or take a break when they feel like it. COVID has, rather ironically, demonstrated that society will not collapse simply because office workers aren’t in the office.

‘Since performance can now Of course, in the grand tradition of all dialectics, exclusively be measured by progress in one form is inevitably counterproductive another – with the increased flexibilities born out results, the flexibility for staff to in of COVID, the boundaries between office-workers’ structure their working day in personal and professional lives are being blurred, constant working from home necessarily has an the most productive manner can and impact on social relationships among colleagues. As actually benefit employers, through with most things in life, some semblance of balance is most probably the order of the day. increased productivity.’

The French term for “working from home” is télétravail (literally “tele-working”). In the working world of yesteryear, office-workers were typically expected to be spatially constrained by the four walls of their place of work for a set period of time, each working day. Even in firms employing billable hours, where what truly mattered is not where the lawyers worked but how many hours they worked, the expectation of office presence persisted. The fear of managers was presumably that a lack of oversight, in the form of physical presence at the workplace, could result in “telly working” swiftly replacing “tele-working”.

The New Normal, however, has thrown a COVIDshaped spanner in those works. Under present conditions, managers are obviously unable to assess employees’ work performance based on their attendance at the office and it is increasingly difficult for dodgy colleagues to paper over poor performance through the cunning use of office politics. When everybody is working from home, results and quality of work are essentially the only real benchmark for an employee’s performance.

With this in mind, perhaps the most interesting observation about the New Normal is that, in businesses where staff can work from home, the show has indeed gone on. Businesses employing office-workers have not crumbled en masse simply because their staff are no longer working 9-to-5 in the workplace. A lack of oversight has not led to “telly working” replacing “tele-working”. To the contrary, since performance can now exclusively be measured by results, the flexibility for staff to structure their working day in the most productive manner can actually benefit employers, through increased productivity, notwithstanding that 20

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In any case, as mass vaccinations continue around the globe and societies gradually return to their preCOVID trajectories, one wonders whether we will learn anything useful from this otherwise horrific experience, or whether, like Sisyphus, we will simply be expected to return to our daily commutes. Speaking of which, early estimates of the environmental impact of COVID are unsurprisingly uniform in revealing a significant reduction of carbon dioxide emissions attributable to COVID. Perhaps, just perhaps, a shift in mindsets about the practicalities of regular and consistent working from home will not only increase working conditions for employees, but also contribute, through reduced commuting emissions, towards mitigating the next great crisis. Only time will tell.

Ruxton McClure

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and expropriation is arguably one of the most hotly contested, politicised topics dominating current news cycles. In fact, it has been making headlines since 2017, when Deputy President David Mabuza announced the ANC’s intention to amend section 25 of the Constitution to allow for expropriation without compensation. The post-apartheid Legislature has come a long way in repealing and replacing unfairly discriminatory land laws, but many argue that it has not substantively changed the dire inequality in South Africa.

According to the 2017 Land Audit Report, 72 per cent of farms and agricultural holdings owned by individuals are White-owned, 14 per cent are Coloured-owned, and 4 per cent are Africanowned. The rest is either co-owned, Indianowned, or unaccounted for. It was in response to this context of inequality and the concomitant pressures on the ruling party that the amendment has gained so much traction in South African politics. Speaking of context, it is worth noting the differences between our social welfare system and those of other countries. Owing to the injustices of our past, the Government seeks to redistribute the land and provide previously dispossessed

landowners with real property rights of ownership instead of renters’ rights. Renters’ rights are personal rights that do not hold the same weight as they are enforceable only in contract and will not benefit dispossessed families to the same extent.

Section 25 of the Constitution already provides for the expropriation of property in line with its principles of redistributive justice. This is slow, however, as it is subject to a willing-buyer-willingseller principle, in which negotiations must take place before the transfer of ownership. The new process will be as follows: The municipality may survey a piece of land and begin negotiations with the owner regarding price. If these negotiations fail, it may issue a notice of its intention to expropriate. It is then time for the official notice of expropriation. Ownership of the property will pass without the interference of the courts at a date to be determined by the document.

Section 12(3) of the Bill states the circumstances under which land may be expropriated for nil compensation. It stipulates that circumstances include but are not limited to: When the land is vacant and exists solely to appreciate in value; where it is held by an organ of state and it is not ALTUM SONATUR

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‘Considering the exponential increase in human suffering as a result of the pandemic, it is imperative that the disadvantaged acquire land rights.’

required to perform its main functions; where the land has been abandoned by an owner through their failure to exercise control over it; where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land; and when the property poses health or safety risks to other persons or properties.

to the Executive.

On the other hand, some say that the Bill does not go far enough to transform the racialised, skewed land ownership and resulting inequality in South Africa. Criticisms of the current debate surrounding expropriation note that exclusive coverage has been given to property owners, yet none has been given to the thousands of claimants who have not received land since submitting their claims before 1999. Furthermore, Professor Ruth Hall argues that disputes over compensation drastically slow down the already prolonged process of expropriation and serve mainly to preserve said racialised ownership patterns. There is hope that streamlining the negotiation process will provide speedier outcomes for families still awaiting claims to their rightful land. This is especially important under the contemporary COVID-induced economic uncertainty, disproportionately affecting the disenfranchised.

Other arguments hold that the “hogging” of land by the white minority is a clear ethical issue. Its premise is clear – that the previously dispossessed deserve their land back.

In a statement by the Inter-ministerial Committee on Land Reform, it argued that it is not uncommon to grant governments the power to expropriate land if it is in the public interest. They cited ‘eminent domain’ in the United States of America, ‘land acquisition’ in India and ‘compulsory purchase’ in the United Kingdom, to name a few. This new Bill is set to replace the 1975 Expropriation Act, which has been declared inconsistent with the constitution as it conflicts with the principles of lawful and procedurally fair administrative justice. The use of peremptory language in the bill, (‘may’) when referring to expropriation without compensation, is important as it denotes that nil The shrinking of the economy, with its compensation will not always be necessary in the concomitant unemployment rates, saw a growing aforementioned scenarios; however, it is possible. population of homeless people. Those who were unable to afford their previous living conditions As we live in a democratic country with a healthy were forced onto the streets in search of food commitment to public participation in the and shelter. It is no surprise then, that we saw an law-making process, any article on this subject increase in illegal land occupations last year. The would be incomplete without mentioning public progress of the Expropriation Bill saw another opinion. In the opposition, many fear that this setback while Parliament adjusted to the “new action threatens the security of property rights normal”. Considering the exponential increase for all people, not simply white farm owners. This in human suffering as a result of the pandemic, is because the Bill stipulates that the ‘property’ it is imperative that the disadvantaged acquire it refers to is not limited to land. In fact, the land rights. While there is dissent on whether the Banking Association of South Africa (BASA) has Executive should have expressed concerns that expropriation without the power to expropriate compensation will not only discourage foreign without compensating, investment but threaten food security and fuel there is one thing that we an economic crisis – something which the South can all agree on: This Bill African economy can ill afford after the effects of is integral to the COVIDCOVID-19. While supporting land reform, their induced lived realities of suggestion is to allow for the involvement of the the South African people, Judiciary in such a way that it becomes the “final present and future.

Brad Brinkley arbiter” on the expropriation of land as opposed 22

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Students Share: Online Learning tips ‘Before starting with the work for the day, I always go for a run first.’ ‘ ‘PLAN YOUR DAY IN ADVANCE. I cannot stress enough the importance of having a to do list and schedule.’

‘Break work up between days so you can keep weekends free. Then there’ motivation to get through the content that you have time to do other things on weekends.’

‘Make a to do list with two colours: one colour for urgent matters, another for less urgent.’

‘I find that writing a schedule every morning/ evening works. I estimate how much I’ll get through and break it into the hours in the day. Even if I don’t get through everything I set out to, setting up that kind of structure is a helpful way to meet goals.’

‘Sometimes, you just can’t get through everything.

So work smart, not hard. Read cases and listen to lectures. Sometimes the textbook isn’t absolutely necessary... once you get the feel of a course, you’ll be able to decide what’s what.’

‘A person must work consistently. One of the most frustrating parts of online learning is the fact that you can’t get help whenever you want. You have to wait for your lecturers to reply. Now imagine you don’t work consistently, and come a test or assignment, you have all these questions you want to ask.

And although you do ask them, the answers are either short or non existent. Understandably so, you had the whole year to work and ask the questions and it is almost guaranteed that you are not the only student hassling your lecturer at the last minute. They have lives too and don’t need to accommodate every single person at the last minute. Now consider the converse. You work consistently and in advance. You ask all your questions that you want to. Except this time, your lecturer responds. Not only does he respond, but he responds well. He also appreciates that you are working hard and taking an actual interest in his subject. He will reward you. This is great for your mental health. It makes you feel good. Moreover, when you work consistently, you actually find that you have more free time on your hands. So when the day comes that you feel like you absolutely cannot work, you can take the day off, stress free, because you know that you are ahead of your work and have the support of the lectures if you for whatever reason need their help. ‘ We suspect a lecturer may have penned this but it’s great advice anyway.

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Students Share: Mental Health tips ‘A walk out in the open air always clears my mind. A hot bath and a crime podcast are also great.

Journaling also really helps me’

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‘Whenever I’m feeling really overwhelmed, I stop what I’m doing and make a cup of tea. After I’ve calmed down a bit and finished the “goodness in a cup”, I take a deep breath and start again. It resets me in a way.’

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‘Exercise is great.’

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‘So this sounds bizarre but sometimes if I really need to relax, I sit in my cupboard for a few minutes. It’s quiet, cool and dark, and it makes me feel better.’

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‘If I’m feeling really stressed about law school, I find that venting to a law friend does wonders.

Sometimes complaining really helps even if nothing changes.’

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‘Making time to do things I enjoy, like hobbies and talking to friends.’

‘Cleaning and also washing dishes. It’s soothing.’

‘I got very into journaling.’

‘Decluttering.’

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‘Baking relaxes me. I try something new every once in a while. Banana bread got old real fast.’

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‘Sleeping a lot.’

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‘Trying to make new things or do new things to bring some sort of newness into life.’

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ore than a year after the unfortunate consumption of either a bat, a pangolin, or a number of other potential animals, many ‘fellow South Africans’ (yes, that was on purpose) are now painfully acquainted with the Disaster Management Act (‘DMA’) and its regulations which have governed our lives since March last year.

While COVID-19 certainly constitutes a disaster, many felt that the regulations imposed under heavy lockdown, and even after, were too limiting on the rights protected in the Constitution. Indeed, various parties approached the country’s courts in efforts to get the lockdown regulations declared unconstitutional and invalid. So, how did the Judiciary do? It is time to weigh in on how the courts dealt with some of the regulation-related matters that they heard over the last year.

The Judiciary walks a fine line between imposing a check on other branches of government and encroaching on the Legislature or Executive’s lawmaking/overseeing roles. This balance is especially important to get right in South Africa, where – predemocracy– courts often gave decisions in line with the Executive’s policies, with judges invariably penning a line or two about how the possibility of a more just outcome lay within the Legislature’s court instead of, ironically, within the Judiciary’s own. And, to a degree, that was and is true. Now that the people

By Jaime Uranovsky of South Africa have the Constitution as a mechanism (on paper anyway) to protect rights for all, one might ask whether judicial activism is still necessary or even possible today. This is where lockdown matters become relevant. In this unprecedented time, when the Government is restricting our actions more than they usually do, courts once again need to find the right middle ground. This piece is by no means a comprehensive summary of all lockdown related matters brought before the courts. Only three cases are considered here in brief.

De Beer and Others v Minister of Cooperative Governance and Traditional Affairs.

In June last year, the Pretoria High Court declared the Level 4 lockdown regulations (save for a few) in terms of section 27(2) of the DMA invalid. The declaration of invalidity was suspended for two weeks, to allow the Minister to make the necessary amendments.

While some saw this as a victory indicating that the Government had breached the dictates of the Constitution, the judgment has been severely criticised. Furthermore, commentators have argued that the judgment would not survive on appeal.

The matter called for the court to conduct a rationality review on the lockdown regulations of the time.

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of the judgment difficult to take seriously. Instead of testing lockdown regulations by asking whether each regulation was rationally connected to the purpose for which the rule was created, it tested different regulations against each other. For example, it stated that it was irrational for public transport such as buses and taxis to be operating while beauty salons were banned from conducting business. This

ban had already been lifted.

BATSA contended that the decision to prohibit tobacco did not pass the necessity test and that it violated the constitutional rights to dignity, privacy, physical integrity, and being able to choose one’s trade.

The court agreed that the limitation of these rights was not justified in

‘The way in which our courts balance the freedoms of the people and the actions of the other organs of state constitutes a statement in itself: that reason and justification must continue to triumph’. is not how rationality review is conducted. At other times, the judgment arbitrarily referred to some regulations as rational without testing them at all. At yet other times, the court conflated rationality with reasonableness.

Since this judgment dealt with the challenging of regulations (as administrative action), the matter did not need to be confirmed by the Constitutional Court in the way that the invalidation of a piece of primary legislation would be. Commentators such as Jason Manyenyeni argue that each regulation should have been individually tested against the Constitution.

Unfortunately, some regulations were not even mentioned in the judgment. Indeed, how then, could almost all of them be declared invalid?

This judgment showcases a missed opportunity for the Judiciary to have considered with more precision and thoroughness, whether each lockdown regulation could pass constitutional muster.

British American Tobacco South Africa (Pty) Ltd and Others v Minister of Co-Operative Governance and Traditional Affairs and Others.

In December 2020, the Western Cape High Court handed down a judgment ruling that the five-month prohibition on tobacco sales earlier in the year was unnecessary and inconsistent with the Constitution.

The application was brought by one of the largest tobacco trading companies in the country, British American Tobacco South Africa (‘BATSA’) as well as by various other companies, groups, and individuals.

While the matter was argued in August, the court reserved judgment until December, by which time the 26

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accordance with section 36. Interestingly, the Minister will be appealing the matter to the Supreme Court of Appeal (‘SCA’) on the grounds that the Western Cape High Court was bound by North Gauteng High Court’s (‘NGHC’) decision last year, which held that the ban was rational.

In the NGHC matter, the Fair Trade Independent Tobacco Association unsuccessfully argued that the prohibition on tobacco was unconstitutional.

How this controversial dispute ends remains to be seen but one thing is for sure: all smokers will have their eyes firmly on the SCA when it makes its decision.

Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others.

More recently, in January this year, the SCA dismissed a matter on appeal from the Western Cape High Court. In the court a quo, a group of individuals brought an application last year to have the lockdown Level 4 regulations declared unconstitutional. They alleged that the regulations breached their rights under the Constitution, that the formation of the National Coronavirus Command Council (‘NCCC’) was procedurally unlawful, and that the public participation element of the Level 4 regulations was insufficient and therefore led to procedural unfairness. The high court judgement, handed down in June 2020, dismissed the application in its entirety.

The appellants were marginally more successful

Jaime Uranovsky

at the SCA, where the court dismissed the appeal with the exception of two regulations which were declared invalid. These were the regulations allowing for only certain exercise during a three-hour window within a five-kilometre radius of one’s residence, as well as the regulation banning the selling of over-the-counter hot foods. These regulations were held to be irrational.

The SCA confirmed that the establishment of the NCCC was in fact procedurally fair and that the regulations themselves (save for the two mentioned above) were rational in that they served the purpose set out in the DMA – to create a comprehensive disaster management policy. Moreover, it was held that the process for public participation met the dictates of procedural fairness as the public was given the opportunity to comment. Indeed, some comments were even accepted after the deadline. Furthermore, it held that, while certain rights have been limited and breached by the regulations, this was justified in terms of the limitations clause contained in section 36 of the Constitution.

This judgment, in applying the relevant legal principles correctly, struck the right balance: it evaluated the actions of the Executive in trying to protect the public while invalidating the regulations that veered on ridiculous. These kinds of well-reasoned judgments are what one wants to see from this arm of the government.

As the Judiciary continues to hear matters in these extraordinary times, we must continue to pay close attention to courts’ judgments. Indeed, much of the Judiciary’s legitimacy stems from the court of public opinion. In an age of fake news, conspiracy theories and a culture of recalcitrance when it comes to accepting science and logic, the way in which our courts balance the freedoms of the people and the actions of the other organs of state constitutes a statement in itself: that reason and justification must continue to triumph.

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Touchable

By Fara V

There is something about the human spirit, that makes us feel untouchable.

“It will never happen to us,” we feel but dare not say, lest we are subjected to the mockery of the minds who know this truly is not the case.

There is something that told us, plagues are of the past.

Pandemics continuing on their fickle pattern could never our immunity outlast And when an angered Mother Nature chose to strike her first blow on the battlefields of Wuhan little did we know little could we prepare for humanity to crumble and bring millions to despair.

It seemed to us so foreign, entirely unforeseen.

As though it had not happened since the dawn of time 1331, 1816 And now, solemnly, 2019 As city by city reached their peak “surrender” did they plea.

The numbers dropped then rose once more A new world for we Society now, As seen plenty before, Transformed beyond return.

Wiser now, and more prepared We will survive whatevermore

K KRAMER R O S S W O R D Down 1. When winding up an intestate estate, when there is a surviving spouse as well as descendants, the former gets whichever is larger: the ministerial amount specified in the Government Gazette or the -? (6; 7) 2. The Three Musketeers: SAFLII, Jutastat, and ? (5; 5) 3. Advocate Alton Samuels’ alma mater (He shared lots of stories). (12; 10) 5. This case held that the male primogeniture rule was inconsistent with the Constitution. (3) 6. To be criminally liable, the following must be present: voluntary conduct, causation, fault, unlawfulness, and ? (8) 8. Every UCT law student’s favourite Instagram page. (6; 8) 10. ‘Among other things’ in Latin. (5; 4) 12. Last year, before the pandemic, Prof Fagan had this stolen (We only know this because he told us in class). (9) 14. The test in International Law that comes from a diplomatic crisis that escalated way too quickly involving a ship that got set alight near Niagara Falls in 1837. (8; 4) 17. Famously said, ‘What, like it’s hard?’ (4; 5) 20. This mobile-telephonic innovation landed Vodacom in hot water at the Con Court. (6; 4; 2) 21. Our favourite tea-drinking judge and jurisprudence lecturer who treated us to Zoom lectures last year. (6; 5) 22. The right that Pierre de Vos mentions the most frequently in Con Law. (7) 23. In the ‘before time’, we weren’t allowed these in Fagan’s class. (7) 25. Penned the PE Municipality v Various Occupiers Judgment. (5; 5)

Across 4. CDH, ENS, Bowmans, Werksmans, Webber Wentzel. (3; 3; 4) 7. The UCT Law Faculty’s most active Instagrammer (and we love her for it). (6; 4) 9. The other kind of contractual damages (not general). Hint: Robin Cupido made us feel this way in her PowerPoints. <3 (6) 11. The default number of sugars the coffee machine outside LT1 adds to your beverage unless you remember to reset the number. (5) 12. What 2021 final years thought we escaped in 2020 but are being forced to do this year. (4) 13. Judicial creatures of statute. (11; 6) 15. The titles of Anton Fagan’s long pieces of descriptive prose, sent to Delict students via Vula announcements during lockdown level 5, last year. (8) 16. The two words that Robin Evans-Jones etched into our brains forever during Syscon lectures. (2; 3) 18. Criminal law lecturer; did us proud by appearing on one of the latest Oscar Pistorius documentaries. (5; 6) 19. The Con Court case that saw the end of the death penalty in South Africa. (1; 1; 10) 24. Fancy speak for a ‘reasonable person’. (8; 13) 26. The beloved food stand that provided us with cabbage balls and other vegan goodness five days a week outside LT1. (6; 5; 7)

Prima Facie Fun Riddles:

Sharpen your reasoning skills by working out these brainteasers!

Solutions on page 36.

1.

Feed me and I live; give me a drink and I die.

What am I?

2.

I am a box that holds keys without locks; yet, I can unlock your soul. What am I?

3.

I am the beginning of sorrow and the end of sickness. You cannot express happiness without me yet I am in the midst of crossness.

I am always in risk yet never in danger. You may find me in the sun but I am never out of darkness. What am I?

4.

I have cities but no houses, forests but no trees, and water but no fish. What am I?

The Adventures of Lawyer-Cat: In February this year, a courtroom session taking place via Zoom turned cat-astrophic when county attorney, Rod Ponton of Texas, suddenly morphed into an adorable feline on account of a Zoom filter. Thank goodness the call was being recorded, so that the whole world is now able to rewatch the moment again and again where Rod or ‘Lawyer-Cat’ as he has been dubbed by the internet, exclaims, ‘I am not a cat.’ The Judge then responds, ‘I can see that’, which is proof that judges are capable of lying because Rod is most certainly a cat.

If you have not yet seen the video, we recommend it - if only because the legal industry suddenly becomes so much more exciting at the prospect of having a lawyer-cat instead of a regular human attorney.

During an interview with the BBC, Rod stated, ‘I did not know that Zoom could turn me into a cat.’

However, many believe that a larger conspiracy is at play and that the whole saga is really a coverup so that nobody finds out that a cat named Rod is disguising himself as a human and practising law. While we do not usually back conspiracies, this is one we can certainly get behind.

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What Kind Of Lawyer Will You Be? 1. Which extracurricular activity are you most drawn to? a. Amnesty International b. Moot society c. UCT Entrepreneurs Society d. TedxUCT e. Mentoring

2. What was your favourite subject in matric? a. History b. English c. Business Studies d. Art or Graphic Design e. Life Orientation

3. What would you consider to be your best skill or attribute? a. Awareness of societal issues b. Advocacy c. Entrepreneurial d. Creativity e. Interpersonal skills

4. As a practising lawyer what sort of work do you think you would find most appealing? a. Working on a diverse range of cases

5. What’s your favourite tv show? a. The Daily Show b. Suits c. Snowfall d. The Tiger King e. Chernobyl

6. Who’s your role model? a. Jacinda Arden b. Judge Judy c. Warren Buffet d. Kanye West e. Tembeka Ngcukaitobi

7. What’s your main motivation for your career? a. Helping others b. Doing what you love c. Money d. Being able to fund your creative endeavours e. Fighting for justice

8. The law is for: a. Protecting everyone equally b. Protecting the innocent. c. Protecting profit. d. Protecting an idea. e. Governing society.

which focus on governmental and public law. b. Working on high profile projects with high profile clients who are likely to be in the public eye. c. Working high value projects with high profile clients. d. Working alone on many different small value matters at the same time with a diverse client base. e. Working on specific social justice focused issues within communities.

9. What would be your ideal first date? a. Discussing philosophy in a Mostly A’s café.

You’re on your way to becoming a human rights lawyer! You’ve already started b. Solving a murder mystery. doing social justice work in your circles and are looking to expand. You believe c. A fancy dinner. in helping people who can’t fight for themselves and your motivation will drive d. A sip-and-paint’. you to take on tough cases in the hopes of making the world a better place. e. Volunteering in your community.

Mostly B’s You want to become an Advocate; presenting cases in court is all you’ve ever dreamt of and you can’t wait to wear the robes and address a judge in court. Your motivation will be being the best of the best in a highly competitive environment and enforcing justice and the rule of law, kind of like a Power Ranger.

Mostly C’s You’re going to go into Criminal Law or Corporate law or Tax? Basically, anywhere the money resides at the moment.

Mostly D’s You might end up working in Family Law, or owning a café in Observatory, or building a start-up to finance trips to the moon. The sky’s the limit with you and law is only the beginning of the ways you will go on to express your boundless creativity.

Mostly E’s You’ll probably end up at a legal-aid clinic or at a boutique law firm. Your interpersonal skills make you perfect for the task of helping to provide access to justice for those who need it most and developing great interpersonal relationships with your clients.

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HUMANS OF KRAMER 1. What has been one of the challenges you’ve experienced in adjusting to ‘the new normal’ and how have you navigated it?

2. Something interesting/fun that you achieved over the last year?

3. ‘Being a law student during a pandemic means...’

Tayla Pinto LLM Student

1. My biggest challenge has been being away from my support network at Kramer. The staff and students were a great source of help and encouragement, especially those in the library. I also struggled with being alone in the same space all day. Calling friends while doing mundane tasks, making small changes in my room, and getting out when possible have been my go-to solutions.

2. I finished my LLB (in the designated 4 years). But it was not fun by any stretch of the imagination.

3. ‘Being a law student during a pandemic means… crying through the pain.”

Emma Legg I am a 3rd year, doing a combined BA Stream. My majors are Law and Media and Writing.

1. When I was first adjusting to the ‘new normal’, I found that not being able to see my friends from UCT, as I previously had, took a massive toll. After having done online for a year now, I’ve found ways to incorporate seeing my friends into my “online schedule”, which in a way, has made us all appreciate each other more than ever before.

2. As a result of lockdown and spending so much time at home, I’ve thankfully been able to improve on my cooking skills.

3. “Being a law student during a pandemic means ... being able to work comfortably in bed.”

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Meet the Altum

Jaime Uranovsky Editor-in-Chief

Adenike Fapohunda Deputy Editor-in-Chief

Agnes Sawari Senior Editor

Attiya Omarjee Senior Editor

Rahul Maharaj Senior Editor

Sandele Hlangadala Senior Editor

Brad Brinkley Senior Editor, Secretary-General

Jered Shorkend Treasurer

Eamonn Naidoo Photographer

Sonatur Committee

ACKNOWLEDGEMENTS:

All photographs (save for headshots and Kramer landscapes) taken by Eamonn Naidoo.

Graphic design by Cassian Robbertze.

Thank you to Lauren Kohn, Ruxton McClure, all Altum Sonatur committee members, and all student contributors for giving so generously of their time, insight, talent and dedication. A huge thank you must also go to Cassian Robbertze for designing our magazine - thank you, Cassian!

A note for fellow grammar perfectionists: Even though we use the UK system for grammar, we are aware that we used ‘World Trade Organization’ as opposed to ‘World Trade Organisation’. This is because we were told by our contributor from the WTO that the organisation’s official spelling is in fact ‘organization’ - we just wanted to explain our inconsistency :) We hope that you enjoyed our first edition of 2021!

Answers to Riddles: Fire A piano The letter ‘s’ A map Answers to the Kramer Krossword: Child’s Portion

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ALTUM SONATUR

LexisNexis Stellenbosch University The Big Five Bhe Capacity Lauren Kohn Kramer Kollages Special Inter alia

Three Moot Magistrate Courts Caroline Test Epistles In rem Elle Woods Kelly Phelps S v Makwanyane

Please Call Me Dennis Davis Dignity Laptops Diligens paterfamilias Albie Sachs Higher Taste Cuisine