pilg 2015 panel descriptions (as of 21...
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PUBLIC INTEREST LAW GATHERING 2015 FULL PANEL DESCRIPTIONS
Plenary Session: #Trending in Public Interest Law: “Civil Society Under Threat -‐ -‐ Is
Democratic Space Closing Down?”
Panellists:
• Kaajal Ramjathan-‐Keogh, Southern Africa Litigation Centre (SALC)
• Nomzamo Zondo, Socio-‐Economic Rights Initiative (SERI)
• Dale McKinley, Independent Writer, Researcher and Gauteng Coordinator of the
Right2Know Campaign
• Respondent, Mandeep Tiwana, CIVICUS
• Facilitator: Mark Heywood, Section27
1. The Public Interest Legal Services Sector: Perspectives on Impact, Collaboration and
Funding for Real Social Change:
In 2015, the Socio-‐Economic Rights Institute of South Africa (SERI) released the results of a
study commissioned by the RAITH Foundation and the Ford Foundation on public interest
legal services in South Africa. This panel will present key findings contained in the report, and
further discuss challenges to the provision of public interest legal services in South Africa and
from an international perspective. Panelists will reflect on how organisations can measure
and maximize their impact. Further, panelists will offer perspectives on how litigating non-‐
governmental organisations (NGOs) might better coordinate with grassroots groups,
community-‐based advice offices, and regional and international litigation initiatives. Finally,
the workshop will consider the role of the donor community, and how to fund public interest
legal services that strengthen the sector, increase access to justice, and promote
transformative change in the legal profession.
A pamphlet summarizing the recommendations and the final report will be launched and
disseminated at the panel.
Panellists:
• Lauren Royston, SERI
• Dugan Fraser, The Raith Foundation
• Daniella Ikawa, ESCR-‐Net
• Seth Mbuyiswa Mnguni, Association of Community-‐based Advice Offices of SA
• Facilitator: Bhavna Ramji, SERI
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2. Recent Strategic Litigation on the Promotion of Access to Information Act, 2000
This panel will focus on the implications of recent strategic litigation for access to
information broadly and the Promotion of Access to Information Act (PAIA) specifically. It
will stress the importance of proper record keeping in the management of PAIA requests
and the role of the National Archives in managing government-‐held information and
proposals for enabling a meaningful role for the National Archives in PAIA requests to the
State. Moreover, the panel discussion will speak to successes and failures of alternation
dispute resolution mechanisms and knowing when to employ them. Cases to be discussed
include the Vaal Environmental Justice Alliance (VEJA) v Arcelormittal South Africa;
Right2Know Campaign and SAHA v Minister of Police; and Mail and Guardian Centre for
Investigative Journalism v Minister of Public Works.
• Toerien van Wyk, South African History Archive (SAHA)
• Tracey Davies, Centre for Environmental Rights (CER)
• Karabo Rajuili, M&G Centre for Investigative Journalism (amaBhungane)
• Facilitator: Lisa Chamberlain, Centre for Applied Legal Studies (CALS)
3. Sentencing Reform: Exploring the Shifts in Sentencing Patterns and the Impact of
Minimum Mandatory Sentencing Legislation
The profile of South African correctional centres has changed dramatically over the last 20
years. There are more inmates serving sentences of life imprisonment and sentences longer
than 15 years than ever before. The mandatory minimum sentencing legislation of 1997,
intended to be a temporary measure, has caused the shift in sentencing patterns. This panel
discussion will explore the nature of the shifts in sentencing patterns as well as revisit past
efforts to revise the 1997 legislation.
Panellists:
• Prof Stephan Terblanche, UNISA Law School
• Kristen Petersen, Community Law Centre, Univ. of the Western Cape
• Clare Ballard, Lawyers for Human Rights, Lawyers for Human Rights (LHR)
• Facilitator: Jacob van Garderen, LHR
4. Respecting and Protecting the Right to Freedom of Expression: Lessons in Using the Courts
to Protect Human Rights Defenders in the Southern Africa Region:
Freedom of expression and the right to information are essential in a functioning
democracy. Unfortunately both are under severe threat in southern Africa. In Swaziland
journalists, lawyers, independent minded judges, trade union officials and parliamentarians
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were threatened with violence, arrest, prosecution or other forms of pressure as a
consequence of their advocacy for human rights, respect for the rule of law or for political
reforms. The rule of law, access to effective remedies and protection of human rights
continued to deteriorate as a consequence of the further undermining of judicial
independence. In Swaziland hhuman rights lawyer, Thulani Maseko, and magazine editor,
Bheki Makhubu, were arrested and charged with contempt of court. Maseko and Makhubu
had both written articles in Makhubu’s magazine, The Nation, in which they criticised the
Swazi judiciary and the Chief Justice. The warrant used to arrest them, issued by Swaziland’s
Chief Justice Michael Ramodibedi, subverted the normal legal process. Despite various
applications for their release and the recusal of the presiding judge, in July 2014 Judge
Mpendulo Simelane found the pair guilty of contempt and sentenced them to a two-‐year jail
term without the option of a fine.
Later that year Mario Masuku and Maxwell Dlamini were arrested after participating in a
May Day gathering. Masuku spoke at the gathering and Dlamini participated in the singing of
songs, and both used the gathering to draw attention to various challenges facing Swaziland.
They faced two charges of contravening the Suppression of Terrorism Act, and two charges
of contravening the Sedition and Subversive Activities Act as a result of the statements they
had made.
The human rights situation in Zambia continued to decline under the late President Sata’s
government. Fundamental freedoms came under attack, with political opponents, civil
society and sexual minorities being systematically targeted. In February, a Lusaka court
acquitted human rights activist Paul Kasonkomona. He had been charged in April 2013 with
“soliciting for immoral purposes” after he urged the government to recognize the rights of
lesbian, gay, bisexual, transgender and intersex people as part of a comprehensive fight
against HIV/AIDS during a television debate. The court ruled that the state had failed to
prove its case.
In Zimbabwe the executive continued to enforce old unconstitutional laws including those
limiting the rights to freedoms of expression, association and assembly. The Zimbabwe
Republic Police continued to use brutal force and torture against anti-‐Mugabe protesters
and human rights defenders.
Panel description
The focus of this panel will be on the right to freedom of expression in the southern Africa
region with a particular focus on Swaziland, Zambia and Zimbabwe. Panellists are individuals
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who have been directly affected by the absence of protection for persons exercising their
right to freedom of expression.
The panel will evaluate the role of the courts and raise challenges about courts that are
unable to afford real protection to human rights defenders including activists, lawyers,
journalists and artists. Panellists will reflect on situations where courts are weak and
ineffective and incapable of operating as protectors of human rights or impartial enforcers
of the law. The discussions will also reflect on the challenges in working with these courts
and will include case studies that illustrate the difference between the interpretation of the
law and how this influences the outcome of cases that challenge the right to freedom of
expression.
Panellists:
• Sipho Gumedze, Human Rights Activist, Lawyers for Human Rights, Swaziland
• Paul Kasonkomona, Zambian Human Rights Activist
• Owen Maseko, Zimbabwean Artist and Activist
• Facilitator: Caroline James, Southern Africa Litigation Centre (SALC)
5. The Impact of the Dladla Judgment on the Provision of Temporary Alternative
Accommodation and Interdisciplinary Strategies for Lawyers Working in the Johannesburg
Inner City:
How have urban municipalities discharged their constitutional obligation to provide
“temporary” alternative accommodation in the wake of the Dladla and Blue Moonlight
judgments? And once provided, what are the experiences of individuals living in shelters?
This panel will consider the range of psychosocial issues that evictees face while in
temporary emergency accommodation, and how litigating NGOs, working with social
workers, can employ an interdisciplinary approach to serve their clients. Drawing from
examples of shelter provision and organising in the United States, panelists will reflect on
how collaboration can better address complex psychosocial issues, and how social workers
can be instrumental in strengthening grassroots efforts to organize for improved conditions
and for greater access to affordable housing.
Panelists:
• Nomzamo Zondo, SERI
• Princess Magopane, SERI with Zoe Jarvis, Department of Social Work, Wits
• Zeenat Sujee, Centre for Applied Legal Studies (CALS)
• Michael Leonard, SERI
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• Facilitator: Jackie Dugard, SERI and the University of the Witwatersrand
6. Conflicts of Interest
In 2009 a firm in Cape Town represented a group of backyard shack-‐dwellers in a case
against the City of Cape Town because they did not have access to formal housing. The
backyarders secured an urgent interdict and compelled the City to return all building
materials. However, the City defied the interdict but also ‘punished’ the firm by terminating
all contracts with the firm. As a direct result of assisting these poor people, the City ended
its professional relationship with this particular firm, stating that the firm acted for a third
party against the City, which necessitated them in terminating their mandate, due to a
conflict of interest.
To illustrate the working of this principle, while practically looking at the implications of
extending this principle to other entities (beyond the legal industry), the Netcare case will be
discussed.
In this case, the Applicant, Netcare Hospitals (Pty) Ltd sought interim relief from the Court,
aimed at interdicting the first respondent, KPMG Services (PTY) Ltd from acting as a service
provider for the Competition Commission in the course of a market inquiry into private
health care. The Commission initiated this enquiry to obtain information about health care
prices. Netcare argued that KMPG would be conflicted from providing this information to
the Commission, while being employed by Netcare.
The Commission argued that the relief sought by Netcare, if granted, would adversely
impact on the ability of the Commission to discharge its constitutional and statutory
mandate in relation to the market inquiry.
The court dismissed the application, finding that the only remedy available to Netcare was
the enforcement of its contractual claim against KPMG (to protect its confidential
information in the event of breach).
The panel will discuss the argument by Netcare, (which extended this concept to non-‐
lawyers) and the impact this will have on public interest matters and organisations.
Panellists:
• Moray Hathorn, Webber Wentzel
• Donna Gewer, Bowman Gilfillan
• Facilitator: Sher-‐Muhammad Khan, Section27
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Certain questions arise. How do firms deal with this issue internally? Are there ways of
avoiding it? For instance can firewalls not be set up in terms of which lawyers that want to
take on matters in a situation where the firm is conflicted are permitted to work on the
matter because confidentiality barriers are adhered to? Why do law firms not attempt these
strategies?
7. Pitching at the Right Level? Strategic Litigation and Transnational Fora:
This panel focuses on themes related to strategising and taking advantage of different levels
of jurisdictions and forums in social change litigation. When should one litigate domestically
and when internationally and when somewhere in between? And where? With the
proliferation of courts, commissions, and formal processes at the international level,
national level courts are clearly no longer the sole option.
These themes will be addressed from three specific topic areas: litigation defending the
rights of the Roma in Europe; socioeconomic rights campaigns and litigation strategies in
international networks; and the efforts to save and/or revive the South African Development
Community (SADC) Tribunal. Organisations participating in this panel include the Open
Society Justice Initiative, the SADC Lawyers Association, the Law Society of South Africa, and
the International Network for Economic, Social and Cultural Rights.
Panellists:
• Max Boqwana, National Association of Democratic Lawyers (NADEL) and the Law
Society of South Africa (LSSA)
• Jim Goldston, Open Society Justice Initiative
• Daniela Ikawa, ESCR-‐Net
• Emilia Siwingwa, SADC Lawyers Association
• Facilitator: Prof Jonathan Klaaren, University of the Witwatersrand
8. Social Assistance Advocacy & Litigation to Make Human Rights Real: Insights and Lessons
from the Hands Off Our Grants Campaign
The March 2015 Special Assignment broadcast of “Grant Grabs” highlighted the impact of
unlawful, sometimes fraudulent and immoral debit deductions taken from social grants. A
raft of deductions of airtime, loans, electricity and typologies such as “water” deductions
began shortly after the implementation of the CPS-‐SASSA tender, which was declared invalid
and unconstitutional by the Constitutional Court in November 2013.
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There has been a suspension on the declaration of invalidity of this contract. A new tender
has been issued by SASSA, but these deductions, in contravention of the Social Assistance
Act, continue unabated, and have caused great hardship for state old age grant
beneficiaries, the disabled and recipients of child support grants, threatening to erode the
gains made by the State.
Through many advocacy initiatives, participation in a Ministerial Task Team and litigation,
the Black Sash and CBO/NGO partners have worked hard to try to stop these deductions. In
March 2015, the Black Sash joined as amicus curiae in the matter between Allpay
Consolidated Investment Holdings (Pty) Ltd and others vs the South African Social Security
Agency (SASSA), Cash Paymaster Services (Pty) and others Case CCT 48/13 [2013]. This
intervention is aimed to help ensure that the new tender is awarded soon and implemented
in the interests of grant beneficiaries. The Black Sash and partners were pleased when the
Constitutional Court ruled to finalise and implement the new tender without delay – and
that it provided firm deadlines for a new Request for Proposals to be issued, the dates by
which bids need to be submitted and by when the tender needs to be awarded.
Against this background, this panel will explore how advocacy and litigation can be used as
parallel strategies to protect and advance socio-‐economic rights, prevent the dilution of
these rights, especially when companies exercise an organ of state function, expose the
extractive practice of profiteering financial, credit and insurance companies, and bring a
swift end to these unlawful and fraudulent deductions.
Panellists:
• Lynette Maart, Black Sash
• Elroy Paulus, Black Sash
• Leanne Govindsamy, Corruption Watch
• Advocate Mohamed Shafie Ameermia, SA Human Rights Commission
• Facilitator: Lynette Maart
9. Watching Briefs
This panel will consider the role an advocate or attorney can play as a watching brief lawyer
(WBL) in criminal matters. The low prosecution and conviction rate in South Africa is cause
for concern. Perpetrators of violent crimes against women and children, foreign nationals,
torture victims and others, frequently are not prosecuted, nor are their crimes investigated.
This panel will explore the role the WBL can play from the time that a crime is reported until
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the alleged perpetrator’s trial is over. The watching brief attorney/advocate acts on behalf
of the complainant.
One of the questions to be explored will consider the relationship between the complainant
and the WBL. What is the nature of the relationship? What is the nature of this
appointment? Once the WLB is appointed (assuming a formal appointment is necessary), he
or she starts out by working with the investigating officer in the SAPS to ensure that
sufficient information and evidence is gathered to open a case.
At this stage the role of the WBL is to ensure that the police docket contains relevant
information such as witness statements, forensic evidence, etc. A question the panel will
explore is whether the WBL has the right to see the police docket and what can be done if
the police refuse to allow access. Without sight of the police docket it is difficult for a WBL to
establish whether there is sufficient evidence for the case to succeed and whether it is being
investigated properly.
The police docket is sent to the control prosecutor in the relevant court. Here various issues
and questions arise which the panel will address. For instance, how does one ensure that a
case moves from a Regional Court to the High Court? What can be done to ensure that the
prosecutor who is allocated the case prosecutes the matter? If the prosecutor refuses to
prosecute, what recourse is there? Can a WBL take the prosecutor on review? What
procedure must be followed?
Regarding both the bail hearing and trial, the question that has to be researched and looked
at is whether the WBL can attend court and what role can he or she play in the proceedings.
Does he or she does have speaking rights or not? Can he or she advise the prosecutor during
proceedings? What happens if the complainant is a child? Would this exclude a WBL from
the proceedings?
What is the role of the WBL specifically in cases involving refugees, children, sexual assault,
domestic violence and torture? The panellists will investigate some of the questions raised
above and will look at the role that attorneys and advocates can play in keeping watch over
police investigations and the prosecution of these cases and the limitations and challenges
that WBLs face.
Panellists:
• Cathy Welsch, Advocate at the Johannesburg Bar
• Egon Osmond, Egon A. Oswald, Attorneys at Law
• Carina du Toit, Centre for Child Law
• Facilitator: Sushila Dhever, Fasken Martineau
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10. The 2015 State of the Nation Address: A Watershed Moment in South Africa’s
Constitutional Democracy:
This panel will reflect upon the events that took place during the State of the Union Address
in February 2015. South Africa is a Constitutional democracy and, as such, this session will
give insight and analyses to the Constitutional implications of those events. Some of the
issues to be amplified are whether the events in the SONA were indicative of a regression in
our Constitutional democracy. These issues include the signal jamming that would have
resulted in media personnel reporting on the Parliamentary sittings being limited in the
manner in which they would have given an account to the public regarding the first sitting of
Parliament. The second issue is the use of police force in order to evict representatives of
the public from the house. The third and last issue is the pandemonium caused by members
of certain opposition parties in which they disrupted the proceedings in Parliament. Do
these events symbolise retrogression in the Constitutional democracy of South Africa or do
they foreshadow a nuanced approach to giving meaning to the Constitution? Measured
against Constitutional provisions that state that South Africa is founded on a multi-‐party
system of democratic governance to ensure accountability, responsiveness and openness,
do these events give credence to our newly boisterous Constitution?
Panelists:
• Prof Adam Habib, Vice Chancellor, Univ. of the Witwatersrand
• Deputy Minister John Jeffery, Department of Justice and Constitutional
Development
• Micah Reddy, Right2Know (R2K)
• Facilitator: Nikhiel Deeplal, Students for Law and Social Justice (SLSJ)
11. Rethinking Access to Basic Education for Vulnerable and Marginalised Groups with a Focus
on Disabled Learners:
The Department of Basic Education’s inclusive education policy detailed in a 2001 White
Paper sets its vision for how the rights of learners with disabilities are to be realised. The
policy remains largely unimplemented and is a source of confusion between different
teachers, principals and education officials. As a result of a failure to adequately implement
the policy, education for the learners with disabilities in South Africa is in a state of crisis.
Hundreds of thousands of disabled children do not even attend school. Of those who attend
“special schools”, catering for learners with disabilities, many do not an education which
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adequately caters for their needs. These specialist schools often lack the basic skills and
resources required to teach learners. For example, there are no braille textbooks for blind
learners at the significant majority of schools for the visually impaired and many teachers’
for the visually and hearing impaired are not braille literate or proficient in sign language. In
addition schools report that Department of Education officials who are tasked with inclusive
education have little or no expertise in the specialist area of education for learners with
disabilities.
The panel will canvas and expand upon some of the challenges faced by learners with
disabilities in accessing their right to basic education. Panellists will discuss the
circumstances at schools for the visually impaired and work with learners with hearing
impairments. Panellists will engage with the contents and implementation of the Inclusive
Education Policy with particular reference to the consolidation and capacitating of special
schools.
Panellists
• Faathima Mahomed, Legal Resources Centre, Durban
• Silomo Khumalo, Legal Researcher, SECTION27
• Dr Moses Simelane, Department of Basic Education
• Advocate Bokakantla Joseph Malatji, SA Human Rights Commission
• Facilitator: Dr. Brian Watermeyer, Stellenbosch University
12. Environmental Offsets: A License to Pollute?
In recent years there has been a rapid increase in the inclusion of environmental offsets by
government departments as license conditions for developments in sensitive areas.
Originally limited to biodiversity offsets, the concept of offsets expanded to include water
and even air quality offsets. The risk is that offsets are used by regulators to justify the
approval of projects with unacceptable environmental risks, to detriment of communities
who have to suffer polluted air, water and therefore an infringement of their constitutional
right to an environment not harmful to health or well-‐being. The risk is compounded by the
use of offsets by departments in the absence of a finalised regulatory framework. It is
therefore critical that the environmental justice sector develops a response to offsets to
ensure they do not become a license for companies to pollute.
This panel will explore the issue of offsets through defining the concept of offsets and
critically examining their on-‐the-‐ground application in the areas of air, water and
biodiversity.
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Panellists:
• Susie Brownlie, Environmental Assessment Practitioner
• Robyn Hugo, Centre for Environmental Rights (CER)
• Caroline Ntaopine, ActionAid and the Vaal Environmental Justice Alliance (VEJA)
• Louis Snyman, Centre for Applied Legal Studies (CALS)
• Facilitator: Osmond Mngomezulu, Lawyers for Human Rights (LHR)
13. The Right to Protest, the Regulation of Gatherings Act and the Current Political
Atmosphere:
Throughout all political history, protest has been central to negotiation of power and
expression of demands and dissatisfaction. From the Marikana Massacre to daily service
delivery protests, the right to “Assembly, demonstration, picket and petition” as entrenched
in section 17 of the Constitution has been a key feature of South Africa’s national discourse
in recent years. The Cape Town Magistrate’s Court recently convicted ten leaders of the
Social Justice Coalition for contravention of the Regulation of Gatherings Act 205 of 1993.
SJC, represented by the Legal Resources Centre, intends to challenge the convictions and the
Act on the grounds that it is unconstitutional and criminalises peaceful protest.
Simultaneously, 129 Community Health Care Workers and Treatment Action Campaign
activists, represented by SECTION27 and Webbers, are facing similar charges in
Bloemfontein. They are preparing for trial on 30 March. These cases put a light on the right
to protest and the way in which it is limited by law and practice. This panel will feature
discussion on the right to protest, what the right means in our current political atmosphere,
the way in which the Regulation of Gatherings Act affects the right, the possible legal
challenges to the Act and suggestions for alternatives to the current legislation. The panel
will also provide practical guidance for activists on compliance with the Gatherings Act.
Panellists:
• Mazibuko Jara, Ntinga Ntab KaNdoda
• Simon Delaney, Delaney Attorneys
• Joel Bregman, Social Justice Coalition
• Facilitator: Patrick Mdletshe, Section27 and the Treatment Action Campaign (TAC)
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14. Challenges in Realizing the Constitutional Promise of Tenure of Security for the Poor and
Previously Disadvantaged:
The series of relevant pieces of legislation from post 1994 (including IPILRA, ESTA, PIE, LTA,
the Restitution Act and earlier land redistribution policies) cautiously sought a shift away
from the private property dominated paradigm of pre-‐constitutional South Africa in order to
make the promise of land reform and tenure security real for all South Africans. Twenty
years on, the legislation and policy framework have become less and less progressive, with
tenure security still reserved for a privileged few. This panel will investigate why the relevant
legislation and policy frameworks are failing poor people. Jurisprudence across the sectors
(from urban to rural) has been uneven. What is consistent, however, is the move towards
elite capture (whether in the form of traditional leaders, agri-‐business or large scale
development). Increasingly, poor people can only claim tenure security or State resources
through their traditional leader or their ‘strategic partner’ in the case of land reform
beneficiaries. The recent promulgation of SPLUMA and its regulations further entrenches
this trend.
Panellists:
• Henk Smith, Legal Resources Centre (LRC)
• Michael Clarke, Centre for Law and Society (CLS)
• Lwazi Mtshiyo, SERI
• Facilitator: TBC
15. The Right Not to be Refused Emergency Medical Treatment
Background
Seventeen years after Soobramoney v Minister of Health, KwaZulu-‐Natal, the meaning of the
right not to be refused emergency medical treatment and the obligations on the state and
private parties in realizing this right remain unclear. The poor quality of available emergency
medical services across the country and recent legal developments on emergency medical
services bring the issue to light once again and provide an opportunity to discuss the
meaning of the right and the concomitant obligations. Some notable recent developments
include:
• The National Department of Health publication of draft regulations on emergency
medical services in 2014, in compliance with its obligations in the National Health
Act.
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• The SA Human Rights Commission Hearing on Emergency Medical Services in the
Eastern Cape.
• The case of Oppelt v Department of Health, Western Cape heard by the
Constitutional Court in February 2015. (The case dealt with an injured schoolboy's
rights to emergency medical treatment after he was injured in a rugby match. The
Applicant argued that a four-‐hour delay in emergency treatment, which arguably
led to the boy becoming a quadriplegic, constituted a “constructive refusal” of
emergency medical treatment).
Panellists
• Sasha Stevenson, SECTION27
• Nomalunge James, Eastern Cape Community Health Care Worker and Activist
• Prashianne Hansraj, Lawyers for Human Rights (LHR)
• Prof Lee Wallis, Head of Emergency Medicine, Western Cape
• Facilitator: Mluleki Marongo, Section27
*Students for Law & Social Justice (SLSJ) Lunch Time Session: “The Ethics Related to the
Introduction of Contraceptives in Schools”:
This special session is organised by the Wits Chapter of SLSJ.
Background: The Ministers of Education and Health are currently in talks regarding the
introduction of contraception in schools in Gauteng. The two departments have been
exploring ways to deal with the problem of teenage pregnancy. SLSJ will address this topic
through three lenses:
*Gender: Most of the proposals and current education policies are aimed at young
girls. SLSJ would like to address the need for parallel initiatives aimed at young boys.
*Health: There have been arguments suggesting that certain vaccination and
injections given at schools for sexual transmitted diseases have adverse effects on young
learners. SLSL would like to consider other concerns around health care in the province in
general relating to this topic.
*Administrative and Logistical: Do parents need to have the right to consent? Does
Gauteng have the capacity to have a provincial wide distribution of contraceptives?
SLSJ believe that this is a current, pertinent and largely undiscussed topic. The group would
like the panel to put forward innovative suggestions dealing with these ideas, looking at
moral and ethical concerns in addition to legal and policy considerations. Panellists will
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include law students from Varsity College, Pretoria; the University of Johannesburg; the
University of Pretoria; and the University of the Witwatersrand.
16. Reckless Lending and Emolument Attachment Orders (EAOs):
There are two cases on EAOs in the courts this year. One is -‐ The University of Stellenbosch
Legal Aid Clinic and Others v Minister of Justice and Others, and the other is Anglo American
Platinum, Rustenburg Platinum Mines and Others v a number of debt administrators.
The University of Stellenbosch case has been brought by about 10 applicants and the
Stellenbosch Legal Clinic against a group of lenders. The applicants are contesting two
issues, both of which contribute to excessive hardship being experienced by low-‐income
people who borrow money. The first is the issue of jurisdiction. It has been found that
people unwittingly sign consent to judgement agreements or are subject to default
judgements in geographical areas that are often hundreds if not thousands of kilometres
away from where they live or work. This makes it impossible for debtors to contest
judgements. The second issue being contested in this matter is the lawfulness of EAOs being
signed off by clerks of the courts, and not Magistrates. It is believed that the current practice
of judicial oversight by a clerk of the court in these matters is unconstitutional, as no proper
enquiry is conducted regarding whether a debtor can afford the repayment of the debt or
not. In the vast majority of cases, debtors are left with so little money at the end of each
month, owing to debt repayments, that they cannot survive.
The second High Court matter will take place in Gauteng and is being brought by Amplats
and a group of their workers against a law firm and debt administrators. This matter is
contesting the outrageous administrative costs, often as high as 44% of the debt, being
charged to debtors by unscrupulous lenders. The case is attacking the entire regime of
lending. For example, the manner in which debt administrators incur expenses for legal fees
from “friends” or even their own law firms. And the various costs that are added to original
debts, and factors that result in workers having barely any money at the end of each month.
The issue is that these debts escalate, possibly owing to unlawful charges. In addition,
companies may be lending in circumstances where the debtor cannot afford repayment and
may not undertake sufficiently thorough credit investigations.
One of the panelists has a number of clients who have fraudulent emoluments attachment
orders against them and the attorney is active at the Magistrates Court Johannesburg in
trying to weed out the reckless lenders and bring them to account.
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Panellists
• Darryl Bernstein, Baker & McKenzie
• Mathilda Rosslee, Stellenbosch University Legal Clinic
• Stephanie Boyce, Boyce Attorneys
• Facilitator: Odette Geldenhuys, Webber Wentzel
17. Power and Responsibility: The Legal Obligations of Multinational Companies and
Available Tools to Hold Them Accountable For Human Rights Abuses:
The duty of corporations in relation to human rights in the international space has been
limited, historically, to the duty to respect human rights. Globalisation, economic and
scientific developments, and transnational trade and investment have widened the scope of
influence and impact of business. Consequently, multinational companies have become
repositories of power and their operations now have the ability to impact human rights in a
positive or negative manner. Despite recognition of human rights in the international
sphere, remedies in international law for abuses of these recognised human rights are
limited: corporations’ role in the human rights framework is limited to a responsibility to
protect human rights.
The UN saw this gap and appointed the Special Representative of the Secretary-‐General on
the issue of human rights and transnational corporations and other business enterprises to
elaborate on the duties of business regarding human rights. The Special Representative’s
work culminated in the Guiding Principles on Business and Human Rights: Implementing the
United Nations ‘Protect, Respect and Remedy’ Framework. The panel will consider the
current debate regarding the need for a binding treaty on business and human rights in light
of this existing framework. It will also consider regional strategies to hold corporations
accountable for human rights violations.
The role and obligations of financial institutions as repositories of power is another aspect of
the relationship between business and human rights that has previously been under
examined. The panel will discuss the other creative tools available, such as the Draft
Johannesburg Principles, to encourage operationalisation of human rights in financial
arrangements between businesses and financial institutions.
Panellists:
• Prof David Bilchitz, University of Johannesburg, and Director of the SA Institute for
Advanced Constitutional, Public, Human Rights and International Law
• Prof Danny Bradlow, University of Pretoria
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• Prof Bonita Meyersfeld, University of the Witwatersrand, and Director of the Centre
for Applied Legal Studies (CALS)
• Cassim Coovadia, Banking Association of South Africa (BASA)
• Facilitator: Wilmien Wicomb, Legal Resources Centre (LRC)
18. Failure to Comply: Strategies to Ensuring Compliance with Court Orders:
The court’s inherent power to regulate its own procedures in one of the defining
features of common law legal systems. This inherent power also gives the court the
power to ensure compliance with its orders through contempt of court proceedings.
Television has popularised contempt in facie curiae where a lawyer may be thrown in jail
for being rude to a judge. However, contempt ex facie receives less attention but is the
main instrument through which courts ensure compliance. In a current climate of
threatened political impunity, these instruments are more important than ever to
ensure that the third branch of government retains its independence. Courts, rightly and
wrongly at times, are quite hesitant to exercise these powers. This discussion panel will
look at the current state of compliance and, in particular, will look at: deference given to
organs of state and their non-‐compliance with the rules of procedure, judicial notice
taken of the appalling state of the State Attorney’s Office (particularly in Pretoria),
different legal instruments available to courts and litigants to ensure compliance,
creative methods for ensuring compliance in other jurisdictions as well as lessons learnt
from other jurisdictions.
Panellists:
• Mark Heywood, Section27
• Fundi Moyo, Lawyers for Human Rights (LHR)
• Facilitator: David Cote, LHR