|
Legalbrief Africa is supported by the Open Society Initiative
for Southern Africa, the IBA Educational Trust and Juta Law |
|
Quotes of the Week
‘Investigate this incident and bring the perpetrators to justice.’
– Secretary-General Ban Ki-moon calling for everything possible to be done to prevent atrocities like the recent r ape of more than 150 women and children in the DRC
‘On consultation with our senior legal counsel they agree that we should appeal this finding, which we believe is totally incorrect. Until the appeal has been heard and the outcome determined, our business will continue as usual as agreed with the Gambling Boards.’
– Piggs Peak's operations director Lew Saul Koor on the Swaziland c asino’s plans to appeal against the North Gauteng High Court ruling which bans online gambling in SA
‘I will close down newspapers that lie and tarnish my government's image.’
– Malawian President Bingu wa Mutharika threatening to shut down newspapers he accused of lying that up to 1m Malawians will need food aid
‘We have to intervene now to prevent South Africa from becoming a state where corruption is the norm and no business can be done with government without first paying a corrupt gatekeeper.’
– Cosatu head Zwelinzima Vavi slamming government corruption
‘The more people die in the strike, the better for the strikers. They don't care because they want to make their point.’
– A volunteer helping during the public servants' strike at ChrisHani-Baragwanath Hospital in Soweto
‘A government with serious socio-economic challenges will think twice before spending millions of rands buying tickets (for) a month-long soccer tournament and buy(ing) acres of space in the media to peddle lies and mislead the public.’
– National Education, Health and Allied Workers' Union spokesperson Sizwe Pamla referring to a government advert placed in Sunday newspapers on its wage offer for striking public servants
‘Not all people think the same, we have received overwhelming support from our branches, provinces and different sectors of society.’
– African National Congress spokesperson Jackson Mthembu during a debate on the proposed media appeals tribunal
The use of non-firearms, mainly hammers, and the systematic massacres of survivors after camps were captured show that the number of dead is not attributable to the hazards of war.’
– A leaked UN report on revealing mass human rights abuses in the DRC in the 1990s
| |
Latest judgments online
Eastern Cape High Court
Douglas Christopher Louw and six others v SA Mohair Brokers Limited and 13 others: Leave to appeal to SCA granted – claim that court erred in holding that the directors of the first respondent had a fiduciary duty towards the shareholders of the company; in finding that the applicants were entitled to relief pursuant to the provisions of s 252(1) of the Companies Act; and (3) in failing to apply the law of meetings in determining the issues in dispute in relation to the first applicant.
Judgment
Larigan Terblanche v The State: Criminal Law – Sentence – Appeal against – Appellant convicted as an accessory after the fact – Appellant’s role confined to assisting the co-accused to drag the deceased’s body away from scene of shooting – Sentence of eight years imprisonment set aside - Appellant’s role not warranting such sentence – Appellant sentenced to five years imprisonment.
Judgment
Free State High Court
National Association of Welfare Organisations and non-Governmental Organisations and 2 others v MEC for Social Development: The Free State Policy on Financial Awards to the Nonprofit Organisations in the Social Development Sector of August 2003 deemed to be is inconsistent with the constitutional and statutory obligations of the first and second respondents in terms of sections 26, 27 and 28 of the Constitution, section 4(2) of the Children’s Act, 38 of 2005, section 3(2) of the Older Persons Act, 13 of 2006 and the provisions in respect of statutory services referred to in this judgment, in that it fails to recognise as a fundamental principle of funding that non-profit organisations that care for children, older persons or vulnerable persons in need or provide statutory services, fulfil the obligations of the first and second respondents.
Judgment |
|
| The views expressed in this newsletter are a reflection of those contained in the original reports to which they are linked, and are not necessarily those of the International Bar Association, Juta and Company Ltd or Legalbrief.
|
|
Disclaimer
Any information, including journalistic articles, in this electronic newsletter is not intended to constitute legal, financial, accounting, tax, investment, consulting or other professional advice or services. Before making any decision or taking any action, which might affect your personal finances or business, you should consult a qualified professional advisor. For more information, please read our Terms and Conditions. |
|
|
|
Africa Focus
DRC: UN under fire over latest atrocity
The mass r ape of women and children by rebels from the Mai Mai militia and Rwandan Hutu FDLR has sparked international outrage and forced the UN to take a stand. Legalbrief reports that Russia's UN Ambassador Vitaly Churkin, the current Security Council president, said members want to hear from Assistant Secretary-General for Peacekeeping, Atul Khare, immediately after he returns from the DRC on 8 September. The council also condemned s exual violence as a human rights abuse and called on the DRC to punish those responsible. ‘It is of utmost importance that the Democratic Republic of the Congo continue to pursue its efforts to fight impunity,’ the council said amid growing criticism that more was not done to prevent the attacks. The rebels, who occupied the town of Luvungi in North Kivu province from 30 July to 3 August, r aped and assaulted at least 154 civilians. The UN has a peacekeeping force of nearly 20 000 members in the DRC.
UN Secretary General Ban Ki-moon said he was ‘outraged’ by the attacks and has sent two envoys to investigate. Ban said he had met victims of ‘appalling crimes of s exual violence’ in the DRC last year and felt compelled to ask whether more could have been done to protect the latest victims, notes a BBC News report. Certainly, the incident has caused a great deal of embarrassment for the UN which last year adopted a resolution recognising the importance of preventing and responding to s exual violence as a tactic of war against civilians. Roger Meece, a UN official in eastern DRC, said that while local people had told the UN patrols about roadblocks, they said nothing about the s exual violence. Speaking to journalists by video from Goma, Meece said the villagers may have feared reprisals from the rebels or have been ashamed by the cultural stigma of r ape. However, The New York Times reports that the humanitarian group that documented the r apes, International Medical Corps, said that it first notified the UN of the attacks on 6 August. The UN claims the group told it about the r apes on 12 August for the first time. An e-mail alert from the UN Department of Safety and Security was reportedly sent to UN staff members on 30 July, the day the r apes began. The message warned them to stay away from the area – part of Walikale, in the North Kivu Province of Congo – because it had been taken over by rebels. Since the attacks, the UN has faced questions about its efficacy in the Congo, where it operates the most expensive peacekeeping mission in the world, notes a report in the Montreal Gazette.
Full BBC News report
Full report in The New York Times
Full Montreal Gazette report
View an Al Jazeera documentary on s exual violence in the DRC
Meanwhile, the US says it will help any effort to bring to justice rebels accused in the ‘horrific’ mass r ape of women and children in the DRC, Secretary of State Hillary Clinton said the ‘horrific attack’ is yet another example of how s exual violence undermines efforts to achieve and maintain stability in areas torn by conflict but striving for peace. ‘The US will do everything we can to work with the UN and the DRC Government to hold the perpetrators of these acts accountable, and to create a safe environment for women, girls, and all civilians living in the eastern Congo,’ Clinton vowed. According to a report on the IoL site, Clinton said it was now time for member nations to go beyond that with specific steps to protect civilians against s exual violence and prosecute those who commit such atrocities.
Full report on the IoL site
In another alarming development, UN investigators have uncovered mass human rights abuses in the DRC in the 1990s, including the possible genocide of Hutu refugees by Rwandan forces. A leaked report by the UN High Commissioner for Human Rights details massacres, r apes and looting by forces from various countries in two wars that rocked the former Zaire between 1993 and 2003. According to a report on the News24 site, the most serious claims target Rwanda, whose forces along with Congolese troops allegedly shot, clubbed and axed to death vast numbers of ethnic Hutu refugees in the DRC, including women, children and the elderly from 1996 to 1998. After the genocide of minority Tutsis in Rwanda in 1994, about 1m Hutus fearing reprisals fled across the western border to the DRC. Rwandan Tutsi forces raided refugee camps there in search of Hutu genocide leaders.
Full report on the News24 site
The 545-page report on 600 of the most serious reported atrocities raises the question of whether Rwanda could be found guilty of genocide against Hutus during the war in Congo, but says international courts would need to rule on individual cases, according to The New York Times. It says that while Rwanda and Congolese rebel forces have always claimed that they attacked Hutu militias who were sheltered among civilians, the UN report documents deliberate reprisal attacks on civilians. The report says that the apparently systematic nature of the massacres ‘suggests that the numerous deaths cannot be attributed to the hazards of war or seen as equating to collateral damage’. It continues: ‘The majority of the victims were children, women, elderly people and the sick, who were often undernourished and posed no threat to the attacking forces.’
Full report in The New York Times
Rwanda rejected the report as ‘malicious and ridiculous’ and accused the UN of seeking to bury its own failings. ‘It is immoral and unacceptable that the UN, an organisation that failed outright to prevent genocide in Rwanda ... now accuses the army that stopped the genocide of committing atrocities in the Congo,’ said Rwandan Government spokesperson Ben Rutsinga. According to a Mail & Guardian Online report, he said the report was meant to deflect attention away from the mass r apes that UN troops currently in Congo failed to stop in villages earlier in August. It accused UN investigators of failing to consult Kigali during their probe, which the government said was ‘based on questionable methodology, sourcing and shockingly low standard of proof’. Rwanda has also threatened to withdraw its troops from UN peacekeeping operations if the world body publishes the report, according to another Mail & Guardian Online report. Addressed to UN Secretary-General Ban Ki-moon, the letter from Foreign Minister Louise Mushikiwabo describes the report from the UN High Commissioner for Human Rights as ‘fatally flawed’ and ‘incredibly irresponsible’. The letter asks why the investigators spent six weeks in DRC but never came to Rwanda or asked for meetings with Rwandan officials, who were given the 545-page draft two months ago. Investigators say they required two independent sources for each of the 600 incidents documented. The draft says the systematic and widespread attacks ‘could be classified as crimes of genocide’ by a competent court.
First Mail & Guardian Online report
Second Mail & Guardian Online report
SHARE THE BENEFITS OF LEGALBRIEF AFRICA!
Legalbrief Africa is your newsletter - and we would like to enlist your support in sharing it with everyone who might be interested in receiving the comprehensive, in-depth current news updates. Legalbrief Africa is a sponsored initiative of the International Bar Association intended to provide an information network for African legal and other professionals in the field of law, human rights, governance, constitutional issues and legislation in Africa.
We appeal to existing subscribers to help grow this network by forwarding the service to colleagues and business associates and to encourage them to register for this valuable service - Click here for quick online registration. A short note of introduction from you will go a long way to promoting this valuable service. Thank you for your support! |
|
General Law Reports
Kenya/Sudan: Historic signing marred by al-Bashir visit
Kenyan President Mwai Kibaki signed a new Constitution into law last week as part of a reform movement aimed at curbing vast presidential powers. The Jurist notes that Kenya's new Constitution includes numerous checks on presidential authority, among which are the creation of a Supreme Court and senate. However, a triumphant day meant to mark Kenya's ‘second birth’ was tarnished after its government was reported to the UN Security Council for hosting and refusing to arrest Sudan's fugitive President, Omar al-Bashir, in defiance of its legal obligations. According to a Mail & Guardian Online report, al-Bashir, who is accused by the International Criminal Court (ICC) of genocide and war crimes allegedly committed in Darfur, was a guest at the signing ceremony for a historic new Constitution. As a party to the court, Kenya was legally obliged to arrest al-Bashir. The ICC has no police force and relies on member states to enforce its warrants. According to a report on the News24 site, Kenya's Government has defended its recent failure to arrest al-Bashir, citing its strategic interest in the neighbouring country. Foreign Affairs Assistant Minister Richard Onyonka said that arresting al-Bashir may have adversely affected the political situation in Sudan.
Full Jurist report
Full Mail & Guardian Online report
Full report on the News24 site
Prime Minister Raila Odinga on Sunday admitted that Kenya was wrong to invite al-Bashir, notes a report on the News24 site. ‘It was wrong to invite President Bashir because he was indicted on crimes against humanity – as much as we want to foster good neighbourliness with countries in the region,’ he said at a special church service for the new Constitution. ‘Kenya wishes to reaffirm its commitment to the ICC,’ Onyonka said after former UN chief Kofi Annan said Kenya should clarify its position on the ICC.
Full report on the News24 site
Madagascar: Former President sentenced to life imprisonment
Madagascar's exiled former President has been sentenced to life in prison with hard labour for ordering the killing of opposition supporters, notes a BBC News report. Marc Ravalomanana was sentenced in absentia for the 2009 murders of at least 30 people by his presidential guard. Ravalomanana has been living in SA since March 2009. Those killed were supporters of Andry Rajoelina, who has now taken over. Radio Netherlands reports that the deposed leader was charged with murder and being an accessory to murder, along with 18 other people, some of whom are also in exile. The country has been in the midst of a political crisis for the past 19 months. The crisis has stunted economic growth on an island known for its deposits of oil, coal, uranium, chrome, nickel and cobalt.
Full BBC News report
Full Radio Netherlands report
Somalia: Man pleads guilty to attacking US warship
A Somali man has pleaded guilty to taking part in an armed attack on a US warship off the Horn of Africa in April and will likely face 30 years in prison, the Department of Justice said. According to a report on the IoL site, Jama Idle Ibrahim appeared before a judge in Norfolk, Virginia, in connection with the April attack in the Gulf of Aden of the USS Ashland, which he and five other Somali pirates mistook for a merchant ship. They were captured after a brief skirmish. Ibrahim pleaded guilty to piracy-related charges including ‘attack to plunder a vessel, engaging in an act of violence against persons on a vessel and use of a firearm during a crime of violence’.
Full report on the IoL site
Zimbabwe: Mugabe addresses land reform concerns
Former commercial farmers can appeal to any court – regional or international – but they will never reverse land reform, said Zimbabwean President Robert Mugabe. Addressing hundreds of mourners at the burial of liberation war hero Reward Marufu, the President said efforts by some white farmers to use the ‘improperly constituted’ SADC Tribunal would not yield any results as long as Zimbabweans remained united in defence of the country's sovereignty and hard-earned independence. The Herald notes that Marufu was buried on Sunday at Madondo Village in Chivhu with full military honours. Mugabe urged Zimbabweans to be united in defence of the country's heritage and natural resources.
Full report in The Herald
South Africa: Ruling on disbanding of Scorpions this week
The Constitutional Court will on Thursday rule on whether the Scorpions should be reinstated. A Sowetan report notes Hugh Glenister brought an application demanding that two Acts – one that authorised the disbandment of the Scorpions and another that saw the organisation being incorporated into the SAPS – be declared unconstitutional and invalid. ‘We are challenging the two Acts to indicate that we do not agree with them and that they go against the Constitution,’ he said. The report notes both the National Prosecuting Authority Amendment Act 56 and the South African Police Service Amendment Act 57 came into effect in 2008. Glenister first lodged the application with the Western Cape High Court, which dismissed it in February.
Full Sowetan report
South Africa: Dodo egg to remain at East London museum
What is believed to be the world’s only remaining dodo egg will remain under the curatorship of the East London Museum following a court battle over its ownership, says a Daily Dispatch report. Judge Bonisile Sandi, of the Eastern Cape High Court (East London), dismissed the application – brought by Dr Michael Buchholtz and his mother, Deidre Buchholtz – to become the guardians of the 400-year-old egg. Deidre’s aunt, the late naturalist Dr Marjorie Courtenay-Latimar, placed the egg in the custody of the East London Museum in 1999. However, Deidre, who inherited Courtenay-Latimar’s estate following her death in 2004, and her son Michael lodged an application with the court in October 2009 in an attempt to have the egg returned to them. Sandi has now dismissed the application with costs, adding that it would now be the duty of the executor of Courtenay-Latimar’s estate and Deidre’s husband Douglas Buchholtz to ‘deal with it accordingly’. The report notes Sandi did not make a judgment with regard to DNA testing on the egg. The report notes that Douglas Buchholtz confirmed that the egg would ‘for the time being’ remain under the curatorship of the museum.
Full Daily Dispatch report
Uganda: Policemen arrested over death of suspect
Two Ugandan policemen have been arrested over the death of a man in their custody, notes a report in The New Vision. Muhammad Kavuma and Ramhadhan Dhikusoka, both attached to the Rapid Response Unit, are being held at Wandegeya Police Station in Kampala on the orders of police chief Kale Kayihura. The family of 22-year-old Frank Ssekanjako, a robbery suspect, said he was tortured to death. According to the report, Ssekanjako died at the home of a woman only identified as Yudaya, who accused him and three others of raiding her home. Meanwhile, the Uganda Human Rights Commission has awarded another torture victim $95 000 in compensation. The tribunal, presided over by Commissioner Agaba Maguru, ruled that Charles Opio be compensated for being tortured by UPDF soldiers in 2003. The court heard that Opio was accused of hiding LRA rebels in his house. As a result of the torture, Opio’s hands were amputated.
First report in The New Vision
Second report in The New Vision
Somalia: Woman jailed for plane hijack attempt
A Somali woman who tried to hijack a small aircraft on an internal flight in New Zealand in 2008 has been sentenced to nine years in prison, notes a BBC News report. In the first incident of its kind in New Zealand, Asha Ali Abdille took three knives onto the plane and tried to force its pilot to fly to Australia. When told that the plane lacked fuel she demanded it fly into the sea. Abdille, a 36-year-old refugee, approached the pilots about 10 minutes after takeoff and claimed she had two bombs. According to the report, she came close to causing the aircraft to crash after she interfered with controls.
Full BBC News report
Zimbabwe: Company heavyweights score despite crippling debt
Zimbabwe's parastatals are paying executives and senior management monthly salaries of up to $15 000, despite reports of mismanagement, corruption and crippling debt. According to a Mail & Guardian Online report, the pay levels have been widely condemned as not reflecting the country's economic reality, which includes a civil-servant salary freeze at $165 a month, poor service delivery and a weak economic recovery. In addition, 44 of the 76 parastatals have not submitted audited financial statements or held annual general meetings for the past five years, as stipulated by Zimbabwe's Companies Act.
Full Mail & Guardian Online report
South Africa: Farmer’s genocide plea to UN ‘ludicrous’ – government
A claim that the government was committing genocide against Afrikaner farmers was ‘ludicrous’, said government spokesperson Themba Maseko in response to a petition by an unnamed farmer to the UN. ‘There is no wholesale attempt or process to commit genocide against Afrikaner farmers. Although we acknowledge that there is crime affecting farmers, government is dealing with all incidents of crime, not just attacks against farmers.’ In a petition submitted to the UN, an anonymous farmer has accused the government of committing genocide against the ‘Afrikaner Boer’, notes a report on the News24 site. ‘The second act of genocide committed against the Afrikaner Boer nation is by the ruling African National Congress government in South Africa,’ read the preamble to the petition, which was posted on the Web site www.stopafrikanervolksmoord.co.za last week. The petition asked that the UN Security Council and General Assembly ‘allow the study of the possibility of the African National Congress (ANC) government using criminal gangs (including foreigners and particularly Zimbabweans and Mozambique citizens) as well as through the clandestine use of the SA National Intelligence Agency (NIA), the utilisation of the (Umkhonto we Sizwe) veteran soldiers and the SA Police Services, to execute these farmer murders and attacks’. He claimed that the number of commercial farmers had dropped from 90 000 to 40 000 between 1994 and 2010 and that 36 500 Afrikaner farmers had been murdered.
Full report on the News24 site
Staying with land issues, AgriSA claims ANC Youth League president Julius Malema's call for the willing buyer, willing seller principle to be scrapped is unconstitutional and could undermine investor confidence, says a report on the News24 site. ‘He (Malema) disregards the Constitution of SA, whereby compensation should be agreed to by those affected or decided by a court of law,’ said the organisation's president, Johannes Möller. The body said Malema had contradicted the ANC's position on land expropriation. Earlier, the Mail & Guardian quoted Malema as saying that landowners who refused amounts offered during expropriation should have their land taken away without any payment. ‘It's a simple policy. We're going to take the land, but we'll compensate and we'll determine the price. We go to (slain AWB leader Eugene) Terre'Blanche's farm and say: ‘’For these many hectares we will give you R2m, thank you very much’'. If you say that's too little and you don't want it, then we take the land and give you nothing. It's called expropriation with compensation determined by the state,’ Malema was reported to have said.
Full report on the News24 site
South Africa: Mother bids to get jailed son home
A mother has taken the government to court to force it to get her son back home from a Mauritian prison where he is serving a long jail term for possession of drugs. According to a report in The Times, Patricia Gerber approached the North Gauteng High Court in an attempt to compel the government to have her 24-year-old son, Johann Gerber, transferred to an SA jail to serve the remaining years of his sentence. In court papers, Gerber says the government has the power to enter into prisoner transfer agreements with Mauritius and the authority to consider her request rationally, in good faith and in accordance with the principle of legality.
Full report in The Times
South Africa: Parliament has right to summon Minister – Speaker
National Assembly Speaker Max Sisulu has agreed with Defence Minister Lindiwe Sisulu that she had to hand over interim reports of the National Defence Force Service Commission to Parliament’s Defence Committee only once they had been processed by the Cabinet. However, a Business Day report says the Speaker recognised that Parliament had the right to summon any person to give evidence and to require any person or institution to produce documents. He said, however, ‘the practice has been for Parliament to invoke this measure as a last resort, preferring to rely on the co-operation of government and other sectors’. Democratic Alliance defence spokesperson David Maynier regarded Max Sisulu’s opinion – sought by committee chairperson Nyami Booi – as a victory for Parliament and the committee. He said it was a ‘complete rejection of Cabinet’s view that the Minister was not obliged to table the interim reports of the National Defence Force Service Commission’ – and that the Cabinet’s co-responsibility was to require the Minister to process reports, policy documents and legislation through the Cabinet prior to tabling them in Parliament.
Full Business Day report
Africa: 10 tons of counterfeit medicines seized
Police seized about 10 tons of counterfeit medicines and arrested 80 people in a sweep across eastern Africa, said international police agency Interpol. According to a report on the News24 site, the operation, which Interpol co-ordinated under the umbrella of the World Health Organisation (WHO) over the past two months, included the arrest of suspects involved in the manufacture, trafficking and sale of fake medical products. Production and sale of counterfeit drugs is on the rise in rich and poor countries especially Africa, where counterfeit medicines are commonly available to treat life-threatening conditions such as malaria, tuberculosis and HIV/AIDS.
Full report on the News24 site
N igeria: Ex-militant ‘was murdered’
The family of a notorious ex-militant in N igeria has told police he was killed in an ambush that has sparked fears of violence ahead of upcoming presidential elections, notes a report on the News24 site. ‘Chief Adiele George, a member of Soboma George's family in Buguma, told us that his brother was killed last week,’ Rivers State police spokesperson Rita Abbey said. But she said neither the police nor the family had seen George's corpse. The family was told by George's followers that he was shot in the head and chest by his attackers in the oil hub of Port Harcourt. ‘We are still investigating the motive for the killing,’ she said, adding that no arrests had been made.
Full report on the News24 site
South Africa: Kebble jovial on night of death
The South Gauteng High Court heard last week that slain mining magnate Brett Kebble was jovial and making plans for the future on the night of his death. A report in Business Report says former friend and media liaison Dominic Ntsele testified that Kebble made several phone calls on that night and seemed to be in a good mood afterwards. Ntsele had dinner with Kebble on the night of his death. The case was postponed until 25 October, when Kebble's father Roger is expected to testify.
Full report in Business Report
Uganda: Army court jails 12 soldiers
The UPDF court martial in Uganda sentenced 12 soldiers to imprisonment in a number of cases. The New Vision reports that the cases included neglect and interference with legal custody, failure to execute duties, failure to protect war materials, consuming and possessing drugs, alcoholism and assault. The court, chaired by Major Medi Baguma, sentenced Private Steven Okot to 10 years in prison for desertion and involvement in criminal activities. Private Ayebazibwe David was also sentenced to seven years imprisonment after he was found guilty of criminal acts. According to the report, the court also dismissed two officers after they were found guilty of drug abuse, assault and failure to execute their duties.
Full report in The New Vision
South Africa: Boeremag trial judge rejects PoW application
The judge in the Boeremag treason trial last week dismissed an application by three of the accused to be declared prisoners of war, according to a report on the IoL site. Brothers Johan, Willem and Kobus Pretorius asked the North Gauteng High Court to afford them protection under the Geneva Convention. The order would have meant the three would be handed over to the SA National Defence Force. The brothers insisted they should not be treated as ordinary criminals who committed crimes for gain, but as ‘soldiers’ embroiled in an armed struggle for the self-determination of the ‘Boerevolk’. The three conceded their involvement in activities such as manufacturing home-made bombs, knowing these bombs were to be placed at strategic points. They, however, said they had regarded themselves as soldiers of the South African Boere Republic engaged in a war. The trial began more than seven years ago. The state closed its case in June 2007 after calling 158 witnesses.
Dismissing the application, Judge Eben Jordaan said there was no evidence civilians had been warned that bombs would explode near them. ‘The core (of the protocol) remains that only the targeting of military targets is permissible. The targeting of civilian targets is in conflict with the provisions of Protocol I,’ he said. The judge said there was no internal disciplinary system to enforce the rules of international law with regard to the armed conflict among the accused. ‘I am of the view that what the applicants did according to their own admissions does not justify the term legitimate combatants. Their modus operandi was to blow up civilian targets in the night. An organised military force surely supposes more than that.’ Jordaan said argument that the accused had been under a command structure was not supported by evidence. The protocol's stipulation of a command structure was apparently to ensure that disorganised gangs did not enjoy the protection of prisoner of war status.
Full report on the IoL site
Somalia: Prosecution of pirates under UN scrutiny
UN member states and regional organisations have debated whether Somali pirates should be prosecuted. The issue was this week discussed in a Security Council meeting, following a report submitted last month by Secretary-General Ban Ki-moon outlining seven possible legal options. According to a report on the allAfrica.com site, Ban’s report details the options of supporting existing domestic courts, creating a new chamber within national courts, or establishing entirely new tribunals – either regional or international – to try suspects charged with piracy. The Secretary-General also announced that he had created a new special advisory position to address legal issues related to piracy off the coast of Somalia.
Full report on the allAfrica.com site
Uganda: Court overturns law undermining free speech
A panel of the Ugandan Constitutional Court ruled unanimously that a law criminalising sedition violates the guarantees of free speech and freedom of the press under the country’s Constitution. The Jurist notes that the law made it a crime to make or publish statements that promoted hatred, contempt or disaffection for the Ugandan Government, President or judiciary. A conviction could carry a sentence of seven years. The law was first challenged by Andrew Mwenda four years ago, after he was charged with sedition in 2005. According to the report, the court held that the law unconstitutionally restricts the rights of Ugandans under Article 29 of the Constitution.
Full Jurist report
Equatorial Guinea: Speedy executions defended
Equatorial Guinea defended the execution of four men convicted of attempting to assassinate President Teodoro Obiang during a 2009 attack on the presidential palace. The Jurist reports that Jose Nsue, Manuel Anseme, Alipio Asumu and Jacinto Obiang were executed immediately after being convicted by a Military Court in Malabo. According to a BBC News report, Amnesty International says the men, who were former military and government officials, were put to death within an hour of being sentenced. They were convicted by an army tribunal and given no chance of appealing. Amnesty says the men were living in exile in Benin at the time of the attempted presidential assassination.
Full Jurist report
Full BBC News report
Togo: Magazine to pay for defaming President’s half-brother
A Togolese court has ordered the regional magazine Tribune d'Afrique to pay more than $121 000 in damages to a half-brother of President Faure Gnassingbe for defamation. According to a report on the News24 site, the article, titled Drug trafficking at top of the state, Togo in the network, Mey Gnassingbe fingered, implicated the President's half-brother in a drug trafficking network. In addition to awarding the damages, the court also banned the distribution in Togo of Tribune d'Afrique, which is edited in neighbouring Benin. The report notes that the magazine's publisher, Max Carmel Savi, said they plan to appeal against the ruling.
Full report on the News24 site
Rwanda: Exiled officer ‘alive’
The brother of Rwanda's exiled ex-army chief is alive and well in military prison, the army says, dismissing reports he had disappeared. According to a BBC News report, Lieutenant-Colonel Rugigana Ngabo was arrested last week but his wife said she could find no record of him at any of the military prisons she visited. Rwandan army spokesperson Jill Rutaremara said Ngabo was being held in Kanombe prison in Kigali. He is accused of activities that threaten national security.
Full BBC News report
Gambia: 1.2 tons of cannabis seized
Gambian authorities said they had seized 1.2 tons of cannabis and arrested six people, including three Senegalese nationals, in a raid outside the capital Banjul, notes a report on the News24 site. ‘The seizure took place following a tip-off by villagers that some Senegalese and some Gambian nationals were engaged in illegal drug trafficking,’ said senior drug enforcement officer Ibrahima Camara. The west African country has been targeted by Latin American cartels as a transit point for trafficking drugs, mostly cocaine, to Europe.
Full report on the News24 site
Rwanda: High Court burdened by ‘unnecessary cases’
The Kigali Chambers of the High Court in Rwanda is struggling under the weight of ‘unnecessary lawsuits’ that are tabled daily. High Court President Johnston Busigye told The New Times that the court was having difficulty addressing cases ‘that should not have made it to court in the first place’. Busingye explained that the court was dealing with 5 373 cases filed between 2008 and 2010. He added that the court has 26 judges, 10 of whom are full time and three who serve part-time in Kigali.
Full report in The New Times
South Africa: Radebe announces anti-corruption team
African National Congress (ANC) head of policy, Justice Minister Jeff Radebe, says the National Prosecuting Authority, the Hawks and Willie Hofmeyr’s Special Investigation Unit will team up to combat corruption. A model for the composition of such a task team was finalised in Pretoria last week, notes a Beeld report. The team will investigate corruption in the criminal justice system and the public service. ‘There is a perception that we (the ANC) don’t have the political will to act against corrupt officials. There will be lots of action within the next few weeks,’ he said. Details of the Justice Minister’s performance agreement contract with President Jacob Zuma were also revealed. As political head of the criminal justice system, Radebe will ensure that 100 people will be prosecuted and convicted of corruption by 2014. In addition, assets worth more than R5m must be seized in each of these matters ‘to show that crime does not pay’.
Full Beeld report
N igeria: Court evicts Finance Ministry staff
An order by the N igeria’s Federal Capital Territory High Court has resulted in the eviction of 42 staff of the Federal Ministry of Finance from their apartments. Business Day reports that the eviction was carried out by armed policemen, who were accompanied by court officials to enforce the writ of attachment and sales of goods obtained from the court in July. The eviction, the tenants alleged, caught them unawares because they had earlier appealed against the ruling and the appeal was still pending in the court.
Full Business Day report
Uganda: Former social security boss off the hook
Uganda’s former National Social Security Fund (NSSF) board chairperson Geoffrey Onegi Obel, accused of abuse of office and causing financial loss of $3m to NSSF, has walked free after the court dismissed the charges. The New Vision notes that Justice John Katutsi, of the Anti-Corruption Court, took the decision after the government representative failed to appear in court to support the prosecution. The case had dragged on for four years. Obel had been accused of floating an illegal private entity, Premier, and pushing NSSF into a joint venture with another private company, Mugoya Estates, to build a housing estate.
Full report in The New Vision
N igeria: Drug mule gets eight years
A N igerian national who admitted that he smuggled more than 1kg of cocaine into Namibia early this year has been sentenced to an effective prison term of eight years. The Namibian reports that Chukwujekwu Okaforudeji pleaded guilty to a charge of dealing in ‘dangerous dependence-producing drugs’. In a plea explanation provided to Magistrate Sarel Jacobs, Okaforudeji said he was arrested after arriving at Hosea Kutako International Airport east of Windhoek. He admitted that he was carrying the cocaine in plastic tubes which he had swallowed, notes the report. He said he was acting as a drug courier for an Angolan national on whose behalf he was smuggling the cocaine from Brazil into Namibia.
Full report in The Namibian
South Africa: Call to legalise trade in rhino horn
The Wildlife Ranching SA (WRSA) has called for trade in rhino horn to be legalised to combat rhino poaching in Southern Africa, says a report in The Citizen. Condemning the killing of rhinos to promote the illegal trade in rhino horn, WRSA said it believed the situation was out of control and that ‘urgent new initiatives’ had to be taken to deal with the crisis. WRSA manager Reinhardt Holtzhausen said the re-introduction of rhino horn to the trade industry, under strict control and standards, and overseen by SA authorities, would be the ‘key to the solution’. According to WRSA, more than 180 rhinos have been killed in SA in the past eight months.
Full report in The Citizen
Malawi: Cleric released on bail
A Malawian court has granted bail to a cleric arrested last week and charged with sedition, as thousands of church members demonstrated outside the High Court in the northern city of Mzuzu. According to a report on the News24 site, a court official said that Levi Nyondo, general secretary of the Church of Central Africa Presbyterian, was released after being ordered by the court to surrender all travel documents and report to police every week. Nyondo, a frequent critic of the administration of President Bingu wa Mutharika, was reportedly arrested after saying his church would support Vice-President Joyce Banda for the presidential race in 2014 and not rival candidate Peter Mutharika, the President's brother.
Full report on the News24 site
South Africa: Numsa joins strike action
The strikes that are crippling the country will intensify this week when thousands more workers join public servants on the streets. National Union of Metalworkers of SA (Numsa) members will join the fray, demanding a pay rise of 15%. According to an SABC News report, Numsa, which represents some 70 000 members in the automotive sector, says it has been trying for three months to cut a deal with employers. ‘Employers must come on board and respond positively because if they do not – they are in for a long and protracted strike,’ says Numsa president Cedric Gcina.
Full SABC News report
Egypt: Minister held over Van Gogh theft
Egypt's top prosecutor has ordered the detention of the deputy Culture Minister for four days in connection with the theft of a Vincent van Gogh painting, notes a report on the News24 site. Thieves made off with the canvas, known by the titles of Poppy Flowers and Vase with Flowers, from the Mahmoud Khalil Museum in Cairo. The prosecutor-general, Abdel-Meguid Mahmoud, ordered the detention of Deputy Culture Minister Mohsen Shalaan and four of the museum's security guards while they are investigated on suspicion of neglect and ‘professional delinquency’. According to the report, Mahmoud implicated Shalaan in the security lapses that he said led to the theft because he has an office in the museum and is in charge of its financial and administrative affairs.
Full report on the News24 site
South Africa: Exotic dancer ruling overturns parts of debt law
The arrest of a Russian exotic dancer has led to the overturning of parts of a debt law that allowed for the arrest of people who owed money and were about to leave the country, says a report in The Times. The Constitutional Court ruling concerned Tatiana Malachi, who was brought to SA from Moldavia to work for the Cape Dance Academy International and House of Rasputin Properties. Her contract stipulated that she had to repay costs associated with visas, an air ticket and accommodation and that she had to hand her passport over to a company representative. When she tried to leave the country she was arrested in terms of an order granted by the Cape Town Magistrate's Court on the grounds that money was owed and she was a flight risk. She then challenged her arrest, saying it was unconstitutional and violated her rights.
In his judgment, Justice Mogoeng wa Mogoeng, writing for a unanimous Court, held that the arrest of a person in terms of the impugned provisions was without ‘just cause’, because, among other things: (i) the arrest does not necessarily render the debt any more executable than would have been the case had the debtor left the country; (ii) the impugned provisions severely curtailed the applicant’s fundamental right to freedom; (iii) the degrading effect of incarceration could not be undone if it is determined that the money is not owed; (iv) it is inconceivable that imprisonment of a person can ever be justified where liability has not been established, bearing in mind that imprisonment for non-payment of an established debt is unconstitutional; and (v) the amount of R40 was minimal. Mogoeng held that these provisions were not reasonable or justifiable in an open and democratic society based on human dignity, equality and freedom. The order of constitutional invalidity made by the High Court was accordingly confirmed insofar as it related to the impugned provisions.
Judgment
Full report in The Times
South Africa: Poyo-Dlwati first woman to head SADC lawyers
The Law Society of SA has welcomed the election of Pietermaritzburg attorney Thoba Poyo-Dlwati as President of the SADC Lawyers Association (SADCLA). Poyo-Dlwati, past co-chairperson of the Law Society, is the first woman to take this leadership position at the SADCLA. Renowned Zimbabwean human rights lawyer Beatrice Mtetwa was elected vice-president, and Yvonne Chilume, of Botswana, Kondwa Sakala-Chibiya, of Zambia, and Patrick Mulowayi, of the Democratic Republic of the Congo, were elected to the SADCLA executive. Poyo-Dlwati, a director at Pietermaritzburg firm Ngcobo Poyo & Diedericks, has represented the LSSA on the council of the SADCLA for several years.
South Africa: Transs exual ruling to be appealed
Steel retailer Bohler Uddeholm Africa has applied for leave to appeal against a Labour Court order that it reinstate transs exual Christine Ehlers, says a report in The Times. Judge Ellem Francis ordered the company to reinstate Ehlers (43) after he found her dismissal last year was unfair and unconstitutional. He said that ‘suddenly, because she had to undergo a s ex-change operation and wanted to assert her femininity, she was dismissed because it might upset some backward customers’. In the appeal application, the company's attorney, Yusuf Nagdee, said Francis ‘erred in finding that the true reason’ for Ehlers' dismissal was ‘the result of the fact that she is a transs exual’. The ‘actual’ reason was that Ehlers was ‘incompatible’ with Bohler Uddeholm Africa's workplace.
Full report in The Times
Legislation under Review
South Africa: Nzimande softens position on media tribunal
On a weekend when Naspers chairperson Ton Vosloo warned of the inevitable destruction of the economy if the Protection of Information Bill and the Media Appeals Tribunal (MAT) were introduced as planned, the SA Communist Party, once an enthusiastic supporter of the African National Congress’s (ANC) proposed tribunal, is now soft-pedalling on both the tribunal and the Bill, writes Legalbrief. According to a Beeld report, Vosloo described the so-called Secrecy Bill and the ANC’s tribunal proposal as ‘deeply disturbing’ during his address at the media group’s AGM. The report quotes Vosloo as saying SA would be a totally different community if these plans were executed, since newspapers would no longer be reporting on corruption. ‘SA will not be a transparent democracy anymore and corruption will flourish. There is little doubt that South Africa’s economy would be destroyed.’ He expressed the hope that ‘wiser voices’ within the ANC would be heard before such legislation was passed.
Full Beeld report
The SACP has softened its position on the tribunal. While the SACP supported the proposal, the body should not be appointed by Parliament, nor should it be used for pre-publication censorship, SACP secretary-general Blade Nzimande said. ‘It needs to be an independent body – independent of party political, governmental, and narrow commercial media interference,’ he said, according to a report on the News24 site. ‘While the current proposals suggest the tribunal should be appointed by Parliament, the SACP agrees that we need to guard against the danger of political manipulation of the process,’ he said. A report in Die Burger notes the SACP urged caution on the Protection of Information Bill, warning legislation to protect information should be aimed at protecting sensitive information only.
Full report on the News24 site
Full report in Die Burger
South Africa: Online gambling industry awaits appeal and a new Act
Online gambling is legal in SA until Piggs Peak C asino’s appeal against this month’s High Court ruling making online gambling illegal is heard, says a Business Day report. Should Piggs Peak lose its court challenge, the media is among the parties that would be affected. According to Nielsen’s latest media research, two of cash-strapped SABC’s TV channels and one radio station stand to lose nearly R4m. However, the biggest loser, across all its offerings, will be MultiChoice. The report notes that the irony of the present judgment is that another Act is sitting in the wings that effectively makes online gaming legal. Wayne Lurie, an attorney spec ialising in Gambling Law, says the Interactive Gambling Act – promulgated in 2008 but not yet implemented – makes it possible for 10 online gaming operators to get licences. According to the report, Lurie points out that section 11 of the National Gambling Board Act – on which the judgment relies – was meant to be only an interim measure until new legislation came into effect.
Full Business Day report
South Africa: Exchange controls for companies to be amended
Finance Minister Pravin Gordhan has announced plans to revise SA’s exchange controls for companies and will delay tightening rules that govern cross-border interest taxation until 2013, says a Mail & Guardian Online report. ‘The proposed amendments remove various tax hurdles that a multinational company would face if it based its regional headquarters in South Africa. We are also revising exchange controls to support such initiatives,’ he said. Gordhan added that SA’s exemptions for cross-border interest were much wider than global practice, costing the country significant potential revenue. Current laws exempt foreign investors based in SA from tax on interest received from their operations outside the country. ‘The proposed amendment will close this gap by narrowing the cross-border interest exemption, mainly to mobile international capital, such as listed government and corporate bonds,’ he said. ‘Most other forms of cross border interest payments will become subject to a 10% withholding charge. Unfortunately, this amendment will have to be delayed until 2013 because the change requires the re-negotiation of certain tax treaties and the implementation of an administrative mechanism to allow for a withholding regime.’
Full Mail & Guardian Online report
South Africa: Implementation of Consumer Act likely to be postponed
The Consumer Protection Act is due to become effective within two months, but key positions for the structures that have to enforce the Act are still being advertised, notes a Sake24 report. It says the closing date for applications for the positions of commissioner (for R1.3m a year) and deputy commissioner of the National Consumer Commission is not until the end of August. The commission doesn’t have offices yet and regulations to provide guidelines on the implementation of the Act have not been published. The regulations are expected at the beginning of September, after which a month-long comment period would take place. The chief director of policy and legislation at the Department of Trade and Industry, Nomfundo Maseti, said the Minister has the power to postpone the implementation of the Act. ‘We cannot exclude the possibility that it will be postponed. It is highly probable it will happen,’ she said.
Full Sake24 report
Africa Analysis
General: China leads where the West failed
The sight of large delegations from Africa in Beijing is becoming commonplace. SA President Jacob Zuma, who led a business delegation on a four-day visit last week, expressed confidence that SA had secured more favourable trade concessions. China is now SA’s largest trading partner and, as the Financial Times notes, the Chinese are doing business and striking deals all over Africa. Other recent examples, worth billions to the recipient countries, include deals to import coal from Mozambique and oil from N igeria. China’s traders pop up all over Africa, and its construction companies have built roads, railways and buildings from Lesotho to Egypt. Some western commentators – and some Africans, too – have decried China’s burgeoning relationship with the continent as a new form of colonialism, based on the search for minerals. But, the report notes, such criticism is largely misplaced. Western-led development strategies, however well meaning, did not break the cycle of under-development in Africa. So Chinese investments, made for sound business reasons and boosting employment and growth, offer new hope and an alternative way forward. The infrastructure that the Chinese are building will also have positive spin-off effects for industries outside of natural resources. Chinese traders have brought cheap consumer goods to Africa. And, as labour costs rise at home, Chinese manufacturers may look at Africa with new interest, as a base for production.
Full Financial Times report
|
|
