JIFA Newsletter #3   January 2017
 
VISIT OUR SITE

www.jifa.uct.ac.za
 
VIRTUAL RESEARCH CLERKS FOR JUDGES 
Post graduate students at UCT are available to assist you with any research needs you have. This is a FREE service. To find out more, email vanja.karth@uct.ac.za
 
 
UPCOMING COURSES 
 
April 2017 - Core Skills for Judges
 
Editorial Note
 
Dear Subscribers,
 
Happy new year! May it be a prosperous one!
 
We hope you have found previous editions of the newsletter thoroughly useful. We have taken a slightly different tack in this edition.   We offer only two opinions on legal and jurisprudential developments from some of our contributions, and four case summaries of some of 2016’s ground breaking judgments.  From the Zimbwean case which expanded the concept of locus and declared child marriages a harmful and unconstitutional practice, to the South African judgment that held the executive to a high standard of probity and ethical conduct, and another South African judgment that held the government to be in breach of its constitutional and international obligations to arrest Sudan’s President Al Bashir when he visited the country for the 25th Ordinary Session of the African Union, we offer you a cocktail of case summaries that we expect you to find very interesting.
 
The case summaries are extracts and paraphrases of the judgment.  We have tried to be as accurate as possible with the summaries, but they should in no way be regarded as official summaries of the judgments. However, we hope that the style of reporting will inspire you to read the judgments, which we must say, make for interesting reading.
 
Enjoy! You may expect to see these case summaries as a regular feature of the JIFA Newsletter.  
 
 
In the Matter of ECONOMIC FREEDOM FIGHTERS V SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS and in the matter of DEMOCRATIC ALLIANCE V SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS
The Public Protector of the Republic of South Africa investigated allegations of improper conduct or irregular expenditure relating to security upgrades at the Nkandla private residence of the President of the Republic. Her report concluded that the President failed to act in line with some of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources for improvements that were non-security upgrades.  
 
THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS v THE SOUTHERN AFRICA LITIGATION CENTRE AND OTHERS
The International Criminal Court (ICC) issued two warrants for the arrest of President Al Bashir of the Republic of Sudan for alleged war crimes, crimes against humanity and genocide. The arrest warrants, together with a request for cooperation in the arrest of President Al Bashir, had been forwarded to all State Parties to the Rome Statute of the International Criminal Court, including South Africa.
 
 
LOVENESS MUDZURU and RUVIMBO TSOPODZI v MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS N.O AND OTHERS
Two young women aged 19 and 18 years approached the Constitutional Court of Zimbabwe in terms of section 85(1) of the Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013, seeking an interpretation of section 78(1) read with section 81 ((1) of the Constitution. They complained that the fundamental rights of the girl child were infringed by the Marriage Act and the Customary Marriages Act. Under section 22(1) of the Marriage Act, no girl under the age of 16 years and no boy under the age of 18 years shall contract a valid marriage without the consent of the Minister.
 
 
THE LAW ASSOCIATION OF ZAMBIA v THE ATTORNEY GENERAL
The appellant challenged provisions of Section 5 of the Public Order Act on the grounds that they violated Articles 20 and 21 of the Constitution. The challenge was prompted by refusals by the Police to allow public meetings, processions or demonstrations.
 
 
Malawi: Challenging constitutionality of rogue and vagabond offence

S v Gwanda (Constitutional Cause No. 5 of 2015) [2017] MWHC 1 (10 January 2017)

NB: This case summary is a blogpost on the Website of the Southern Africa Litigation Centre. Click on summary and judgment for read the original blogpost and the full judgment.

In March 2015, the applicant was arrested by police whilst on his way to the market where he works as a street vendor. He was charged with the offence of being a rogue and vagabond. Section 184(1)(c) of the Penal Code provides that “every person in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose, is deemed a rogue and vagabond.” The offence of being a rogue and vagabond exists in the same wording in the Penal Codes of many African countries and dates back to the era when these countries were subjected to British colonial rule, including Nigeria, Gambia, Zambia, Uganda, Botswana, Seychelles, and Tanzania.
 
 
The SADC Model Law: A step in the right direction
By Christina Nyandoro
On the 3rd of June 2016, the Southern African Development Community (SADC) Parliamentary Forum adopted a Model law to end child marriages and protect those already in the marriage. The development underlines the fact that child marriage is a national, regional and global concern. Statistically, Southern Africa countries such as Swaziland and South Africa have a low prevalence rate of child marriages at 6% and 7% respectively. Malawi and Mozambique on the other hand have 50% and 56% respectively making them the countries with the highest rates of child marriages in the SADC region. This is mainly due to economic pressures and social and cultural traditions which continue to drive families to marry off their daughters at a very young age. 
 
A Matter of Justice: Sorry state of justice outside the media’s eye
By Carmel Rickard
When one local magistrate sarcastically refers to an accused as a ‘cowardly moffie’ (homosexual) during sentencing, and others in the same jurisdiction are taken to task by the High Court for equally improper conduct; when prosecutors from that area are consistently said to be failing the public in their poor handling of investigations, then it is high time to pay attention: what exactly is happening to justice in South Africa out of the eye of the media?
 
JIFA, A joint initiative of the Democratic Governance and Rights Unit, University of Cape Town, ICJ-Africa and The Southern African Chief Justices' Forum