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African Law Review
VOLUME 1 • ISSUE 3 • 2018
A Closer Look
Customary
marriage
in practice
In depth: The
prevention
of Organised
Crime Act
Corporal
punishment
To spank or
not to spank?
Drunk drivers
BEWARE
A tribute to the flames
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African Law Review � Volume 1 � Issue 3 � 2018
C ON TE N TS PA GE 3
23
Volume 1 � Issue 3
African 4 Editorial note
Law
BLA-LEC BUZZ
5 Chair’s word
The preamble to the Constitution
Review
6 Legal training
BLA DESK
8 BLA-History: 2nd series
By Deputy Judge President Phineas Mojapelo
Physical Address 10 The BLA, out and about
BLA-Legal Education Centre
1st Floor, Kingsmead Building
The Oval Office Park
IN DEPTH
Cnr Sloane and Meadowbrook Lane 12 The land reform agenda
Bryanston, 2021 By Sphesihle Nxumalo
Postal Address
15 Prevention of Organised Crime Act
P.O. Box. 70557 By Justice Legoabe Willie Seriti
Bryanston 18 Prescribed debt
2021 By Adv. Fhumulani Mbedzi
Views expressed in the ALR do not necessarily
20 Decolonising South Africa
represent the views of the BLA-LEC or the Black By retired Judge Albie Sachs
Lawyers Association. Acceptance of material 23 Understanding customary marriages
for publication is not a guarantee that it will in By Inkosi Sipho Mahlangu
fact be included in a particular issue since the
depends on the space available. Views and
26 Protect your intellectual property
opinions of this journal are, unless otherwise By Ursuley Matjeke
stated those of the authors. Editorial opinion
or comment is, unless otherwise stated, that LEGAL EXCELLENCE
of the editor and publication thereof does not
indicate the agreement of the BLA-LEC, unless
28 Pioneering Heads of Court: Specialised Courts
so stated. Contributions may be edited for
clarity, space and/or language. The appearance LAW REPORT
of an advertisement in this publication does not 32 The Transkei Marriage Act
necessarily indicate approval by the BLA-LEC
for the product or service advertised.
By Adv. Gugu Nkosi
____________________
OPINION
Editorial Collective 34 Drunk driving proposed law
Retired Judge President HMT Musi (Convenor)
Mpho Sithole (Editor)
By Howard Dembovsky
Andisiwe Sigonyela (Acting Director) 37 Corporal punishment
Fhumulani Mbedzi (Researcher) By Andre Lewaks and Suleiman Henry
Thandi Bees (Librarian)
TRIBUTES
Letters to the editor
39 Bantu Stephen Biko: A symbol beyond his lifetime
Email:mpho@blalec.co.za
By Nkosinathi Biko
Distribution and subscription 41 Justice Tholakele Hope Madala
Fhumulani Mbedzi By Adv. Dumisa Ntsebeza SC
Tel: 011 403 0802 Fax: 011 403 0814
Email:fhumulani@blalec.co.za
IN THE NEWS
Publisher and Distributer 43 South Africa’s new NDPP
BLA-LEC By BLA-LEC desk
© Copyright
4 ED I T O RI AL N O T E
2018, what a year!
So many events shook the year into transformation and
action.
of living seems to be shooting up in
Most of those events revolved one direction. Besides that, the year
around aspects of the South African 2018 came with a list of achievements
Constitution - the highest law in the among them is the Black Lawyers
land. Association – Legal Education Centre
In Issue 3 of the African Law (BLA-LEC) training close to 2000 legal
Review, sections of the country’s professionals this year
Constitution come under focus. The
Constitution serves as the foundation for
a democratic country, free of oppression The
and discrimination. In accordance
with the Bill of Rights, as enshrined in
Constitution
the Constitution, every South African serves as the Mpho Sithole, Editor
citizen has the inalienable right to life, foundation for a world. If section 25 is to be amended it
equality, human dignity and privacy.
Signed into law by former President
democratic country, would become a defining moment in the
Nelson Mandela in Sharpeville on free of oppression history of our constitutional democracy,
marking the first amendment of the bill
10 December 1996, the Constitution and discrimination. of rights.
become operational on 4 February 1997.
It was a triumphant occasion but a long Customary marriages got the
walk to an inclusive Constitution. It had We cannot ignore momentous country talking, especially following
been amended 17 times thereafter. changes like the appointment of a the death of rapper Robert Tsambo
Each new change aimed to new head of the National Prosecuting known as HHP. Within this issue the
deepen democracy and strengthen the Authority, Advocate Shamila Batohi national house of traditional leaders
independence of the judiciary. who’s tasked with restoring public gives guidelines on the application of
Prior to this significant day, South confidence in the criminal justice customary law under the guide of the
Africa had several other constitutions; system. constitution.
the 1910 Constitution granted the This is also the year, President Cyril As the festive season is upon
country independence from Britain, Ramaphosa announced a decision to us, irrespective of your levels of
the 1961 Constitution declared the amend the Constitution to expropriate intoxication, yes drunken driver you too
country a republic and the 1983 land without compensation following a have rights as explained in the article
Constitution established a tri-cameral series of nationwide hearings. The land No provision for drunken driving jail
parliament. As important as they issue will continue to be a hot topic, so time by Howard Dembovsky. On that
were, the Constitutions ignored the hot that US President Donald Trump tipsy note, as we all head out in different
everyday rights of black South Africans, startled South Africans on August 23 destinations to say Happppppyyyyyy,
barring them from voting and political – with a tweet that he had instructed The celebrated South African
participation. his secretary of state to investigate the constitution provides a lovely closing
In an article by retired Judge Albie country. Without any proof to prove remark;
Sachs, Decolonizing South Africa he the claim, Trump deliberately became
explains that the key struggle within a victim of fake news claiming the May God protect our people.
the constitution-making process was South African government had started Nkosi Sikelel’iAfrika.
to ensure that it would be made by a seizing land from white farmers. The Morena boluka setjhaba sa heso.
Constitutional Assembly chosen by land debate is broadened in an opinion God seën Suid-Afrika.
the whole nation on a one person one piece by Attorney Sphesihle Nxumalo, Mudzimu fhatushedza Afurika.
vote basis instead of self-appointed who questions the Constitutionality Hosi katekisa Africa
negotiators under apartheid conditions. of the land reform agenda. The South
As the year comes to a close, we’re African Constitution has been hailed
all fatigued more especially as the cost as one of the most progressive in the
African Law Review � Volume 1 � Issue 3 � 2018
C H AI R ’S WO RD 5
The preamble
to the Constitution
By Adv. Mc Caps Motimele SC: BLA-LEC Chairperson
The Preamble to our Constitution is concise, commemorative and edifying. It contextualises
our constitutional project with enlightening exactitude. In simple terms, it frames the
constitution with a commentary of hope, vision, transformation.
Correctly observed, it’s part of a poem, part of a song and render nation building an elusive dream.
more subtly, a national prayer. It opens with a significant The Preamble acknowledges the evils of apartheid and
phrase “we the people of South Africa” , to signify our makes a clarion call to all, to honour those who suffered
collective resolve to build a united South Africa premised on for justice and freedom in our land and unite regardless of
democratic values and ideals. diverse backgrounds and cultural heritage. Indeed, South
It is regrettable that society at large knows very little about Africa belongs to all who live in it , united in our diversity.
the Preamble to the constitution and its profound opening. What we ought to learn from the text of the Preamble is
Despite its potential to serve as an educational clause and that it is a foundation for a peaceful co-existence, healing,
instil a sense of national consciousness , policy-makers transformation, pursuit of justice, tolerance, reconciliation and
appear to overlook the essence of the preamble. Comparative nation building etc...
constitutional law teaches us that preambles to constitutions Our preamble succinctly proclaims that the sovereign
have played crucial roles in both law and policy making power rest with “ we the people of South Africa’’. The “ we ”,
throughout the world. demonstrates our common identity as a nation. The preamble
outlines our objectives in adopting the constitution such as;
Justice Albie Sachs in S v Mhlungu 1995 (7) BCLR 793 (CC)
to heal the divisions of the past and establish a society based
correctly observed:
“ The Preamble in particular should not be dismissed as a mere on democratic values , social justice and fundamental human
aspirational and throat-clearing exercise of little interpretive value. rights.
It connects up, reinforces and underlies all of the text that follows. Concerted efforts must therefore be made to ensure that
It helps to establish the basic design of the Constitution and every South African understands this fundamental basis of
indicate its fundamental purposes. This is not a case of making the our constitutional scheme. Policy makers have a critical role
Constitution mean what we like, but of making it mean what the to play. For example, in our schools, learners must be taught
framers wanted it to mean; we gather their intention not from our to recite the preamble. This will constantly fortify their
subjective wishes, but from looking at the document as a whole” consciousness and understanding of the country’s history,
And in City of Tshwane Metropolitan Municipality v Afriforum present and future aspirations. For example , in the United
and Another [2016] ZACC 19, Chief Justice Mogoeng States of America , learners are required to pledge allegiance
correctly remarked: to the US flag each morning. South African leaners may
“ A preamble is after all a succinct expressionary statement that well be taught to pledge their allegiance to the Preamble and
sets out a constitution’s purpose and underlying philosophy. By the constitution in its entirety. This will serve as a powerful
design and like all others, our Preamble captures the essential affirmation, planting the seed and spirit of reconciliation,
principles by which we the people seek to govern our affairs. transformation and peaceful co-existence in their hearts. The
It is such a crucial part of our Constitution that, if only every strength of the Preamble lies not only in the legal sphere but
citizen were to internalise it and live according to its terms, our also in its social function and effect, ours is an integrative
aspirations would most likely be expeditiously realised.” preamble. It fosters integration by forging common identity,
Although South Africa achieved or made major strides in the drawing people together, contributing and promoting social
struggle for freedom and quality, the vestiges of colonialism cohesion. Surprisingly, despite its importance, the study of
and apartheid are still evident. the preamble remains a neglected subject in the South African
These are pernicious systems. Racism and other despicable constitutional theory and receives scant attention in literature
tendencies which epitomise racial intolerance are still as well. It is cause for concern that law professors rarely teach
prevalent, in all sectors of society. This is a clear indication and that courts rarely cite the preamble. Yet I remain hopeful,
that the preamble is not yet fully internalised. The ideal that in time the preamble will become the credo of our young
society envisaged in the preamble of the constitution will society; grounding morality, shaping dreams and the pursuit
continue to elude us as a people until such time we recognise of happiness. As Martin Luther King Jr once said, the time is
its importance in nation building. To negate this reality will always ripe to do right.
African Law Review � Volume 1 � Issue 3 � 2018
6 L EG AL T RAI N I NG
Empowering legal minds
By Andisiwe Sigonyela, Acting Director-BLA-LEC
Labour Lawyer, Madoda Nxumalo teaching one of the TAT sessions in Namibia.
Continuing legal education and training is at year 2018. We aim to expand our reach in the year 2019.
We would like to extend our sincerest gratitude to all our
the centre of the Black Lawyers Association- sponsors , instructors and participants who made it all possible.
Legal Education Centre goals. Our training this year also extended beyond South African
borders, visiting Windhoek, Namibia.
We are dedicated to providing the legal and allied professions Some of our well-designed programmes and attendance in
with advanced skills and information, ensuring that they excel the fourth quarter of 2018 are listed as follows:
in their professions.
Our aim is to enrich and enhance their competitive edge to TRIAL ADVOCACY TRAINING (TAT)
benefit the very ordinary members of society. This training is designed to ensure trial lawyers present a good
Increasing the number of black lawyers is also of high on argument before the courtroom. The programme helps lawyers
the agenda of the BLA-LEC. acquire and develop the skills and confidence they need to
Close to 2000 lawyers in various facets of the law benefited become competent litigators.
from our diverse and enriching training programmes in the
Attorneys And Advocates
TRAINING DATE AREA NUMBER OF DELEGATES
Advanced Trial Advocacy Training 19 – 24 November 2018 Namibia 30 attended
African Law Review � Volume 1 � Issue 3 � 2018
L E GAL TR A INING 7
Universities
Unisa 09 – 10 October 2018 Durban 17 attended
Unisa 09 – 10 October 2018 Nelspruit 11 attended
Unisa 09 – 10 October 2018 Johannesburg 14 attended
Unisa 11 - 12 October 2018 Pretoria 30 attended
Walter Sisulu University 11, 12 & 13 October 2018 44 attended
University of Fort Hare 18, 19 & 20 October 2018 69 attended
University of the Western
25, 26 & 27 October 2018 13 attended
Cape
PLT school(s)
Bloemfontein PLT School 04, 05 & 06 December
Bloemfontein 21 attended
(night class) 2018
Commercial Law Programme Training (CLP)
This programme covers important areas such as purchase and sales agreements, mergers and acquisitions, dispute resolution and
other significant areas of commercial law.
TOPIC DATE AREA NUMBER OF DELEGATES
Competition Law and
10 November 2018 Durban 19 delegates attended
Merger Filing
Continuing Legal Education (CLE)
This programme is aimed at primarily building capacity and enhancing the skills of lawyers. It assists in making the law accessible
to all black and or historically disadvantaged legal practitioners in South Africa.
TOPIC DATE AREA NUMBER OF DELEGATES
Prospecting & Mining Law 28 November 2018 Polokwane 15 delegates attended
Advocate Helen Ngomane training Nelson Mandela University students North West University students listening attentively as training is underway
African Law Review � Volume 1 � Issue 3 � 2018
8 BL A D E S K
2nd series: The History of the
Black Lawyers Association
By Deputy Judge President Phineas Mojapelo, South Gauteng High Court
The year of youth power and student 16 June 1960
power. Repression, shootings, blood, maiming
On June 16, the youth wrote into and crippling injuries. Howh…!!!?
the South African calendar and in our What is wrong with the number 6, and
collective conscience. They turned particularly 16 in our history: 1960 –
the tide of the country’s history and Sharpville massacre; the 1960’s - the
liberation movement. genesis of the Rivonia trial; 16 June
This was also a year of extreme 1976 – Soweto uprisings and students’
apartheid police brutality against massacre, 16 August 2012 – the
unarmed and defenceless children whose Marikana massacre!
only crime was to insist on their rights. Back to 1976. The students uprising
This is the second in a
series of articles that seeks
to trace the formation and
history of the Black Lawyers
Association (BLA). The
writer shall welcome any
comments, particularly by
lawyers who were part of the
process.
The coming together of the Black
Lawyers Group in 1977 and the ultimate
formation of BLA in 1978/9 must be
seen within the context of the political
atmosphere that prevailed at the time.
The year before had seen the student
march of June 16, 1976, which started
in Soweto. On the fateful day, the South
African Police force shot and killed Being black was criminalised by the
more than 20 black school children and apartheid law as blackness became
pupils; they also injured and arrested
many. All in Soweto, all on that very an element of certain crimes.”
day. It was news that shocked the world.
The year 1976
African Law Review � Volume 1 � Issue 3 � 2018
BL A DESK 9
had spread throughout the country the state had to lead witnesses who were essentially for community legal work to
resulting in the arrest and detention then cross examined. The full proper defend the human rights of other black
of many people. Many more children procedure had to be followed, in each people, despite the denial of such rights
were killed in various other parts of and every case right up to sentencing under the laws of the time.
the country as students’ uprisings and if found guilty. There was often one Black lawyers had to organise
youth power spread like an unstoppable magistrate and one prosecutor a day, themselves to take turns to defend
inferno in the days that followed. The between them they processed many offenders. The system was to get the
political atmosphere throughout the offenders in a day. mandate of each and every arrested
country became highly charged. person and to defend them all or most of
Up until then, there was no formal them on a particular day.
structure of black lawyers in the country. The black lawyers did this for no
Many of them would however from The best fee, there was no legal aid system for
time to time come together as a group to strategy was pass offenders. Seeking funding for
discuss common problems and to defend those one represented would lead to
black people who were prosecuted
to be ready to proceed their cases being postponed whilst
under pass laws for exercising their birth with the case. Or they remained in custody. That was
rights in the country of their birth. on another day, the undesirable.
Under these laws black people were The best strategy was to be ready to
arrested and brought before courts for group of black lawyers proceed with the case.
offences such as: (a) failing to produce would change tact and On other days , the group of black
a “dom pass” upon demand by the lawyers would change tact and apply
police officers; (b) entering or remaining apply for bail for each for bail for each and every one that was
within a prescribed area without a and every one that brought to court. Prosecution would
permit; (c) loitering, and (d) many other never know what was coming on any
offences for which only black people was brought to court. day the lawyers came.
could be prosecuted. Being black was Prosecution would The element of community service
criminalised by the apartheid law as did not stop with the formation of the
blackness became an element of certain
never know what was BLA as an association. On the contrary,
crimes. coming on any day a basis was created around which people
The lawyers would from time to the lawyers came.” could organise themselves for that
time organise themselves in groups to purpose.
defend these pass law offenders and The system that started in
thus gem the system. In the absence Johannesburg was replicated whenever
of legal representation, the pass law With black lawyers lined up at black lawyers opened offices in other
offenders would often be brought court to defend each and every case towns, and the approach of working
before the special pass courts and would called on any day, prosecution of pass together in defence of pass offenders
be tried and sentenced summarily to offenders en-mass became impossible. was extended to victims of other
imprisonment with the option of a fine. State witnesses were often not available, apartheid laws.
Those who pleaded not guilty would and if available they would often not The BLA from the beginning
often be remanded in custody on several remember who arrested who, where committed itself to advance and
instances. Pleading guilty was thus a and under what circumstances. A large promote respect for the rule of law and
way of getting out of custody at the number of black people would often the protection of human rights.
earliest appearance in court. People have been picked up in one swoop
were pressurised and manipulated to all over the city on a big truck called
plead guilty for no crime. The system ‘khwela-khwela’.
of prosecuting people en-mass was Remembering where each was
essential for the enforcement of the pass picked up was often a nightmare, which
law offences, for which people would police had failed to anticipate. The
often be picked up in the street as a form alternative was for them to fabricate
of harassment. evidence, which many did.
Black lawyers would often clock Fabricated evidence is a nice
up the system, in their organisational meal for a seasoned cross examiner.
efforts to defend people. The system was gemmed whenever
In the presence of a legal black lawyers appeared to defend pass
representative, proper procedures had offenders in a particular court.
to be followed: charges had to be read There was thus prior to the formation of
and interpreted to each accused. He or the BLA an informal ad hoc organisation
she had to plead to the charges and then of black lawyers. The formation was
African Law Review � Volume 1 � Issue 3 � 2018
10 BL A D E S K
OUT and ABOUT
BLA
The GM Pitje Memorial
AGM 2018
African Law Review � Volume 1 � Issue 3 � 2018BL A DESK 11
Social Responsibility
19 October 2018, Cape Town,
Silikamva High School
African Law Review � Volume 1 � Issue 3 � 201812 IN D E P T H
The Land Reform Agenda
By Sphesihle Nxumalo, Baker McKenzie Associate Attorney
Source: https://theconversation.com/
©Siphiwe Sibeko/Reuters
Is there a dichotomy between the contemplated amendments to the Constitution and the
constitutional fabric?
If there ever was a Methuselah1 of grand Constitution is one in
questions around the law reform agenda which extinction of rights The Constitution
in its current formulation, this is it. in property can only be
On 15 November 2018, the Joint constitutional if such
guarantees the right to
Constitutional Review Committee is against the payment compensation, which is
(JCRC) crossed the Rubicon when of just and equitable just and equitable in the event
it adopted its report, calling for the compensation.
amendment of section 25 of the In other words,
that property is expropriated.
Constitution. the Constitution
This was to make it possible for guarantees the right
government to expropriate land without to compensation, which is just and transformative social justice.
compensation in the public interest, equitable in the event that property But when we steer clear of the
signalling a momentous move from the is expropriated. It further states that socio-moralistic viewpoint, we are left
catatonic constitutional dispensation expropriation can only be for a public to answer the sensible and preeminent
to a transformative constitutional purpose or in the public interest. The question of whether the contemplated
dispensation. contemplated amendments to section amendments to allow for expropriation
The status quo of the expropriation 25 seek to overcome the restrictions of land without compensation are in
regime under section 25 of the imposed by the very section 25. The conformity with the Constitution.
1 According to the Holy Bible, Methuselah is said to
land reform agenda is without a doubt There is a small but significant wave
have lived for nine hundred and sixty-nine years a key policy objective, consonant with of distress that the JCRC has just set in
(Genesis 5:27).
African Law Review � Volume 1 � Issue 3 � 2018I N DEPTH 13
full swing a socialist carousel that will arbitrariness of the ANC government’s
trump the rule of law in its wake. There is decision to pursue land reform in the
There is some comfort (albeit manner contemplated, and indeed the
dubious) in that the opponents and
an urgent JCRC’s decision, are the extensive
proponents of land reform all sing from imperative consultations and public hearings that
the same hymn sheet of the sanctity of to underwrite the have taken place. Due to the sweeping
the rule of law as a founding value of changes that will be brought about
the Constitution and not mobocracy.
improvement in the by the contemplated amendments,
Transformative social change is the quality of life of the government has certainly gone
major divide. poor and to reduce overboard in following due process
The ANC government’s economic on the issue as ours is a participatory
philosophy comprises a social
inequalities as white democracy.
democratic approach to social reform. minorities and black In debating the constitutionality of
There is an urgent imperative to South Africans are at a land reform, one cannot lose sight of
underwrite the improvement in the the Preamble to the Constitution. It is
quality of life of the poor and to reduce
saddle point.
convenient to set out its telling words:
inequalities as white minorities and
amend it are met? The answer is yes, but “We, the people of South Africa,
black South Africans are at a saddle
that’s not the end of it – the amendments recognise the injustices of our past;
point.
would still need to pass constitutional honour those who suffered for justice
White minorities at a relative
muster to keep us farther away from a and freedom in our land…” and
maximum and black South Africans at a
dystopian world, where political forces thus adopted the “…Constitution as
relative minimum to economic means of
and ruling parties mold the Constitution the supreme law of the Republic so
production, including access to land and
into what they want it to be from time to as to heal the divisions of the past
standard of life.
time. and establish a society based on
The land reform agenda in its
But there is no defined start democratic values, social justice and
current formulation is a mechanism
and end point to the inquiry – the fundamental human rights; lay the
in which government seeks to rectify
constitutionality of texts is contextual foundations for a democratic and
this socio-economic disparity. Its
and is informed primarily by the rule open society in which government is
mainly caused by large scale historical
of law. The rule of law does not have a based on the will of the people and
dispossessions of blacks, by way of land
precise definition, and its meaning can every citizen is equally protected by
acquisition without compensation and
vary between different nations and legal law; improve the quality of life of all
redistribution.
traditions. citizens…”.
Section 2 of the Constitution (the
so-called “supremacy clause”) is non- Generally, however, it can be
understood as a legal-political regime The text of the Preamble supports a
esoteric , it states; “The Constitution is
under which the law restrains the flexible system of government with
the supreme law of the Republic; law or
government by promoting certain the capacity of passing laws necessary
conduct inconsistent with it is invalid,
liberties and creating order and to meet the needs and challenges of
and the obligations imposed by it must
predictability regarding how a country contemporary South Africa while at the
be fulfilled.”
functions. In the most basic sense, the same time embedding certain liberties
This provision does not invalidate
rule of law is a system that attempts deemed essential by a consensus of We,
amendments to the Constitution.
to protect the rights of citizens from the people of South Africa. If the rule
Indeed, the supremacy of the
arbitrary and abusive use of government of law means anything, it means that
Constitution does not render it
power. This begs the question: how changes to the Constitution should come
unchangeable and section 74 is in fact
do we know what constitutes arbitrary from a strong consensus of We, the
the repository of the National Assembly
and abusive use of government power? people of South Africa acting pursuant
and National Council of Provinces’
That is the question Professor Cora to, inter alia, the ideals of healing the
powers to amend the Constitution.
Hoexter tackles with didactic insight divisions of the past and establishing a
To amend section 25 (which is a Chapter
in Administrative Law in South Arica. society based on social justice and the
2 provision) will require the support
Prof. Hoexter posits that at common improvement of the quality of life of all
of at least two thirds of the members
law, action is said to be arbitrary when citizens, amongst other things.
of National Assembly and six of nine
it is irrational or senseless, without Whilst I do not discount the real
provinces in the National Council of
foundation or apparent purpose. Indeed, prospect of a constitutional challenge
Provinces.
our whole constitutional heritage to the amendment of section 25 of the
Does this mean virtually any
rebels at senselessness of decision and Constitution, the very Constitution
provision of the Constitution can be
policy-making by government, and this is supposed to represent a consensus
amended as long as the thresholds to
case is no exception. What obviates the among We, the people of South Africa,
African Law Review � Volume 1 � Issue 3 � 201814 IN D E P T H
Maintaining the status quo will mean that 22 years later, the
Constitution serves as a façade for covering past iniquities than as an
instrument for remedying them.
and not the policy preferences of a few reform is a key policy objective, the transformation swings in favour of a
judges. Furthermore, at some point we courts could declare the contemplated Constitution that seeks to address the
have to stop philosophical tap-dancing amendments as unconstitutional in urgent needs and values of a majority
and reading texts in isolation of their the event that there is a breach of the of the South African society – this is
historical contexts. For a moment, I constitutional provision establishing transformative constitutionalism. As
found myself in the unfortunate position the amendment powers and thresholds. already stated, the Constitution is the
of the curate given a stale egg at the When our founding fathers forged the work of We, the people, and We, the
bishop’s table; I considered parts of Constitution, they were well aware of people did not produce a ‘frozen-in-
the argument by opponents of land the social and economic urges in the time’ Constitution. I must emphasise
reform that amending the Constitution country. But they were anxious that we that it cannot be that re-engineering
will trump fundamental human rights should not hurry to achieve socialism the socio-economic dynamics of the
(i.e. property rights) persuasive, others instantly overnight. They would have South African society to address the
not. Assuming in their favour, the made it clear in unequivocal terms conspicuous grim social disparities
question then arises, if We, the people had the intention been that a Chapter 2 between Whites and Blacks, by
determined what fundamental rights provision such as section 25 cannot be abandoning obsolete systems and,
are deserving of constitutional sanctity, amended in the manner contemplated indeed constitutional provisions
thus protection from state interference, today because to do so would be, for that continue to perpetuate socio-
then what does that mean of the texts of lack of a better word, preposterous. economic disparities, borders on
the Constitution – does it really make After all, social and economic unconstitutionality.
any sense to sanctify and ‘freeze’ the conditions can be altered by legislative The “evolution” of constitutionalism
texts of the Constitution at some point amendments. did not begin at the World Trade
in time? Well, it does and does not. Whilst I cannot say the die has Centre in Johannesburg and did not
The contemplated amendments will been cast yet, the JCRC’s decision end in Sharpeville, Vereeniging.
represent the normative consensus of the clearly jibs to the monumentality of Thus, we have to ask with respect to
South African society, and this does not the Constitution, and ushers in an contemporary constitutional issues,
suggest the violation of human rights, era where section 25 has no value in particularly insofar as accelerating land
rule of law or any other highly popular the transformative democratic South reform is concerned, what really is a
provisions of the Constitution. Africa anymore. The contemplated sensible response? When the text of the
Maintaining the status quo will mean amendments are indeed not reflective of Constitution proves unable to assimilate
that 22 years later, the Constitution the subjective moral and philosophical restorative justice and transformative
serves as a façade for covering past preferences of the ANC government, narratives, people do create new texts
iniquities than as an instrument for rather in a democratic and socially – they amend the Constitution. This
remedying them. Considering that land crippled society, the pendulum of cannot be unconstitutional.
African Law Review � Volume 1 � Issue 3 � 2018I N DEPTH 15
The Prevention of
Organised Crime Act
By Justice Legoabe Willie Seriti, Supreme Court of Appeal Judge
The legislature enacted s 35 of the Criminal which was used for the purpose of or in connection with
the commission of the offence in
Procedure Act 51 of 1977 (CPA)
question or for the conveyance
as a mechanism to combat At the outset we or removal of the stolen property,
crime and alleviate its scourge must remind and which was seized under the
on society. In essence, s 35 deals ourselves of provisions of this Act, forfeited to
the State:. . . . ”
with forfeiture of articles to the the nature of the In terms of these provisions, a court
State and is stated in the CPA as legislation we are can declare an article or instrument
follows: concerned with. POCA utilised in the commission of an
was enacted in pursuit offence forfeited to the State only
after conviction of an accused. In
“35 Forfeiture of article to State of legitimate and the absence of a conviction, the
(1) A court which convicts an accused of any
offence may, without notice to any person,
important government court cannot declare any instrument
declare- purposes of combating utilised in the commission of the
(a) any weapon, instrument or other serious organised offence forfeited to the State. This is
the position even if the accused was
article by means whereof the offence in crime and preventing acquitted on a technicality and not
question was committed or which was used criminals from on the merits.
in the commission of such offence; or
(b) if the conviction is in respect of an
benefiting from the Section 35(2) provides that a court
offence referred to in Part 1 of Schedule proceeds of their which convicts an accused or which
finds an accused not guilty of any
2, any vehicle, container or other article crimes. offence, shall declare forfeited to
African Law Review � Volume 1 � Issue 3 � 201816 IN D E P T H
the State any article seized under have the potential to inflict social damage;
the provisions of this Act which is ‘We should and (b) South African common law and
forged or counterfeit or which cannot statutory law fail to deal adequately with
lawfully be possessed by any person.
embrace criminal activities and also fail to keep
There are certain articles mentioned POCA as a friend pace with international measures aimed
at dealing effectively with such activities.
in this subsection which can be to democracy, the Its scheme seeks to ensure that no person
declared forfeit to the State even if
the accused is acquitted of the charge
rule of law and convicted of an offence benefits from the fruits
of that or any related offence, and to ensure
he or she was facing. constitutionalism that property that is used as an instrumentality
In terms of the provision of s of an offence is forfeited.”
and as indispensable
35(2) the court has an obligation to In National Director of Public
declare forfeited to the State articles in a world where the Prosecutions v Elran 2013 (1) SACR 429
therein mentioned. institutions of State (CC); 2013 (4) SACR 429 (CC); 2013 (4)
In order to improve or strengthen
the State’s efforts to combat
are fragile, and the BCLR 379 (CC) para 22 Jafta J said:
“At the outset we must remind ourselves of
crime, the legislature enacted the instruments of law the nature of the legislation we are concerned
Prevention of Organised Crime Act sometimes struggle with. POCA was enacted in pursuit of
121 of 1998 (POCA). legitimate and important government purposes
In its introduction POCA states for their very survival of combating serious organised crime and
its purpose and aim as being to against criminals who preventing criminals from benefiting from the
proceeds of their crimes. Among the arsenal
combat organised crime, money
laundering and criminal gang
subvert them’. of tools employed to achieve these objectives
is the authorisation of seizure of property and
activities and to provide for the civil restraint orders. These orders authorise state
forfeiture of criminal property that officials to seize property suspected to be the
has been used to commit an offence. proceeds of crime or an instrumentality of an offence.”
Its preamble states amongst others - that no person should
benefit from the fruits of unlawful activities, nor is any person Chapter 6 of POCA deals with Civil Recovery of Property and
the relevant sections are ss 37-62. It is divided into Parts 1 to 4.
entitled to use property for the commission of an offence. The
Part 1 contains only s 37. This section provides that
preamble further states that legislation is necessary to provide
proceedings under this chapter are civil proceedings and not
for a civil remedy for the preservation, seizure and forfeiture
criminal proceedings. It further states that rules of evidence
of property which is derived from unlawful activities or is
applicable in civil proceedings apply to proceedings under this
concerned in the commission or suspected commission of an
chapter.
offence.
Part 2 which contains ss 38 to 47 deals with preservation of
In National Director of Public Prosecutions v Mohamed
property. Section 38 deals with preservation of property orders
NO & others 2003 (1) SACR 561 (CC); 2003 (4) SA 1 (CC)
and reads partly as follows:
para 16, when dealing with POCA, the Constitutional Court
said: “Preservation of property orders
“The present Act (and particularly Chapters 5 and 6 thereof) (1) The National Director may by way of an ex
represents the culmination of a protracted process of law reform parte application apply to a High Court for an order
which has sought to give effect to South Africa’s international prohibiting any person, subject to such conditions and
obligation and domestic interest to ensure that criminals do not exceptions as may be specified in the order, from dealing
benefit from their crimes. . . .” in any manner with any property.
Organised crime has become a burgeoning international (2) The High Court shall make an order referred to in
problem and countries such as ours are particularly susceptible subsection (1) if there are reasonable grounds to believe
to organised crime groups. It is generally accepted that that the property concerned-
ordinary criminal law measures are ineffective in effectively (a) is an instrumentality of an offence referred to in
dealing with organised criminal syndicates, thus necessitating Schedule 1;
extraordinary measures such as civil forfeiture in terms of (b) is the proceeds of unlawful activities; or
chapter 6 of POCA. (c) is property associated with terrorist and related
In Prophet v National Director of Public Prosecutions activities.
2006 (2) SACR 525 (CC) para 59; the Constitutional Court (3) A High Court making a preservation of property order
said: shall at the same time make an order authorising the
“The POCA is an important tool to achieve the goal of reducing seizure of the property concerned by a police official,
organised crime. Its legislative objectives are set out in its and any other ancillary orders that the court considers
Preamble which observes that: (a) criminal activities present appropriate for the proper, fair and effective execution of
a danger to public order and safety and economic stability and the order.”
African Law Review � Volume 1 � Issue 3 � 2018I N DEPTH 17
Schedule 1 of POCA lists various serious offences, for instance In an instance where more than one potential forfeiture
murder, rape, kidnapping, extortion, perjury, drug offences, process exists in a given instance, it must be left up to the
illicit dealing or possession of precious metals or precious National Director and his/her officials to determine which
stones, etc. would be the most effective and appropriate procedure to
When the National Director approaches the Court in terms adopt.
of s 38 by way of an ex parte application, the application will See Ex Parte National Director of Public Prosecutions 2018
be set down as provided for in Uniform rule 6 (4)(a) and shall (2) SACR 176 (SCA) para 28.
be heard in camera. Section 50 of POCA grants the court a discretion and not
Section 39 requires the National Director to give notice of an obligation to grant a forfeiture order. The discretion must be
the order to all persons known to the National Director to have exercised judicially and attention should be given to the nature
an interest in the property which is subject to the order and to and value of the article. The role played by the article in the
publish a notice of the order in the Gazette. commission of the offence and the effect of the forfeiture on
Any person who has an interest in the affected property the affected person.
may, if they wish, enter an appearance to defend which shall Whether or not the accused is convicted of an offence,
be accompanied by an affidavit. any article seized from him which is found to be forged or
This shall state the nature and extent of his or her interest counterfeited will be forfeited to the State.
in the property concerned and the basis of the defence upon If no criminal proceedings are carried out in connection
which he or she intends to rely in opposing a forfeiture order with the article that has been seized, and the article is not
or applying for the exclusion of interests from the operation needed as evidence in any court, then it will be returned to
thereof. the person from whom it was seized. If no such person is
Section 40 deals with the duration of preservation of available, then the article will be handed over to the State.
property orders. It provides that a preservation order shall In Prophet v National Director of Public Prosecutions
expire 90 days after the date on which notice of the making 2005 (2) SACR 670 (SCA) paras 30 and 37 it was said that a
of the order is published in the Gazette. The order can be court may decline to make a forfeiture order if the particular
rescinded before the expiry date. deprivation is disproportionate to the crime. The owner of the
Part 3 which contains ss 48 to 57 deals with forfeiture property needs to place before the court the necessary material
of property. Section 48 provides that if a preservation of for a proportionality analysis before the court.
property order is in force the National Director may apply POCA particularly Chapters 5 and 6 represent the
to a high court for an order forfeiting to the State all or any culmination of a protracted process of law reform which has
of the property that is subject to the preservation order. The sought to give effect to SA’s international obligation and
National Director is obliged to give at least 14 days’ notice of domestic interest to ensure that criminals do not benefit from
the application to every person who entered an appearance to their crimes. Chapter 5 (compromising ss 12 to 36) provides
oppose the granting of the order. for the forfeiture of the benefits derived from crime but
In terms of s 50 of POCA the high court shall grant a its confiscation machinery may be invoked only when the
forfeiture order if the court finds on a balance of probabilities ‘defendant’ is convicted of an offence. Chapter 6 (comprising
that the property concerned is an instrumentality of an offence ss 37 to 62) provides for forfeiture of the proceeds of and
referred to in schedule 1 or is the proceeds of unlawful instrumentalities used in crime, but is not conviction based.
activities or is the property associated with terrorist and related Within 90 days of the grant of the preservation order the
activities. National Director must apply for the forfeiture of the property.
The validity of the order is not affected by the outcome of Section 40 provides that a preservation of property order shall
the criminal proceedings. As stated earlier s 35(1) of the CPA expire 90 days after the date on which notice of making the
entitles the Court after conviction of an accused to declare order is published in the Gazette.
forfeit to the State any property which was used in connection To conclude, in National Director of Public Prosecutions
with the commission of any offence. v Elran 2013 (1) SACR 429 (CC) para 70 it was put as
Unlike the forfeiture provisions of POCA, s 35 of the CPA follows:
entitles the Court to declare forfeit to the State any property ‘We should embrace POCA as a friend to democracy, the rule of
which was used in the commission of any offence. law and constitutionalism and as indispensable in a world where
In terms of POCA, the offence involved must be one the institutions of State are fragile, and the instruments of law
stipulated in Schedule 1 thereof, which offences are generally sometimes struggle for their very survival against criminals who
serious offences. subvert them’.
In my view, the forfeiture provisions contained in s 35
of the CPA are easier to invoke after the conviction of the
accused, but prior to any conviction or in the absence of a
conviction, the provisions of s 50 of POCA offers a speedy
and effective remedy to the National Director of Public
Prosecutions.
African Law Review � Volume 1 � Issue 3 � 201818 IN D E P T H
When does a debt prescribe?
By Adv. Fhumulani Mbedzi, BLA-LEC Researcher
It is trite that in terms of African Customary
law a claim does not prescribe. Across all
South African indigenous people we have a
principle to the effect that “a claim does not
prescribe”, for instance in Tshivenda, Sepedi
and IsiZulu they say, “Mulandu a u sini”,
“Molato a o boli” or “Icala aliboli”.
S 211(3) of the Constitution obliges the courts to apply
customary law when that law is applicable, subject to the
Constitution and any legislation that specifically deals with
customary law.
It cannot be demonstrated that the articulated principle is
at odds with the constitution, neither can it demonstrated that
unless a longer period applies in respect of the debt in
it is not “applicable” when prescription plea is raised in matters
question in terms of paragraph (a)or (b);
affecting black people.
(d) save where an Act of Parliament provides otherwise, three
For some reason, when matters relating to prescription of
years in respect of any other debt.”
debts are brought before court, it is the Prescription Act which
Section 11(C ) provides for the prescription of debts arising
finds application and not the African Customary Law. This is
from a bill of exchange or negotiable instruments. Negotiable
so even when litigants are black people. In most cases where a
instruments (Bill of exchange included) are regulated by the
special plea of prescription finds application, it succeeds. The
Bills Of Exchange Act 34 of 1964. Under the Bills of Exchange
prescription Act regime now appears to be the preferred avenue
Act, negotiable instruments include; Bills of exchange ,
in our courts. In terms of this Act a debt prescribes.
Cheques, Promissory notes, Treasury bill and Traveller’s
This approach somehow favours “civil law” over African
cheques complying with all requirements for the bill. If a debt
Customary law. The focus of this article is the Prescription Act
arises out of these instruments of payment, it will prescribe
and the law of extinctive prescription in general and its effects
after six years unless a longer period applies in respect of the
on creditors and debtors.
debt in question as provided for in terms of s11 (a)or (b) of the
Section 11 of the Act provides for the periods of prescription of
prescription Act.
debts as follow:
Pleading prescription
Periods of prescription of debts
In terms of the Act , prescription should be raised in pleadings.1
The periods of prescription of debts shall be the following:
A court shall not of its own motion take notice of
(a) thirty years in respect of-
prescription.
(i) any debt secured by mortgage bond;
It is trite that a party to a litigation who seeks to invoke
(ii) any judgment debt;
prescription shall do so in a relevant document filed of record
(iii) any debt in respect of any taxation imposed or levied
in the proceedings and that a court may allow prescription to be
by or under any law;
raised at any stage of the proceedings. 2
(iv) any debt owed to the State in respect of any share
Prescription as a special plea must set out sufficient facts to
of the profits, royalties or any similar consideration
show on what basis the defence is based. 3
payable in respect of the right to mine minerals or
The onus is therefore on the defendant to show that the
other substances;
claim is prescribed but if in reply to the plea, the plaintiff
(b) fifteen years in respect of any debt owed to the State and
alleges that prescription was interrupted or waived , the onus
arising out of an advance or loan of money or a sale or
would be on the plaintiff to show that it was so interrupted or
lease of land by the State to the debtor, unless a longer
waived. 4
period applies in respect of the debt in question in terms of 1 See S 17 in this regard
paragraph (a); 2 See S17 of the Act, see also stolz v Pretoria North Council 1953 (3) SA 884 (T)
3 Hurst , Gunson , Cooper , Tabler Ltd v Agricultural supply Association pty ltd 1965 (1)
(c) six years in respect of a debt arising from a bill of exchange SA 48 (W)
or other negotiable instrument or from a notarial contract, 4 Yusuf v Bailey and others 1964 (4) SA 117 (W)
African Law Review � Volume 1 � Issue 3 � 2018I N DEPTH 19
Why prescription In Minister of Finance & others v Gore NO 2007 (1) SA
One of the philosophical justifications for prescription of 111 (SCA) the following was stated (at para119J-120A):
debts is that ‘society is intolerant of stale claims’. (Cape Town ‘‘This court has, in a series of decisions, emphasised that
Municipality v Allie NO 1981 (2) SA 1 (C) at 5G-H. time begins to run against the creditor when it has the
In Road Accident Fund & another v Mdeyide 2011 (2) SA minimum facts that are necessary to institute action. The
26 (CC) Van der Westhuizen J explained the importance of running of prescription is not postponed until a creditor
extinctive prescription as follows: becomes aware of the full extent of its legal rights, nor until
‘In the interests of social certainty and the quality of the creditor has evidence that would enable it to prove a
adjudication, it is important, though, that legal disputes case “comfortably”.
be finalised timeously. The realities of time and human
It bears emphasis that the aim of the Prescription Act is not to
fallibility require that disputes be brought before a court as
extinguish the cause of action, but to take away the right of
soon as reasonably possible.5
an inactive creditor to sue after a particular time. Farlam JA
Didcott J in Mohlomi v Minister of Defence 1997 (1) SA 124
succinctly put it in Unilever Bestfoods Robertsons (Pty) Ltd v
(CC) at (para 11) remarked as follows :
Soomai & another 2007 (2) SA 347 (SCA) at 359F-H:
‘Inordinate delays in litigation damage the interests
‘What prescribes in terms of the Prescription Act . . . is a
of justice. They protract the disputes over the rights
“debt”, that is to say, not a “cause of action”, but a “claim”.’
and obligations sought to be enforced, prolonging
the uncertainty of all concerned about their affairs.
Prescription act and the Constitution
Nor in the end is it always possible to adjudicate
The Constitution proclaims its supremacy and enshrined a
satisfactorily on cases that have gone stale. By then
number of fundamental human rights. One of the sections
witnesses may no longer be available to testify. The
recognising a fundamental right is S34 which provides as
memories of ones whose testimony can still be obtained
follows:
may have faded and become unreliable. Documentary
evidence may have disappeared. Such rules prevent “Access to courts”
procrastination and those harmful consequences of it.’ 34. Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public
Due debt hearing before a court or, where appropriate, another
The phrase ‘debt is due’ is not defined in the Prescription independent and impartial tribunal or forum”
Act. But it is now settled that the term must be given its The constitutional Court has held that the Act limits s34
ordinary meaning, that is a debt owing and already payable or Constitutional rights.7
immediately claimable or immediately exigible at the election In Road Accident Fund and Another v Mdeyide 2011 (2)
of the creditor.6 SA 26 (CC) , the Constitutional Court, having expressed
reservations on whether an obligation may constitute a debt
“Debt” for purposes of prescription contemplated in the Prescription Act, stated that failure to meet
The word ‘debt’ in s 12(1) of the Prescription Act is a wide a prescription deadline set in terms of the Act, could deny a
concept which does not equate to a cause of action’. It includes litigant access to a court.
the broader concept of a ‘right of action’. In Drennan Maud & Although the Prescription Act limits S34 constitutional
Partners v Town Board of the Township Pennington 1998 (3) rights, it cannot be attacked purely on the basis that it preceded
SA 200 (SCA) Harms JA put it as follows: a democratic constitution.
‘[I]n short, the word “debt” does not refer to the “cause The purpose of the law of extinctive prescription should be
of action”, but more generally to the claim. . . In deciding served.
whether a ‘debt’ has become prescribed, one has to identify Stale claims diminish the quality of Justice and matters
the “debt”, or, put differently, what the “claim” was in the must reach finality before human frailties such as forgetfulness
broad sense of the meaning of that word.’ creep in.
Immediately after the debt has become due, creditors are
Furthermore, and in Barnett & others v Minister of Land
allowed to pursue the recovery of debts failure of which the
Affairs & others [2007] 2007 (6) SA 313 (SCA) at para 19, the
law cannot help. Depending on the debt, their legal claims will
term ‘debt’ was given a broad meaning to refer to an obligation
prescribe over time.
to do something, such as payment or delivery of goods or to
That is to say their right to claim will soon cease to exist.
abstain from doing something.
With regard to the prescription law, parties should know that
it is not the merits of the case that matters, it is the time. If the
When prescription begins to run
time has lapsed , S34 right is legitimately limited.
Our courts have clarified when exactly prescription begins to
run against the creditor.
5 Para 2
6 Electricity Supply Commission v Stewarts & Lloyds SA (Pty) Ltd 1979 (4) SA 905 7 Trinity Asset Management (Pty) Limited v Grindstone Investments 132
(W) at 908E. (Pty) Limited [2017] ZACC 32 at para 33
African Law Review � Volume 1 � Issue 3 � 201820 IN D E P T H
Source: Denis Farrell/AP
Decolonising South Africa
By retired Constitutional Court Justice Albie Sachs
Our clear and constant goal was to destroy the whole racist system and replace it
in its totality with a dispensation based on the will of all people.”
Oliver Tambo’s whole life was dedicated to This reality meant that the struggle for self-determination
in South Africa had important differences from the struggle for
decolonising South Africa. When the British independence in the rest of the continent.
handed over power to the whites through the In the 1950s, first Ghana and then one country after the
creation of the Union of South Africa in 1910, other on the African continent gained independence. This, each
they excluded the majority black population one did through the establishment of a new internationally
recognised state separated from the former metropole
from the new sovereignty. (primarily Britain, France and Portugal).
While whites achieved self-government South Africa, on the other hand, was already an independent
followed by full independence, the black state – in fact, it had been one of the founders of the United
Nations.
South African majority continued to be When the international movement spearheaded by Tambo
treated as colonised subjects. The only succeeded in getting apartheid declared a crime against
difference was that instead of being ruled humanity, it was not South Africa as a country that was
from London, they were now being dictated expelled from the United Nations, but representatives of the
racist government who were thrown out.
to from Pretoria and Cape Town. In terms of So the struggle for self-determination in our country did
the Constitution and the law they were denied not take the form of a fight for independence and separate
the vote, excluded from owning land in 90 per statehood, it was not based on a notion of territorial secession.
cent of the country, forced to carry passes and On the contrary, self-determination in South Africa took the
form of destroying the system of internal colonialism apartheid
subjected to a migrant labour system which in an already independent state and achieving majority rule in
treated them as temporary sojourners in the an undivided country.
towns. For those of us who saw ourselves as part of the Congress
To cap it all, the Governor General (later the State movement, this was the vision of the Freedom Charter adopted
President) was declared to be the Supreme Chief of all in 1955, two years before Ghana obtained independence.
‘natives’. A large part of my practice as a young advocate was We had no doubt that distructing the apartheid system in
devoted to dealing with people being prosecuted and harassed South Africa would be part and parcel of the struggle to free the
under laws called the Natives Urban Areas Act, the Natives entire Continent from colonial rule.
Land Act, the Native Administration Act. The perverse reality in our country under apartheid rule was
The term ‘Natives’ was changed to ‘Bantus’ and then to that the notion of independence was in fact being invoked not
‘Blacks’, but the reality of life for the majority was that of by the oppressed majority but by the racist rulers.
living as if in an occupied country under a colonial-type and The opposition to the Bantustans not only crossed ethnic
overtly racist administration. divisions, it ensured the evolution of a commonality of purpose
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