Quarter 3 2021


Editor’s Note - Quarter 3 2021 Editor's Note September 2021

The third-wave of COVID-19 has made one very aware of the enormity of the challenges faced by individuals and governments globally. There are so many people who have contracted the virus and without prejudice is saddened by the many people in the field of law who have lost their lives. Their deaths have left South Africa, their colleagues, friends and most importantly their families the poorer. Our sincere sympathy to all those who have suffered since March 2020.

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Why the JSC is failing us The Law/Opinion September 2021

"Quis custodiet ipsos custodes?" This question, often wrongly attributed to the philosopher, Plato in his seminal work, Republic, is a Latin phrase that is originally found in the Roman poet, Juvenal's poem, Satires. It is translated, "Who will guard the guards themselves", "Who watches the watchers", or (in this context, my favourite) "Who will watch the watchmen"?

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The perfect storm – when fault lines are exploited by opportunists The Law/Opinion September 2021

The Japanese proverb, "Nana korobi ya oki", which means fall down seven times and get up eight, is what we need as a mantra in this country in the aftermath of the riots, looting, pillaging, theft and vandalism of July 2021. Prior to 27 April 1994, protest action, unrest, riots, looting, vandalism and rendering the country ungovernable were commonplace. Our country has, on many occasions, come back from the cusp of violent destruction. It took a concerted collaborative effort on the part of our entire society.

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Did the Constitutional Court uphold or breach the law in the Zuma Matter? The Law/Opinion September 2021

This article discusses selected aspects of two Constitutional Court judgments that were delivered against former President Jacob Zuma by the Constitutional Court in 2021. It assesses whether the Constitutional Court was the appropriate court of first instance in the dispute between the Mr Zuma and the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State. It further evaluates whether the CC upheld the rule of law and thus clearly demonstrated that no-one is above the law or, in attempting to protect its authority, it violated the law and Mr Zuma's rights.

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Zuma’s committal a victory for the rule of law The Law/Opinion September 2021

John Locke, an English philosopher and physician, who is widely regarded as one of the most influential of Enlightenment thinkers and is commonly known as the Father of Liberalism, famously stated, "where there is no law, there can be no freedom. For to be free means to be free from the persecution and the violence of others: something which will be impossible if there were no law."

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Zuma’s red herring application The Law/Opinion September 2021

Just when we thought that the phat lady, Justice Khampepe, brought the curtain down on the Zondo versus Zuma show, the former President, at the thirteenth hour, tried to pull a rabbit out of a hat to avoid jail time, after being found guilty of the crime of contempt and sentenced to fifteen months of direct imprisonment. On 2 July, Zuma launched an urgent application asking the Constitutional Court to rescind its judgment, which has been widely lauded as a victory for the rule of law, just two days before he was to turn himself over to the authorities to start serving his time.

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Judicial dissent in times of constitutional crisis The Law/Opinion September 2021

When constitutional democracy is under strain, how should we view disagreement among judges in a court of (supposed) last resort?

The Constitutional Court has been thrust centre-stage during this winter of discontent in South Africa. Within the space of a couple of days, the Court handed down judgment in two cases that were freighted with political significance. But if these two political hot potatoes that landed in the lap of our apex court made the judges shift uneasily in their seats, this was not apparent at the live broadcasts of judgment being handed down in each matter.

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“My Sister is mistaken” and other responses to unreasonable dissent The Law/Opinion September 2021

On the Zuma minority judgement

In what may be a first in our legal history, on 12 July 2021, the Constitutional Court heard an application for the rescission of the judgment delivered on 29 June 2021. In that judgment, the Court found former President Jacob Zuma guilty of contempt of court for his refusal to comply with an earlier order compelling him to appear and give testimony before the State Capture Commission, which sentenced him to imprisonment for 15 months. Mr. Zuma has been imprisoned at Estcourt Correctional Centre since 7 July 2021.

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Herbert Smith Freehills’ International Legal Development Programme for legal graduates Graduate Opportunity September 2021

Having just enjoyed another summer Olympics, an athletic analogy seems appropriate. Two athletes of the same ability take part in the 100-meter dash. If the first athlete receives a mere 1-second head start they will be 10 meters ahead and well into running 'the bend' by the time the second athlete crosses the 100 meter line.

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Tales from the US of A . . . International September 2021

Law firm can sue competitor for case-runners poaching clients

A New York Appeals Court is allowing a personal injury law firm to pursue a delictual interference claim against competitors who allegedly used case-runners to poach its clients. The $30 million lawsuit claims that its clients were lured away with promises of payments of about $2 000 or $3 000 which were paid from a briefcase full of cash. The competitors are alleged to have sent case-runners to a pain clinic, where they enticed patients to switch firms. The appeals court said solicitation of legal business is a misdemeanour, which would support a delictual interference claim. The competitors claim it is a publicity stunt lawsuit.

Debra Cassens Weiss May 5, 2021

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Snippets from around the World International September 2021

South Africans had something to smile about for a change when Tatjana Schoenmaker swam her way to victory in the 200m Breaststroke at the Tokyo Olympic Games. Her time of 2:18.95 set an Olympic and World Record time, and won SA's first gold medal at the Olympics. To add to our South African pride, her teammate Kaylene Corbett finished fifth in the final. Tatjana also won silver in the Women's 100m Breaststroke.

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Spotlight on environmental law Spotlight On Environmental Law September 2021

Since 1970, global surface temperatures have risen faster than in any other 50-year period over the past 2 000 years. The past five years have been the hottest since 1950, and according to the National Oceanic and Atmospheric Administration (NOAA), July was the hottest month recorded since record keeping began 142 years ago. The report is quite clear: there will be floods; there will also be water shortages. Some regions will be dangerously hot; others will be uninhabitable because of rising sea levels. Polar ice and glaciers are melting fast, contributing to rising seas, and extreme weather events will become more frequent and more intense – threatening lives and livelihoods. Some species will adapt, but others will become extinct. Polar bears may disappear as the ice on which the rely melts; tropical coral reefs may disappear as oceans become more acidic; and the poor in the poorer countries, which are least able to adapt, will suffer the most.

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Natura abhorret a vacuo – the need for natural capital assessments in land use management Spotlight On Environmental Law September 2021

Given the global socio-economic disruption and massive cost in human life associated with COVID-19 and its alleged origins in zoonotic disease, it is no surprise that there is heightened awareness of our collective impact on the environment and our natural capital.

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Will green hydrogen be the much-needed catalyst in facilitating water regulation reform? Spotlight On Environmental Law September 2021

Various complexities associated with South Africa's water licensing regime may finally be addressed, as government is determined to stimulate a green hydrogen economy.

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‘Deadly Air’ Spotlight On Environmental Law September 2021

Due to the global COVID-19 pandemic, most countries, including South Africa, have had to endure different forms of lockdown and "stay at home" orders since the beginning of 2020. During this time, there has been a notable decline in pollution levels across various cities. This has highlighted the impact that pollution has had and is having on the environment and our daily lives.

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