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PLJ The People’s

Law Journal
Volume 1 • Issue 1 • November 2013

Foreword by Justice Zak Yacoob


The People’s
Law Journal
In this issue Issue 1 • November 2013
peopleslawjournal.nu.org.za
v Foreword
Z AK YACOOB •

1 Introduction Editor:
Z ACKIE ACHMAT Jacques van Heerden
Editorial Committee:
4 Transforming the Judiciary
Zackie Achmat, Lisa Draga,
Who should judges be? Gregory Solik, Max Taylor,
GREGORY SOLIK Jacques van Heerden
11 Free Speech and Communism in Colonial South Editorial Assistant:
Africa Isabeau Steytler
Rex v Roux and Ngedlane (1936) •
Z ACKIE ACHMAT
This issue of the People’s
14 Train Apartheid in Cape Town Law Journal is funded by the
Rex v Abdurahman (1950) Open Society Foundation.
MA X TAYLOR •
19 BJ Vorster’s War against White Students Front cover image:
NUSAS and the 1956 Riotous Assemblies Act Johannesburg Magistrates’
BRUCE BAIGRIE AND Z ACKIE ACHMAT Court. Taken by Bheki Dube,
Mainstreet Walks.
24 History of South African Law
Development from 1652 to the present (excluding Infographics:
Roger Landman
customary law)
GREGORY SOLIK ( TEXT ) • ROGER L ANDMAN (GR APHICS) Thanks to:
Marcus Löw, Daniel
26 A Permanent Space for Justice Hofmeyr, Axolile Notywala,
Rikhotso v East Rand Administrator Board (1983) and Simon Sephton for their
WANDISA PHAMA AND LISA DR AGA invaluable contributions to
this issue. Special thanks to
31 Decriminalising Sodomy Lisa Draga from the Equal
NCGLE v Minister of Justice (1998) Education Law Centre for
DANIEL HOFMEYR reviewing articles for this
issue.
37 Class Action Litigation
An avenue to justice Translators:
DANIEL LINDE Bohle Conference and
­Language Services
45 Amayeza eNziwe aFana nawoMenzi wokuQala,
amaLungelo awoDwa abeNzi mveliso ne-HIV
eKenya
U-Ochieng and Others v iGqwetha Jikelele (the Attorney
General) (2012)
ZENANDE BOOI

50 Generics, Patents, and HIV in Kenya


Ochieng and Others v the Attorney General (2012)
ZENANDE BOOI
Published in 2013
by

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Dedicated to the memory of former Chief Justices
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Foreword
Z A K YACOO B

I am privileged to have been given the and demonstration were ruthlessly used
opportunity to write the foreword to to protect authority and apartheid prac-
this, the first edition of the People’s Law tices, the horrendous plight of gay peo-
Journal. Some may think this title pre- ple and migrant mineworkers, and the
sumptuous and even a contradiction in way in which the law limited access to
terms. They may say that law journals are courts by limiting actions by classes
food of practising and academic lawyers of people in the same position. It has
alone. This cannot be true and makes no become fashionable in some quarters to
sense. All people are governed by the law suggest strongly that apartheid is gone
and affected by it in a good and often now and that we should not continue
bad way. All of us need to understand to go back there. Most of these articles
how the law affects us, whether a law is refute that point and make it plain how
good or bad, and, if it is bad, what we can important it is to remember our history
do about it. This journal is, in my view, a and to build on it.
wonderful start to this process. They also show the courage and sense
These eight articles are all an effort of sacrifice of people of all races in this
to write as simply as possible (though I country in the process of the struggle
believe greater strides can be made in this to attain a new society. And they speak
direction in the future). They are wide- poignantly of how law was used to pro-
ranging, dealing with various issues tect and defend people who were victims
including the right of vulnerable gay of some of these evil measures and how,
people to be treated equally, the impor- in many cases, the people succeeded
tance of freedom of speech and protest, because some apartheid judges came to
as well as the need to ensure access to the rescue by responding to imaginative
courts for poor people in need. The edi- arguments in interesting ways. These
tors need to be particularly applauded judges said, for example, that it was
for securing the article on the judgment not an offence to speak out against the
in Kenya concerned with making medi- royal monarch, that apartheid on trains
cine more affordable. was no good unless there was a law that
Almost all the articles graphically go allowed it, that an order by a magistrate
back to apartheid and its evils in a way prohibiting protest was invalid, and that
relevant to ordinary people: the bad way contracts of mineworkers renewed yearly
in which judges were appointed, how were not to be seen as separate from
clamping down on freedom of speech each other. Built within this theme in all

v
vi PLJ • 2013 • Issue 1

these articles about past cases is the hope nence. The rights to equality, free-
that our judges do not let us down now. dom of expression, and demonstration
This brings me to the article which are rightly emphasised and the hope
carefully and simply tells us what we expressed that they will be appropriately
need of our judges now and suggests respected and protected. The message
judge qualifications that are interesting conveyed ultimately is that, to get to the
to say the least. society promised by our Constitution,
The articles taken together express we need committed people like those
the hope that our judges will be as sen- who struggled and sacrificed in the past:
sitive and responsive as the judges of the lawyers who brought cases that chal-
Kenya in ensuring that the rights of peo- lenged racist laws; the judges who gave
ple to make money from medicine are just decisions in those days. We also
appropriately balanced with the right of need a government that is more sensi-
people to their health. Our judges have tive and caring than those of apartheid
already made important contributions South Africa.
in this direction, as shown by the arti- I trust that this is the beginning of a
cles on the judgments decriminalising series that will be read and understood
consensual sodomy and endorsing class by many people in our country and that
action as a way in which poor people it will contribute to the achievement of
might get some benefit. the constitutional project.
The Constitution and the society
contemplated also receive some promi-
Introduction
Z ACK I E ACH M AT

Ndifuna Ukwazi chose “dare to know” as Hands Umbrella Trust. However, the
its motto as a challenge to activist lead- gains need to be protected — as became
ers to seek and use knowledge. Reading, evident when Fidentia, the company
study, research, and writing must inform responsible for investing these provi-
activist leadership and our struggles for dent funds, embezzled more than R1.1
equality and justice. This is nowhere billion allocated to the children, wives,
truer than in the study of law. The Peo­ and other family members of deceased
ple’s Law Journal is a small contribution mineworkers.
to making law visible and allowing it to Workers and their unions, includ-
become a tool, and not the object, of our ing NUM and the new Association of
struggles. Two contemporary examples Mineworkers and Construction Union
related to the mineworkers’ struggle for (AMCU), conduct their battles largely on
justice and equality illustrate this point. the terrain of labour law. Yet there is so
The Marikana massacre drew the much more. Company law and laws per-
world’s attention to work and suffering taining to safety in the mining industry,
in mining, South Africa’s most danger- financial services, fraud and corruption,
ous industry. Our country’s wealth (like police conduct, and commissions of
those of its giant conglomerates Anglo inquiry; all maintain the unequal power
American, De Beers, and Goldfields) has relations between mineworkers, global
been built up over more than a hundred corporations, and the state. These laws
years on the back of mainly black migrant affect every aspect of all our lives but
workers from South Africa’s rural areas, remain invisible to those most affected
particularly the Eastern Cape, and many by their operation.
of our neighbours including Mozam- To realise the fundamental rights of
bique, Lesotho, and Malawi. mineworkers, these laws must be laid
Defending black workers against bare. Equality must be based on equi-
exploitation became a critical task under table access to public goods, including
apartheid — one necessary to defeat wealth and income. Laws such as com-
minority rule. The National Union pany law must become visible; and their
of Mineworkers (NUM), the strongest transformation is imperative.
union in our history, was born out of Law is present everywhere but
this struggle. One of the major gains remains invisible and concealed with its
was the Mineworkers Provident Fund, own language and practice. It is steeped
which changed its name to the Living in formalism and a code designed to

1
2 PLJ • 2013 • Issue 1

intimidate, which prevents most people an advance based on the collective strug-
from understanding it — not only in gle of poor people.
South Africa. The rights to freedom, human dig-
We assume that the law is reserved nity, equality, and the right to life existed
for those who know, make, and inter- before the law did. The struggle of peo-
pret the law — the police and a caste of ple makes these rights visible in law, as
intellectuals such as parliamentarians, the Romans did and the Constitution of
lawyers, judges, magistrates, prosecutors, South Africa does.
and government functionaries. The establishment and growth of the
Law is also based on ensuring that democratic state based on struggle, and
only the state has the right to use vio- the creation of an independent judiciary,
lence and only in limited circumstances most often enforces the privileges of the
such as war and when protecting society powerful over the rights of the vulner-
from violent crime. Under very limited able. But it can also be used to contest
circumstances the state is empowered those privileges. The codification of law
to arrest, detain, and imprison people, created individual subjects or citizens
although it must do so without violence with duties and rights. Law can only be
and give everyone a fair trial. While changed systemically in favour of the
law is used to defend inequality and poorest through collective struggle.
property, as in the deaths of Marikana The articles in the People’s Law Journal
mineworkers, Andries Tatane, and oth- travel back into British colonial times.
ers, this is not the whole story. The law The case of communist leaders Edward
also ensures a limit on the exercise of Roux and Josiah Ngedlane shows the
arbitrary power. Working-class and poor necessity of freedom of expression to
communities can often use the law and working-class struggles. The people of
our Constitution to protect and advance Cape Town who resisted apartheid on
rights. trains did so by successfully challenging
Over 2,500 years ago working people the enforcement of the law. The case of
of the Roman Republic struggled against Tom Rikhotso, who won the right to be
land owners and the aristocracy to make recognised as a worker with residence
law visible and fair. They demanded that rights despite apartheid labour and pass
the Roman Senate send a delegation to laws, shows how working people can use
study the Constitution of Greece, one law to oppose unjust laws.
of the first in the world. Roman law was In our constitutional democracy, the
codified into 12 Tablets, which were case of the National Coalition for Gay
publicly displayed so that all people in and Lesbian Equality decriminalised sex
Rome could see and know them. These between men and established equality
laws codified a list of private rights and on the basis of sexual orientation. This
fair legal procedures for all Roman citi- was the first time the Constitutional
zens. Regrettably these laws continued Court ruled on the rights of a marginal-
to define people classified as slaves in ised and vulnerable minority.
terms of property, rather than human As the Farlam Commission of Inquiry
beings with rights. Nevertheless it was into the Marikana shootings shows,
Introduction 3

law is often denied most people due to more than race and gender — judicial
justice being unaffordable. The article transformation is equally about under-
on class actions demonstrates how the standing class relations.
poorest people can combine to defend In future, resources permitting, the
and advance their rights. The case ensur- People’s Law Journal will also publish
ing that Kenyan people living with HIV extracts of these judgments (as we do
had a right to generic medicines that online) to liberate law from the confines
trumped the profits and patents shows of academic and legal journals. Thank
that law can be used to challenge global you to everyone who contributed, espe-
corporations. cially Jacques van Heerden.
The first article on the judiciary will
illustrate that transformation is about
Transforming the Judiciary
Who should judges be?
GR EGO RY SO L I K

The Pulitzer prize-winning novel To Kill he promises to be faithful to the Repub-


a Mockingbird was written in 1960 by lic, to uphold and protect the Constitu-
then-unknown author and law graduate, tion, and to administer justice to all per-
Harper Lee, and has remained popular sons without prejudice, fear, or favour.
ever since. It is an allegory about class Section 174(1) of the Constitution pro-
and racial injustice that takes place about vides a qualifying threshold: to become
three years after the start of the 1929 a judge, you must be “appropriately qual-
Great Depression. ified” and “a fit and proper person”.
Atticus Finch, a widower, lives in the Independent-mindedness is regar­
conservative community of Maycomb, ded as an important part of being fit
Alabama with his son Jem and daugh- and proper. When people say someone is
ter Scout. Atticus, a lawyer, is asked to “independent minded”, they may mean
defend Tom Robinson, a black man (or “stubborn”, but in legal terms it refers
“negro”) who has been falsely accused of to how you respond to pressure. To be a
raping a white woman. Because Atticus judge, you need to be able to form your
does not refuse the case, some of the rac- own opinions despite pressure — regard-
ist townspeople start harassing him and less of whether this pressure is external or
his family. internal (for example, political pressure
The book portrays Atticus as the from the state, particularly the execu-
model of integrity for the legal profes- tive, or a personal desire for popularity).
sion. In explaining to his six-year-old This is what Atticus tries to explain to his
daughter, who sat curled up in his lap, daughter when he explains why he chose
why he has to defend Tom Robinson, he to defend Tom Robinson:
explains that the case goes to the essence “Atticus, you must be wrong….” said Scout.
of his conscience. “Scout,” he says, “I “How’s that?”
couldn’t go to church and worship God “Well, most folks seem to think they’re
if I didn’t try to help that man” (To Kill a right and you’re wrong….”
Mockingbird, chapter 11). “They’re certainly entitled to think that,
and they’re entitled to full respect for their
opinions,” said Atticus, “but before I can
Courts and the administration of
live with other folks I’ve got to live with
justice
myself. The one thing that doesn’t abide by
In terms of the Constitution of South majority rule is a person’s conscience.” (To
Africa, when a judge takes office, she or Kill a Mockingbird, chapter 11)

4
Transforming the Judiciary 5

In all respects this bent towards fairness the profession compared to the 57% of
and impartiality makes Atticus fit and white males (89 and 1,367, out of a total
proper. In addition, judicial candidates of 2,384 advocates respectively) with 69
must be “appropriately qualified” to be Indian and just 37 coloured female advo-
judges. Here we do not simply mean cates in the entire country.1 The attor-
having a legal qualification or legal ney’s profession is similarly problem-
knowledge, but also practical experience atic. A recent survey of large corporate
with rules and procedures, particularly law firms showed the disparity not only
aligned to an area of law, like family law, between racial composition but also
criminal law, commercial law, or compe- between race, position, and influence.
tition law.
The Project Law: Demographic Survey of
Transformation of the judiciary Large Corporate Law Firms, South Africa
Because the hallmark of a constitu- was commissioned by the Cyrus R.
tional democracy is the independence and Vance Center for International Justice,
the Law Society of South Africa, the
composition of the courts, it is easy to see
Mail & Guardian, the South African
the importance of putting the right kind
Legal Fellowship Network, and the Wits
of people on the bench. During apartheid, School of Law.
the State President appointed judges from The researchers “examined the gen-
a limited pool of lawyers, mostly white, der, race, and disability distribution
male advocates, who tended to apply the across various levels of employment
from candidate attorney level to man-
law without considering what it would be
aging partner/CEO level” at 12 firms
like to be the person on trial. That’s not dis- who chose to participate (Plus 94, p. 4).
similar to the people who were in charge Some key findings were that: women
of Tom Robinson’s fate: the jury was not make up 53.4% of the employees, but
representative of Maycomb County. Scout overall there are more than double the
number of white women as compared
remarks: “Sunburned, lanky, they seemed
to black women; there tend to be more
to be all farmers” — confirming what
white women in more senior positions;
history tells us about the composition of and senior positions seem to be domi-
juries in the US at that time: they were all nated by white men: 45% of all salary
white men. (See the article by judge Royal partners, 53% of all equity partners,
Ferguson, “The Jury in To Kill a Mocking­ 72% of all managing partners, and 80%
of the CEOs at participating firms are
bird: What Went Wrong?”.)
white men.
This lack of representation is a serious
problem. As Atticus explains, you never
really understand another person until This means that the pool of can-
you consider things from their point of didates from which we must select
view. How could these jury members potential judges is very shallow. In this
imagine being Tom Robinson? context, when we talk about “transfor-
At the time of writing, it has been
reported that there are just four senior 1 See “JSC lashed for slow pace of gender
transformation”, and South African Insti-
black female advocates in South Africa. tute of Race Relations, South Africa Survey
Black female advocates make up 4% of 2012, p. 761.
6 PLJ • 2013 • Issue 1

mation” of the judiciary we tend to place “As we move towards a more clearly class-
a strong emphasis on gender and racial based society, there will be a growing class
transformation. We call this the “diver- of people who are black, but have not lived
experience of deprivation or of being dis-
sity rationale” and it is a constitutional
criminated against, and who have only
requirement (Cowen, “Judicial Selection
limited contact with people who do have
in South Africa”). that experience.”
In tackling the lack of “different
Therefore, although race and gender will
views” on the bench, South Africa’s
for a long time be two important factors,
top judge — Chief Justice Mogoeng
we must be critical in understanding
Mogoeng of the Constitutional Court
the problems and trends of power and
— recently said, “Merit does count but
inequality in South Africa and the world
it is not all about merit. Transformation
generally. Increasingly, we see a world
is just as important.” This statement sug-
divided disproportionately by wealth,
gests that merit and transformation may
not by race — although there is of course
be mutually exclusive; that in promoting
a strong overlap.2
transformation we may have to sacrifice
Class inequality creates two societies
quality in the hope of speeding up the
— much like Maycomb in 1935 — living
process of redress.
side by side, but hardly knowing each
What kind of woman are you? other, hardly imagining what life is like
for the other. Those who do rise to posi-
There are serious problems with an
tions of influence are a small percentage
unthinking application of the diversity
who often share the same privileges tra-
rationale, which seems to dominate
ditionally reserved for whites — privi-
mainstream legal debate about transfor-
leges of education, health, and access
mation of the judiciary. This essay tries
to services — while the vast majority of
to argue why, and make suggestions as to
South Africans continue to be trapped by
what can be done.
poverty and lack of opportunity.
Firstly, the diversity rationale must be
Secondly, the problem with the cur-
understood in terms of class and other
rent thinking about merit is that it per-
socioeconomic factors if we are serious
petuates legal myth. It assumes that peo-
about addressing inequality and “repre-
ple who have spent time in a courtroom
sentivity” of society. A failure to do so
fussing over procedure and legal techni-
perpetuates the deep structural inequal-
calities have a better grasp of justice.
ity that exists in the profession, always
This goes to the heart of how we
through race, but also, through geogra-
should interpret section 174 of the
phy, education, language, and financial
Constitution.
exclusivity. In “The Transformation of
“Appropriately qualified” can mean
the Judiciary”, Wesson and Du Plessis
many things. Traditionally it has meant
quote Geoff Budlender, one of South
being technically skilled in adjudicating
Africa’s most renowned human rights
lawyers:
2 See for example Joseph Stiglitz, The Price of
Inequality. W. W. Norton & Company, 2012.
Transforming the Judiciary 7

between rights and duties, reasoning, went on to become one of South Africa’s
argument, writing, and analysis, which most revered judges).
is important. But the combined effects of The idea that judges are surgeons of
both our history and the challenges of the law has been compounded by a cen-
living in a hyper-connected, globalised, tury of judicial and legal thought that
and complex world, mean that we are focuses on what judges do, instead of
compelled to reassess “judicial qualities” asking who they should be.
and “appropriately qualified” if the legal Ronald Dworkin, one of the world’s
profession is to maintain legitimacy. greatest legal thinkers, insists that the
Judges at Work: The Role and Atti­ law is whatever follows from a construc-
tudes of the South African Appellate Judi­ tive interpretation of the institutional
ciary 1910–1950 is a classic text by one history of the legal system.
of South Africa’s most renowned profes- He also argues that lawyers — the
sors, Hugh Corder. It provides a fascinat- insiders — are best placed to grasp the
ing insight into the early years of what is questions of legal practice by “strug-
now the Supreme Court of Appeal (SCA). gling with the issues of soundness and
The judges’ performance and path to the truth participants face” (Dworkin, Law’s
judiciary are illuminating: a politician, a Empire, p. 14). Especially in difficult
private secretary, a parliamentary drafts- cases, he says, judges reach a decision “by
man, and a very average advocate (who trying to find … the best constructive
interpretation of the political structure
and legal doctrine of their community”,
using “some coherent set of principles
Corder notes that Lord De Villiers was
appointed Chief Justice of the Cape
about people’s rights and duties” (Law’s
Colony at the age of 31 and was forced Empire, p. 255).
to administer the oath of office himself Let’s assume for the moment that
as other judges refused to do so. Sir this is what judges do; who apart from
James Rose Innes was deeply involved in the legislature is best placed to struggle
politics before he went to the bench. Sir
with issues of soundness and truth, tak-
William Solomon had not been a great
success at the bar, but was nevertheless ing into account South Africa’s very own
appointed at the age of 34 and would go history — not just legal, but economic,
on to be regarded as one of the sound- political, social, and so on — within the
est lawyers and best judges ever pro- context of a complicated and integrated
duced. Although James Stratford built
world?
a great career as an advocate, he was
not considered a learned man and as
There is precedent for thinking that
Blackwell comments, “it is noteworthy people do not need judicial training to
how many of his judgments have since make decisions about rights. Jeremy
been dissented from”. B A Tindall was a Waldron observes that John Locke, an
former private secretary to Innes in the important English philosopher, rejected
Transvaal. And Albert v d S Centlivres,
the idea that legal reasoning was supe-
after a slow start at the bar, became a
parliamentary draftsman before going rior to any other kind of reasoning:
to the bench.
8 PLJ • 2013 • Issue 1

“Certainly Locke rejected out of hand the day reality of geographic, linguistic, and
view — very common today — that on class inequality in the United States.
issues of rights the reasoning of judicial
officers (Supreme Court Justices and their A proposed solution
clerks) is to be preferred to reason and judg-
Major changes in society, increasing
ment of ordinary men and women. The
reasoning of legal scholars on matters of caseloads, more complex laws and legal
rights he regarded as ‘artificial Ignorance, issues have surely increased the demand
and learned Gibberish’” (p. 331). and need for a more sophisticated
approach to judging. If Atticus Finch is
Indeed, what makes the skill of “admin-
a model of integrity for the legal profes-
istering justice” a legal one?
sion, his young daughter Scout might
In the United Kingdom, the Judicial
be an example of who lawyers should
Appointments Commission published
be and what kind of relationship they
new criteria for what makes a good
should have with the law.
judge in a discussion document entitled,
I would like to suggest that it is our
“Qualities and Abilities”. According to
definition of merit that needs to be
the authors, there are five requirements
transformed so that the pool of candi-
to be a judge:
dates can be deepened and the judiciary
(a) intellectual capacity;
strengthened and legitimised. Framing
(b) personal qualities;
transformation and merit in a limited
(c) an ability to understand and deal
way simply mirrors the formulaic and
fairly;
doctrinal conception of law. By asking
(d) authority; and
who the judiciary should be and then
(e) communication skills and efficiency
looking for qualities in judges that ena-
(Judicial Appointments Council,
ble them to carry out that duty, we can
2013)
become more creative in finding “fit and
Cowen provides a similar list: proper” candidates.
“[A] high level of expertise in a chosen In a diverse society, judges are likely
area or profession, ability quickly to absorb to encounter situations, attitudes, and
and analyse information, and appropriate values outside their personal experi-
knowledge of the law and its underlying ence. So, more than just walking around
principles, or the ability to acquire this
in other people’s shoes, we need smart,
knowledge.” (“Judicial Selection in South
highly capable, analytical, and respected
Africa”, p. 28)
people from a wide range of communi-
We have seen recently America’s Supreme ties on the bench. The Helen Suzman
Court (SCOTUS), the top court in the Foundation recently brought litiga-
United States, apply its understanding of tion where they argued that we need to
politics, law, and society in an affirma- appoint people who know the “social,
tive action case. Fisher v The University of political, and economic reality”. These
Texas Austin (2013) not only ignores hun- people may be poor, intersex or gay, in-
dreds of years of racial inequality but is between jobs, unemployed, an ex-con-
completely unresponsive to the day-to- vict, unable to pay rent, or with no place
Transforming the Judiciary 9

to stay.3 They would also need to know a intended constituency, and create new
great deal about the world, and business, trajectories for regulating public life.
and government.
Because this is such a big and diffi- Conclusion
cult task, it is not enough to collect small In To Kill a Mockingbird, Tom Robinson is
practical ideas about how to transform found guilty and jailed. Shortly after, he
the judiciary; it is important to insist on dies when he is shot 17 times while try-
big ideas about the direction in which ing to escape. More recently, a US court’s
we should change it. exoneration of Travyon Martin's killer is
One way might be to approach a yet another stark reminder of the limi-
small group of exceptional people who tations of our judicial systems and the
have experience “with the law” — our choices we make about the laws under
most outstanding community leaders, which we live.
social justice activists, public intellectu-
als — and prepare them by sending them In a must-read article on the verdict,
off to a highly regarded judicial school Andrew Cohen writes: “Criminal trials
where their legal skills are refined, and are not searches for the truth, the whole
then introduced to the bench through truth, and nothing but the truth. They
never have been. Our rules of evidence
a programme that is incremental. Or we
and the Bill of Rights preclude it. Our
may also want to think about igniting trials are instead tests of only that lim-
the debate about career jurists. We might ited evidence a judge declares fit to be
for example, through the Office of the shared with jurors, who in turn are then
Chief Justice, initiate a programme that admonished daily, hourly even, not to
competitively selects young and mid- look beyond the corners of what they’ve
seen or heard in court” (“Law and Justice
career legal professions to become mag-
and George Zimmerman”).
istrates, preparing them for a life on the
bench, in a slightly accelerated way. Or
we might develop a programme for more Despite a prolific acceleration of the
inclusive part-time judges. Or we might growth and intricacies of laws globally,
create opportunities for judges to sit en no profession has seen as little innova-
banc more frequently. Specialist courts tion as the legal profession. And so imag-
will enable this kind of transformation, ining the possibilities of reconstruction
and increase efficiency. is no child’s play. In fighting for equality
Presumably, this will allow the judici- and justice it is worthwhile remember-
ary to be much more representative of its ing the advice Harper Lee left us in the
inscription of the inside cover of To Kill a
Mockingbird, quoting Charles Lamb:
“Lawyers, I suppose, were children once.”
3 We want the development of critical think-
ing skills, i.e., the ability to think indepen-
dently and actively, to analyze, to construct References
reasoned arguments and explanations, to
“JSC lashed for slow pace of gender
evaluate the arguments and explanations of
other people, to ask the right questions, to transformation.” Mail and Guard­
encourage diverse benches.
10 PLJ • 2013 • Issue 1

ian. 21 Apr 2013. http://mg.co.za/ 73 Texas Bar Journal (Jun 2010):


article/2013-04-21-jsc-lashed-for- 488–490.
slow-pace-of-gender-transformation. Fisher v The University of Texas Austin and
Web. Others 2013 570: 11–345. Supreme
Cohen, Andrew. “Law and Justice and Court of the United States.
George Zimmerman.” The Atlantic. Judicial Appointments Council. “Quali-
13 Jul 2013. http://www.theatlan- ties and Abilities.” Accessed Jul 2013.
tic.com/national/archive/2013/07/ http://jac.judiciary.gov.uk/applica-
law-and-justice-and-george-zimmer- tion-process/112.htm. Web.
man/277772/. Web. Lee, Harper. To Kill a Mockingbird. NP:
Corder, Hugh. Judges at Work: The Role Heinemann New Windmills, 1966.
and Attitudes of the South African South African Institute of Race Rela-
Appellate Judiciary 1910–1950. Ken- tions. South Africa Survey 2012. Ed.
wyn: Juta & Co, 1984. John Kane-Berman. Johannesburg:
Cowen, Susannah. “Judicial Selection in SAIRR, 2012.
South Africa.” Democratic Governance Waldron, Jeremy. “Participation: The
and Rights Unit. 2010. http://www. Right of Rights”. Proceedings of the
dgru.uct.ac.za/usr/dgru/downloads/ Aristotelian Society 98 (1998): 307–37.
Judicial%20SelectionOct2010.pdf. Wesson, Murray and Max du Plessis.
Web. “The Transformation of the Judici-
Dworkin, Richard. Law’s Empire. Har- ary: Fifteen Year Policy Review.”
vard: Harvard University Press, 1986. http://www.thepresidency.gov.za/
Ferguson, Royal. “The Jury in To Kill a docs/reports/15year_review/jcps/
Mockingbird: What Went Wrong?” transformation_judiciary.pdf. Web.
Free Speech and Communism in
Colonial South Africa
Rex v Roux and Ngedlane (1936)
Z ACK I E ACH M AT

On 12 March 1936, a South African court publishing an article in the communist


heard a case on free speech, the king of newspaper urging Africans to boycott the
(segregated) celebrations of King George V’s
England, and communism. Rex v Roux
silver jubilee” (x–xi).
and Ngedlane is a criminal case against
two leaders of the Communist Party of They had written:
South Africa (CPSA), Edward Roux and “Who is King George anyway?
Josiah Ngedlane. Roux and Ngedlane “Who is this King George?
were charged with the crime of insulting “Remember the blood that was shed at
King George V in their capacity as edi- Cartwright's Flats. We the Bantu people
tors of the Communist Party newspaper, and workers of Durban have been asked to
Umsebenzi. (Umsebenzi means “Worker” celebrate the Silver Jubilee of King George
V on May 6th, the 25th anniversary of his
in Xhosa.)
accession to the Throne.
In his autobiography, Edward
“Who is this King George and why
(“Eddie”) Roux explains: should we celebrate his jubilee?
“In 1935 Josiah Ngedlane and I were jointly “King George is the figure-head of the
charged with the crime of lese majeste for English and Boer Imperialists whose local
representatives are Hertzog and Smuts.
These oppressors are robbing and exploit-
The Union of South Africa had been ing the poor people and workers of South
created as a dominion of the British Africa, in particular the Bantu people.
Empire in 1910, the same year George V “The soldiers of King George's father
became the king of England. In 1931, the (King Edward VII) killed Bambata and cut
United Kingdom passed the Statute of off his head because he led the struggle
Westminster which gave all of its domin- against the poll tax in 1906.
ions “legislative equality”. This meant “It was the police of King George's lick-
that the United Kingdom could no longer spittle South African Government who shot
legislate on behalf of South Africa and down the people of Durban in the [Indus-
other dominions. However, until 1950 trial and Commercial Workers' Union] ICU
lawyers could appeal legal disputes to the riots in 1929.
Judicial Committee of the Privy Council in “It was the police of Durban Borough
London. George V died shortly before Rex
Council which is calling upon you to cel-
v Roux and Ngedlane came to trial.
ebrate King George's Jubilee that murdered

11
12 PLJ • 2013 • Issue 1

Johannes Nkosi, brave leader of the Com- laesae majestatis to enter a house of ill fame
munist Party, on these very Cartwright's or a latrine with money in one's possession
Flats at the pass-burning on Dingaan's Day, or a ring on one's finger, bearing the image
1930. of the Princeps” (Rex v Roux and Ngedlane,
“Workers and oppressed people of Dur- para. 17–18).
ban: do not be bluffed by this King George
In his judgment, Judge Curlewis traced
nonsense. Do not kiss the boot that kicks
you. Refuse to worship King George, he is
the right to free speech derived from
not our king but the king of our oppres- Roman times and from Roman-Dutch
sors. Unite in protest against pass-laws, law. He explains how the Emperor
liquor laws and all other forms of oppres- Augustus tried to limit the Roman peo-
sion. Demand freedom in our land of your ple’s right to free speech by criminalising
fathers. Refuse to go to Cartwright's Flats, language that insulted the ruler. He did
the place where our martyrs were murdered
not succeed for long because later emper-
in 1929 and 1930” (quoted in Rex v Roux
ors and jurists dismissed the crime as an
and Ngedlane, para. 3).
unjustified limitation of free speech.
The state complained that they published Appeal Judge Beyers (writing in Afri-
words that scandalously injured and dis- kaans and concurring with the majority)
honoured “the dignity and power” of pointed out that in the Roman Republic,
the King and his government (quoted in words alone could not be punished —
Rex v Roux and Ngedlane, para. 1). A mag- crimes were only recognised on the basis
istrate in Durban sentenced Roux and of deeds. Writing of the Communist edi-
Ngedlane to hard labour for this crime. tors, Judge Beyers wrote (my translation):
Roux and Ngedlane unsuccessfully
“The Union is a democratic state, and one
appealed the case to the Supreme Court
could understand such a prosecution under
(Natal Provincial Division). Afterwards military rule, or, in an autocracy, but not
they appealed to the Appellate Division in an enlightened century or generation
of the Supreme Court based in Bloem- where the state is based on the free and
fontein — then the highest court in unimpeded will of the people (onbelem­
South Africa. merde volkswil), and, where every citizen is
free to express their opinion on the state
On 17 April 1936, in a unanimous
of public affairs or politics freely. Naturally,
judgment, Appeal Judge Curlewis
if legislation went out of its way to crimi-
quashed the conviction with these nalise certain expression which would not
words: otherwise be punishable, then the courts
“…[W]e under the conditions of our mod- would have to give effect to it. However,
ern civilisation and development, and of here we are being asked to use the obsolete
our political liberty and freedom of thought rubric of crimen laesae Majestatis … of cen-
and speech, cannot be expected to accept turies bygone to cover the offending words.
the narrow and restricted views of the 16th “Were we to do so, then anyone who
to the 18th centuries as regards criticism of writes similar words about the Senate or
the Monarch, as applicable in the present Parliament (and possibly of Senators and
state of our political advancement. Members of Parliament) could be crimi-
“We have travelled a long way on the nally prosecuted and exposed to punish-
road of freedom of speech and of political ment” (Rex v Roux and Ngedlane, para.
criticism since the days when it was a crime 55–56).
Free Speech and Communism in Colonial South Africa 13

Judge Beyers pointed out that if the


Further reading
Court upheld the convictions of Roux
and Ngedlane, any person who advo- Wikipedia. “George V.” Accessed Aug
2013. http://en.wikipedia.org/wiki/
cated for a republic or independence
George_V. Web.
from Britain (including at least two par- —. “Statute of Westminster 1931.”
ties in Parliament) would be breaking Accessed Aug 2013. http://
the law. For him, sovereignty and maj- en.wikipedia.org/wiki/Statute_of_
esty lay with the people and the courts Westminster_1931. Web.
—. “Union of South Africa.” Accessed
should not violate citizens’ common law
August 2013. http://en.wikipedia.
right to freely criticise King, Cabinet, or org/wiki/Union_of_South_Africa.
Parliament. Web.
These words were spoken by a colo-
nial court in defence of freedom of
speech and expression. Today, they are
References
codified in our Constitution after their
Rex v Roux and Ngedlane 1936 (AD) 271.
erosion under apartheid. Regrettably,
Roux, Edward. Time Longer Than Rope:
ANC and government leaders have for-
The Black Man’s Struggle for Freedom
gotten the rich history of South Africa’s
in South Africa. London: University
freedom struggle and the role of news-
of Wisconsin Press, 1978.
papers, including those of the liberation
movement.
Train Apartheid in Cape Town
Rex v Abdurahman (1950)
M A X TAY LO R

In 1948, when the National Party took power on its apartheid ticket, District Six in Cape
Town could still be described as multicultural and relatively tolerant. Despite impeding
crackdowns by the apartheid government, it was to remain a multiracial community until
1966 when BJ Vorster’s government declared it a Whites Only area.
One family who made District Six its home was that of Abdullah and Margaret
May Abdurahman. Dr Abdurahman was Cape Town’s first black city councillor, as well
as the leader of the African Political Organisation (APO). Cissie (Zainunnisa) Gool, Dr
Abdurahman’s daughter from a previous marriage, became the first black woman lawyer
to graduate from law school in South Africa. Cissie was also elected to the Cape Town City
Council, where she represented District Six from 1938 to 1951.
Dr Abdurahman’s nephew, AE (“Sonny”) Abdurahman, later became the secretary of
the APO and played a part in resisting the implementation of apartheid on trains (Richard
Dudley, p. 202).
See the Wikipedia articles listed under Further Reading for more information.

During the First World War, under Louis tan Cape Town was the notable excep-
Botha’s government, Parliament passed tion to this norm.
the Railways and Harbours Regulation, More and more “Whites Only” signs
Control, and Management Act (1916). had appeared around railway stations in
This gave the state’s railway authori- Cape Town over the course of the 1940s,
ties the power to make regulations that but racial segregation had not yet been
allowed train companies to reserve rail- enforced. After the National Party’s 1948
way premises or coaches for the exclusive election victory, however, Capetonians
use of particular genders, races, or “dif- did not need to wait long for the wheels
ferent classes of persons or natives”. By of train apartheid to start turning.
making regulations under this Act, South In early August 1948, the Railway
African railway authorities enforced pol- Administration issued a designation
icies of racial segregation on trains and declaring that from 16 August, cer-
in railway stations throughout the 1920s tain first-class train carriages on Cape
and 1930s. Town railway routes would be reserved
By 1948, racial segregation on South for “Europeans only” (in other words,
African trains and in railway stations whites only). The Administration took
was already going full steam. Metropoli- this designation to be a lawful exercise

14
Train Apartheid in Cape Town 15

of its powers under amended railway reg- Although police began to flood the
ulations, which had been in force since platform, the majority of those who had
1937. entered the carriages stood their ground
Accordingly, on 15 August “Whites until the train left the station, to much
Only, Slegs Blankes” signs were erected excitement and cheering. Police rein-
on designated first-class train carriages forcements then began cordoning off
on the Cape Town–Simonstown, Cape the “Europeans only” carriages of other
Town–Bellville, and Cape Flats routes, trains waiting for departure and very
with the new rules initially supposed to few further protesters entered these car-
come into effect the next day. riages. The crowd eventually thinned
The new policy caused shockwaves in out and no arrests were made on the day
Cape Town, particularly among the col- (Cape Times, 6 September 1948).
oured community — people were unsur- Following the protest, however,
prisingly infuriated by the state tram- Abdurahman and nine other TARC com-
pling on what little freedom and dignity mittee members were prosecuted for
it still allowed them. On 18 August 1948 incitement to commit a breach of the
a broad coalition of political actors peace, as well as for breaching section
formed the Train Apartheid Resistance 36(b) of the Railways and Harbours Reg-
Committee (TARC). ulation, Control and Management Act.
The Railway Administration ended All were acquitted from the charges with
up waiting three weeks before enforcing the exception of Abdurahman, who was
the new rules. On Sunday 5 September, convicted and ordered to pay a fine. The
TARC held a rally at the Grand Parade in conviction was upheld in the Cape Pro-
central Cape Town, aiming to galvanise vincial Division. Abdurahman was then
outraged citizens into implementing a granted leave to appeal to the Appellate
campaign of mass civil disobedience. Division.
The 6 September edition of the Cape In its judgment, delivered on 22 May
Times declared: “Plan to Oppose Apart- 1950, the Appellate Division unani-
heid: Volunteer Force of Resisters: Lively mously upheld Abdurahman’s appeal,
Scenes in Station”. As many as 4,000 so- setting aside his conviction and sen-
called “Non-Europeans” attended, an tence. The judgment was delivered by
unprecedented figure for a rally of its Judge Centlivres, who had been at the
sort. Appellate Division for 11 years.
AE (“Sonny”) Abdurahman addressed The Court found that although the
the crowd in his capacity as the secre- regulation under whose authority the
tary of TARC. He urged those who had Railway Administration had imple-
gathered: “Go home now. Use the whole mented train apartheid was valid, the
train; but do it quietly.” Needing little policy itself constituted an unauthorised
encouragement, hundreds of protesters application of that regulation, in that it
marched towards the central station and authorised unequal discrimination —
streamed into the “Europeans only” car- that is, it applied racial apartheid “on
riages of a train bound for Fish Hoek. a footing of partiality or inequality”.
Because the reservation of carriages for
16 PLJ • 2013 • Issue 1

“Europeans only” was unauthorised, This meant that if some carriages were
Judge Centlivres held that non-Europe- marked “Europeans only”, white people
ans ignoring the reservation could not be could use those carriages or any other
deemed to have committed an offence. carriages of the train as they pleased.
Consequently, although Abdurahman This was indeed how train apartheid
had indeed incited such behaviour, his operated on Cape Town trains: although
incitement, too, did not amount to an black people could not enter “Europe-
offence. ans only” carriages, white people were
The facts of the case were not in dis- allowed to travel in any carriages they
pute: Abdurahman acknowledged that wanted to. The question, then, was: did
he had encouraged non-whites at the this sanction partial and unequal treat-
Grand Parade to defy the new apartheid ment as between members of difference
policy and enter designated “Europeans races, rendering the regulation invalid?
only” carriages. The Court found that the regulation
In coming to his decision, Judge Cen- could in principle be applied impartially
tlivres applied a common law principle and so the regulation was not invalid.
found in existing case law, namely that Judge Centlivres reasoned as follows:
the Court should find a regulation or “For instance, a train may bear notices
by-law invalid on the ground of unrea- indicating that certain coaches are reserved
sonableness if it is “partial and unequal” for the exclusive use of Europeans and the
in its operation between different classes next train may bear notices indicating that
of persons. (An exception allowed the certain coaches are reserved for the exclu-
sive use of non-Europeans, and so on alter-
Court to ignore this principle but only if
nately in rotation.”
the enabling Act specifically authorised
such partiality and inequality.) Judge However, the apartheid government
Centlivres later clarified that such ine- had not applied the regulation in this
quality must be “substantial”, although way. There were of course no trains with
it did not need to pass the stronger test carriages (first-class or otherwise) exclu-
(as the state had contended) of being “in sively designated for non-Europeans; the
all the circumstances manifestly unjust train apartheid policy had the effect of
or oppressive.”1 restricting the movement of non-Euro-
The relevant regulation to this case peans, while leaving white people free
specified that where part of a train was to enter any carriage they desired. Judge
reserved for passengers belonging to a Centlivres therefore stated:
particular race (in this case white peo- “… as an invariable practice, all trains bear
ple), “the other coaches forming part of notices that certain coaches are reserved for
that train … shall not be deemed to be the exclusive use of Europeans and in no
reserved for the exclusive use of persons case are any coaches reserved for the exclu-
sive use of non-Europeans. Consequently
of any particular race”.
the manner in which the regulation has
been applied results in a partial and une-
1 In this part of his ruling, Judge Centlivres qual treatment of one section of the com-
relied on two previous cases: Kruse v Johnson
(1898) and Rex v Carelse (1943).
Train Apartheid in Cape Town 17

munity as compared with the treatment Furthermore, as Judge Centlivres


meted out to another section.” noted in his judgment, all the apartheid
Only “Non-Europeans” were prevented government needed to do to override the
from using any portion of running effect of judgments they disliked was to
trains, and they were the only group pass legislation explicitly conferring the
liable to “criminal sanction” for disobey- power on state organs to discriminate as
ing this regulation. While the Court did they pleased.
not find Regulation 20 to be invalid in Indeed, this was precisely what the
principle, it did find that the apartheid legislature did by passing the Reserva-
authorities had applied it improperly, tion of Separate Amenities Act (1953).
because it resulted in substantial partial- Sections 2 and 3 of this Act expressly
ity and inequality between members of allowed authorities to provide separate
different races. facilities for different races and removed
On this basis, the Court found that the the courts’ power to intervene when
train apartheid policy was void, because such segregation resulted in substantial
it went further than it was allowed to by inequality. This was a stark reminder
either Parliament or the 1946 amended that without a set of constitutionally-
regulations. Those non-Europeans who guaranteed rights, the legislature could
had defied the restrictions had therefore quite easily trample progressive judicial
committed no offence and Abdurah- decisions.
man, consequently, could not be guilty
of criminal incitement. His conviction Further reading
and sentence were thus set aside. Wikipedia. “Abdullah Abdurahman.”
R v Abdurahman can be seen as a very Accessed Aug 2013. http://
small victory for those resisting apart- en.wikipedia.org/wiki/Abdullah_
heid in its early days. John Dugard, in Abdurahman. Web.
—. “District Six.” Accessed Aug 2013.
Human Rights and the South African Legal
http://en.wikipedia.org/wiki/
Order, describes the case as an example of District_Six. Web.
the Appellate Division’s “commitment to —. “Zainunnisa Gool.” Accessed Aug
the principle of equality before the law” 2013. http://en.wikipedia.org/wiki/
in the early 1950s (p. 318). Zainunnisa_Gool. Web.
The Malan government would cer-
tainly not have liked the judgment of
the Appellate Division. However, as References
Ian Loveland notes in By Due Process of Dudley, Richard. “Forced Removals —
Law?, we should not overstate the poten- The Essential Meaning of District
tial emancipatory effect of the case. For Six.” The Struggle for District Six: Past
one thing, the Court’s requirement that and Present. Ed. Shamil Jeppie &
racial segregation not result in “sub- Crain Soudien. Cape Town: Buchu
stantial” inequality seemed to implic- Books, 1990.
itly sanction segregation on the basis of
minor inequality.
18 PLJ • 2013 • Issue 1

Dugard, CJR. Human Rights and the to Vote in South Africa, Africa, 1855–
South African Legal Order. New Jersey: 1960. Oregon: Hart Publishing, 1999.
Princeton University Press, 1978. Rex v Abdurahman 1950 (3) SA 136 (AD).
Kruse v Johnson 1898 (2) 91 (QB).. Rex v Carelse 1943 (CPD) 242.
Loveland, Ian. By Due Process of Law?
Racial Discrimination and the Right
BJ Vorster’s War against White
Students
NUSAS and the 1956 Riotous
Assemblies Act
B RU CE BA IGR I E A N D Z ACK I E ACH M AT

Why have we forgotten the importance and Latin America met student mobilisa-
of the 5 June 1972 protest at St George’s tion with violence, by arresting, detain-
Cathedral in our struggle for freedom? ing, torturing, and “disappearing” high
And why do we only remember 16 June school and university students.
1976 through the words of politicians? South Africa has a rich history of
Oppressive regimes and their policies youth and student rebellion dating
have often been overcome through mass back to the 1930s, with hunger-strikes
unarmed resistance, including symbolic at schools and universities. After the
protests, civil disobedience, and eco- crushing of liberation movements in
nomic or political non-cooperation, and the early 1960s, students and youth
the youth have often been at the centre
of modern revolutions.
Student protests and youth
During the Arab Revolutions, which
revolutions
were led by youth, millions of people
There are numerous examples of
mobilised across the Middle East and
famous youth and student protests,
North Africa to topple tyrannical dicta- dating back as far as the University of
tors. Palestinian youth join Israeli com- Paris strike of 1229. Possibly the most
rades to resist occupation and apartheid famous recent examples happened in
daily in the Occupied Palestinian Territo- May 1968, when French student pro-
tests made headline news across the
ries. Chilean youth have creatively mobi-
world; another series of uprisings with
lised on an impressive scale. Students in youth as a major part happened during
Montreal, resisting higher university fees 2010, over the course of what became
through non-violent struggle, were met by known as the Arab Revolutions or the
police brutality and the declaration of a Arab Spring.
See the Wikipedia articles listed in
state of emergency.
the Further Reading section for more
The regimes under threat often
information about these and other
respond with violence. During the 1970s youth revolutions.
and 1980s, government forces in Central

19
20 PLJ • 2013 • Issue 1

were led by people such as Steve Biko, dents. This version of our history leaves
Mamphela Ramphele, Abraham Tiro, out vital elements, including facts con-
Geoff Budlender, Cheryl Carolus, Sheila tained in legal judgments.
Lapinsky, and Paula Ensor. Few people One example of a story that has been
know this history. Almost every young ignored is that of white students who
person who wants to rebuild our coun- mobilised thousands of people on June
try, continent, and the world will build 5, 1972.
their future struggles on the example of The State v Turrell and Others (1972)
their parents and grandparents. (“Turrell”) is a landmark case where
The apartheid government responded Prime Minister BJ Vorster attempted to
to youth in the same brutal way used by convict 14 students and 2 clergymen
oppressive governments today: through who protested outside St George’s Cathe-
state-sanctioned violence. Abraham Tiro, dral on Wale Street in Cape Town (Tur­
Rick Turner, Steve Biko, and Neil Aggett rell, para. 1). The students were members
were murdered in apartheid jails. Apart- of the National Union of South African
heid security forces mowed down Hector Students (NUSAS), who had organised a
Pietersen, Bernard Fortuin, and hundreds march to defend their right to peaceful
of others in the 1970s and the 1980s. Rac- protest. NUSAS started as a mainly white
ist and oppressive laws allowed the state liberal student organisation, but it later
to “legally” crush resistance through the became radicalised and helped to build
police and the army. the workers’ movement.
Vorster feared the actions of NUSAS,
Most of the historical information in largely due to the effectiveness of student
this article comes from personal recol- protests in the United States and Europe.
lection. For more information about the The students were attempting to focus
activists mentioned, including examples international attention on the injus-
of student resistance to apartheid, visit
tices of apartheid, which was beginning
South African History Online (see the
Further Reading section).
to face serious opposition abroad. Vor-
ster’s other fear was the spread of com-
munism, known as the “Rooi Gevaar”
Every June, people in South Africa
(“Red Danger”), as many of the NUSAS
celebrate Youth Month in a democratic
students were illegally distributing com-
South Africa. This public celebration
munist and socialist literature.
(driven mainly by political leaders) has
Vorster orchestrated a campaign
obscured our youth and student history
against the students with police forces
with myths, partial truths, and fairy
disrupting their protests, intimidating
tales.
students, and attempting to infiltrate
Learners in South African schools
NUSAS with spies. The latter often
know and learn a little about the lead-
involved police threatening students
ership and struggles of black African
with criminal records if they did not
youth. However, they are taught almost
cooperate, or promising to clear their
nothing about the struggles of white,
existing records if they did. Craig Wil-
coloured, and Indian youth and stu-
liamson, the apartheid spy who sent the
BJ Vorster’s War against White Students 21

parcel bombs that killed Ruth First and Ironically but predictably, the police
NUSAS Deputy Chairperson Jeanette responded to the protest with extreme
Schoon, also infiltrated NUSAS and later violence (Turrell para. 7–8). Professor Pat-
the ANC. Students conversations were rick Harris, who attended the protest as
recorded, their letters opened, and in a student, said that police beat him and
some cases their passports were two women next to him with plastic
confiscated. batons. Paula Ensor, who was an execu-
The ultimate action of the state was to tive member of NUSAS and later became
ban all the NUSAS student leaders after Dean of Humanities at UCT, described
they started trying to mobilise workers how police came into the church from
by stimulating wage commissions. behind the altar to viciously beat stu-
Before the Turrell case, NUSAS stu- dents. Even a pregnant woman was
dents held protests after various black thrown to the ground.
students were expelled from universi- In court the state tried to convict the
ties for criticising the racist Bantu edu- protestors under the despotic Riotous
cation system. Police violently broke up Assemblies Act of 1956 (“the Act”) (Tur­
a protest at UCT with batons and tear- rell para. 1) but they hardly got the out-
gas. NUSAS was not cowed and organ- come they were hoping for.
ised another protest in the centre of The Act made it an offence for more
Cape Town on the corner of Wale and than 12 people to assemble if a magis-
Adderley streets, next to Parliament, on trate had issued a notice declaring the
the steps of St George’s Cathedral (Tur­ gathering unlawful. This allowed the
rell para. 3). The theme of the protest was state to prohibit anti-apartheid gather-
police brutality (Turrell para. 8). ings and authorised the police to use
brute force to disperse protesters.

The Truth and Reconciliation Commission (TRC) heard many stories of apartheid oppres-
sion, which included acts targeting young white anti-apartheid and anti-conscription
activists.
In Volume 6 of the Final Report, the TRC notes:
“An unidentified security policeman … admitted to arson, damage to property, intimi-
dation and conspiracy during the early 1990s, and carrying out actions … targeted
[at] white activists such as members of the End Conscription Campaign (ECC) and the
National Union of South African Students (Nusas) affiliates and involved the creation
and distribution of Stratcom-style pamphlets in the name of the Wit Wolwe [‘White
Wolves’].” (Sec. 3, ch. 6. subsection 6, para. 61–63)
NUSAS was investigated by the Schlebusch Commission (1972–73): “This Commission laid
the groundwork for a clamp-down on these organisations. Numerous Cape-based people
refused to testify and consequently faced legal action and banning orders” (TRC Final
Report, vol. 3, ch. 5, subsection 5).
The transcript of Craig Williamson’s amnesty hearing, where he discusses infiltrat-
ing NUSAS and his relationships with other young white activists, is available from the
Department of Justice and Constitutional Development website:
http://www.justice.gov.za/trc/amntrans/1998/98090829_pre_2pretor7.htm
22 PLJ • 2013 • Issue 1

Although the students were convicted guards these rights jealously for they are part
in the regional court, they appealed of the very foundations upon which Parliament
to the Cape Provincial Division. Judge itself rests. Free assembly is a most impor-
tant right for it is generally only organised
Van Zijl found that the notice was ultra
public opinion that carries weight and it is
vires in that the acting chief magistrate
extremely difficult to organise it if there
had exceeded his authority and prohib- is no right of public assembly.” (Turrell
ited the assembly of a class of gathering para. 4, emphasis added.)
— that is, any protest meetings (Turrell
Of course it was exactly this kind of pro-
para. 58). In other words, the magistrate
test that Parliament under BJ Vorster had
had attempted to ban all public gather-
attempted to suppress through the Riot-
ings on that day, whereas the Act only
ous Assemblies Act.
authorised him to prohibit a clearly iden-
tified and particular gathering (Turrell Consequences of the police
para. 35 and 37). reaction
Furthermore, the magistrate’s notice
The extreme hatred and violence of
failed to indicate with reasonable cer-
the police, although ignored by the
tainty which gathering it was supposed
Court during the trial, was certainly not
to prohibit (Turrell para. 45). He also did
ignored in the press. For the first time,
not promulgate the notice in accord-
middle-class white people were exposed
ance with the provisions of the Act,
to the brutal tactics of the police that
which demanded that the magistrate
had previously been used only against
give the public sufficient notice of the
black protestors.
banned gathering (Turrell para. 39 and
Condemnation came from many
41–44).
sectors, even by some members of the
The Court also found that the
Nationalist Party. Predictably, Vorster
accused had committed no offence
responded to the incident by saying he
because the Act required the acting
was proud of his police and issuing a
police officer to repeat the order to dis-
warning to English-speaking universi-
perse three times (Turrell para. 53); the
ties. However, the protest did lead to
police were also required to warn those
internal pressure on the police, whose
assembled that force would be used if
actions were more closely monitored and
they failed to comply with the order to
who lost public sympathy as a result of
disperse (Turrell para. 52). The officer
the violence, particularly in Cape Town.
failed to do so and so the charge fell
Although NUSAS was crippled for a
away because it was a requisite for the
time after the government banned its
commission of the offence. The appel-
leaders, these bans backfired because
lants won on all their cases of appeal
they further invigorated student protests
(Turrell para. 65).
during the 1970s. Radicalised by Steve
In an otherwise conservative judg-
Biko, Strini Moodley, and other members
ment, Justice Van Zijl wrote:
of the South African Students Organisa-
“Freedom of speech and freedom of assem- tion (SASO), white students played a sig-
bly are part of the democratic rights of
nificant role in the liberation movement.
every citizen of the Republic and Parliament
BJ Vorster’s War against White Students 23

SASO split from NUSAS in 1968. See Further reading


Steve Biko, “SASO — Its Role, Its South African History Online. http://
Significance and Its Future”. www.sahistory.org.za. Web.
—. “Anti apartheid activist Dr. Richard
Turner is assassinated.” http://www.
During this period they embarked on
sahistory.org.za/dated-event/anti-
many campaigns, including the “Free apartheid-activist-dr-richard-turner-
Political Prisoners” campaign in 1974, assassinated. Web.
and contributed to the campaign to —. “Banning orders served on NUSAS
get international boycotts of apartheid leaders.” http://www.sahistory.org.
za/dated-event/banning-orders-
South Africa. In the 1980s, NUSAS also
served-nusas-leaders. Web.
joined forces with mass anti-apartheid —. “National Union of South African
groups such as the United Democratic Students (NUSAS).” http://www.
Front (UDF) and the Azanian Students sahistory.org.za/topic/national-
Organisation (AZASO), which was union-south-african-students-nusas.
formed after SASO was banned. A major Web.
—. “NUSAS President Ian Robertson is
contribution to our liberation movement
banned.” http://www.sahistory.org.
was the creation of student newspapers za/dated-event/nusas-president-
such as SASPU, journals such as Work in ian-robertson-banned. Web.
Progress, and political literature often Wikipedia. “2011 Israeli border demon-
banned for public use but allowed for use strations.” http://en.wikipedia.org/
wiki/2011_Israeli_border_demon-
by academics.
strations. Web.
The People’s Law Journal pays tribute —. “2011 Palestinian protests.” http://
to the students of 5 June 1972 and their en.wikipedia.org/wiki/2011_
legacy. Palestinian_protests. Web.
—. “2011–12 Chilean student protests.”
References http://en.wikipedia.org/wiki/2011_
student_protests_in_Chile. Web.
Biko, Steve. “SASO — Its Role, Its Signifi-
—. “2012 Quebec student protests.”
cance and Its Future.” I Write What https://en.wikipedia.org/wiki/2012_
I Like: A Selection of His Writings. Ed. Quebec_student_protests. Web.
Aelred Stubbs. NP: Picador, 2012. —. “Arab Spring.” http://en.wikipedia.
S v Turrell and Others (1973); SA 248 (C). org/wiki/Arab_Spring. Web.
—. “May 1968 events in France.” http://
Truth and Reconciliation Commission.
en.wikipedia.org/wiki/May_1968_
Final Report. Department of Justice
uprisings. Web.
and Constitutional Development. —. “Student protests.” http://
Accessed Aug 2013. http://www. en.wikipedia.org/wiki/Student_pro-
justice.gov.za/trc/report/. Web. tests. Web.
History of South African Law
Development from 1652 to the present (excluding customary law)
GREGORY SOLIK ( TE XT ) • ROGER L A NDM A N (GR A PHICS)
1652 1827 1948 1996
The Dutch bring Roman-Dutch law to After 1827, all legal processes had to be The National Party comes to South Africa’s Final Constitution is
South Africa when they occupy the held in English and documents prepared power, institutionalising passed, after being certified by the
Cape of Good Hope. in English. Slowly English judges and apartheid in legislation. Constitutional Court.
authorities find ways to incorporate
English rules and procedures which they
were more familiar with.
1961
1795 1843 1910 The Republic of South Africa is
The Cape Colony comes under British rule. Natal is annexed by the The Union of South declared and its constitution 1993
This is where things get a little mixed, but British but continues to Africa is formed and written; this does not contain South Africa passes the
Roman-Dutch law continues to be in force. use Roman-Dutch law. the law is standardised. basic rights. Interim Constitution.
1600 1650 1700 1750 1800 1825 1850 1875 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000 2010
ROMAN DUTCH LAW BRITISH LAW UNION OF SOUTH AFRICA LAW NEW CONSTITUTION
1830s and 1840s
15th to 19th century The Great Trek: Boers migrate away
Roman-Dutch law is developed in the from British control in the Cape Colony.
Netherlands. The most important legal The Boer Republics (the Orange Free 1880–1881 and 1899–1902
rules from 1075-1795 are recorded in State, Transvaal, and Natal) continue to The Anglo-Boer Wars. The British win the 1948–1994
the Groot Placaetboek. second Anglo-Boer War. Apartheid.
use Roman-Dutch law.
24 25
A Permanent Space for Justice
Rikhotso v East Rand Administrator
Board (1983)
WA N D ISA PH A M A A N D L ISA D R AG A

In loving memory of legal legend Arthur Chaskalson, on the 100th anniversary of the 1913
Land Act and the 30th anniversary of the Rikhotso victory.

Apartheid spatial and legal


Since the other day,
engineering
At the pass office,
When I went to get employment, Rikhotso’s story is the story of mil-
The officer there endorsed me to lions of black workers of the time. The
Middleburg, apartheid system sought to divide South
So I said, hard and with all my might, Africa into a number of separate areas,
“Shit!”
first “reserves” and later “homelands”,
I felt a little better;
But what’s good, is, I said it in his face, with each area designated for a specific
A thing my father wouldn’t dare do ethnic group.
That’s what’s in this black “Shit”. White people lived in the urban parts
— Mongane Wally Serote of the country and black people were
“What’s in This Black Shit” expected to live, work, and raise families
in “reserves”, “homelands”, and town-
ships designated to them by the National
Tom Rikhotso began working as a
Party government. Pass laws were an
machinist for Hargram Engineering in
attempt to enforce the racial divide by
Katlehong, in the area of Germiston,
making it difficult for black people to
Johannesburg, in August 1970 (Rikhotso
move in the cities. They allowed police
1982, p. 283). By this time, apartheid
officers to stop any black person and
laws and policies were already firmly in
demand to see their pass book.1
place. This included the Land Act, the
Despite this legally created divide
Group Areas Act, the Bantu Authori-
between black and white South Africans
ties Act, and the Separate Amenities
and the areas each racial or ethnic group
Act. These segregationist laws aimed to
would occupy, large numbers of black
ensure that white and black South Afri-
men came to urban areas in search of
cans would not share common spaces or
use the same facilities.
1 See Callinicos, Vol. One, p. 41.

26
A Permanent Space for Justice 27

The 1913 Land Act divided South Africa into separate areas that were designed as “whites
only” or “Africans only” areas. This meant that “no whites could own land in African areas,
and no Africans could own land in white areas, except in the Cape. If Africans lived on
white-owned land, they [had to] work for the landowner. Otherwise, they [had to] live as
farmers in the tribal areas” (Callinicos, Vol. One, p. 25).
Additional laws passed afterwards further restricted people’s ability to use and own
land, aimed at forcing more black South Africans to enter the workforce, thereby provid-
ing cheap labour for white farmers, industrialists, and mine bosses (see for example Luli
Callinicos, Vol. One, ch. 5–9). The Bantu Authorities Act of 1951 replaced the reserves with
a system of homelands, which “were subsequently granted independent status by the
central government” (South Africa History Online, “Apartheid Legislation 1850s–1970s”).
For a description of the lives and working conditions of migrant workers up to 1940, see
for example the two volumes of A People’s History of South Africa by Luli Callinicos, listed
under Further Reading. The Worker’s Museum in Johannesburg focuses on the lives of
migrant workers on the mines.

work. In the cities these men were classi- The Act allowed black urban work-
fied as “migrant labourers”. ers to obtain permanent residence sta-
Men like Tom Rikhotso were forced tus and therefore live permanently with
to experience the hardship and pain of their families in the areas in which they
leaving their wives and children behind worked. However, the Act’s strict require-
because the law did not permit their ments prevented many black workers
families to move to the urban areas with from qualifying for permanent residency
them. If a woman was found in the area status. To get permanent residence, Mr
where her husband worked and lived, she Rikhotso would have to show that he had
would face immediate arrest for being in “worked continuously in that area for one
the city illegally; her husband could also employer for a period not less than 10
be arrested or fined. years” (Rikhotso 1982, p. 279).
This apartheid system forced migrant
labourers to travel great distances and Always a migrant
live far away from their families in order In an effort to make it more difficult for
to secure work. Mr Rikhotso and many other migrant
The government also created rigid workers to get permanent residence,
laws designed to restrict the kind of the South African authorities required
employment that black migrant workers black migrant workers to conclude new
could get, as well as their terms of resi- contracts with their employers every
dence in urban areas. year and to have it approved by a labour
The Natives (Urban Areas) Consolida- officer. In this way it would be impossi-
tion Act of 1945, also known as the Black ble for a black migrant worker to remain
(Urban Areas) Consolidation Act or sim- in one contract of employment for ten
ply the Urban Areas Act (“the Act”) was years.
one such law. This was the law Mr Rik- As a result, towards the end of every
hotso would challenge to achieve a sem- year for a period of ten years dating
blance of justice. back to when he first started working for
28 PLJ • 2013 • Issue 1

­ argram Engineering, Mr Rikhotso was


H The High Court and the
compelled to enter into a fresh 11-month Appellate Division
contract with his employer. Thus at the Given the predominantly conservative
end of every period of employment, make-up of the bench at that time, this
during what was considered by both was by no means a guaranteed legal vic-
employer and Mr Rikhotso as his “annual tory, but the Witwatersrand Local Divi-
leave”, he made his way back to his wife sion found in Mr Rikhotso’s favour.
and children in the Ritivi district of the Judge Brian O’Donovan stated that
area of Gazankulu (Rikhotso 1982, p. 283). the case turned on the meaning of the
(Gazankulu was a Bantustan or apartheid words “worked continuously”. To deter-
homeland in Limpopo/Mpumalanga.) mine the meaning of the words, he
After working for the same employer looked at the purpose of the Urban Areas
for ten years, Mr Rikhotso approached a Act and concluded:
municipal labour officer to obtain per-
“Its purpose is to exempt from the prohibi-
mission to reside in Germiston on a per- tion against remaining in a prescribed area
manent basis and to have his pass book for more than 72 hours a small category of
endorsed to that effect. The labour officer persons of proved character ‘who can use-
refused to sign Mr Rikhotso’s pass book. fully or satisfactorily be absorbed in the
The labour officer reasoned that Mr Rik- economic life of the urban community in
question’.” (Rikhotso 1982, p. 285)
hotso had not worked for one employer
for a continuous period of at least 10 Judge O’Donovan concluded that it
years because he did not have one con- could never have been the intention of
tract of employment but several separate Parliament that a migrant worker would
contracts. His yearly trips to Gazankulu have to stay in one physical area for the
were considered a break in employment, entire ten years to qualify for permanent
making it impossible for Mr Rikhotso to residence status (Rikhotso 1982, p. 285).
qualify for permanent residence (Rikhotso Judge O’Donovan reasoned:
1982, p. 286–87).
“although [Mr Rikhotso’s] services were
Mr Rikhotso visited a Black Sash
rendered under a series of separate con-
advice office seeking legal assistance, tracts, he and the company had a common
where his case was referred to one of and continuing intention that he should
South Africa’s greatest human rights law- remain in employment; that the arrange-
yers, advocate Arthur Chaskalson. ments for the renewal of his contract were
Mr Chaskalson and Mr Rikhotso made each year before he went on paid
headed to the High Court, seeking an leave; that he attended to the formali-
ties of renewal of his contract during his
order that he was entitled to permanent
annual leave period; that he worked for no
residency. Mr Chaskalson would argue
one other than the company; and that his
that the apartheid state had conspired to absences from work for other causes have
prevent black people from ever qualify- occurred on isolated occasions only. On
ing for permanent residence status. these facts the applicant has … satisfied the
requirement of continuity in his work for a
period of at least 10 years. The question is
one of substance, and not of form. In real-
A Permanent Space for Justice 29

ity there were no breaks in the applicant’s Piet Koornhof, the Minister overseeing
employment. At most what was created was the implementation of the pass laws,
the semblance of a series of breaks.” (Rik­ introduced an amendment to the law
hotso 1982, p. 285–86)
aimed at limiting the effect of the court
To bolster his reasoning, the judge decision. The idea was simple: if migrant
pointed to a far more “fundamental” workers’ families had not yet taken up
flaw in the state’s case: the government permanent residence in an urban area,
had imposed the contract renewal sys- they would only be allowed to live
tem on black migrant workers with the together in a house or plot where their
aim of ensuring that they would not husband or father could show that he
qualify for permanent residence status. held leasehold rights. The chronic short-
This was a misuse of power for an ulte- age of housing at the time rendered this
rior aim, which was not allowed in law virtually impossible.
(Rikhotso 1982, p. 286). Koornhof’s amendment took effect
Although the High Court judgment on 26 August 1983.
was a splendid victory for Mr Rikhotso, Fortunately, we now live in a constitu-
celebrations were placed on hold when tional democracy where unlawful action
the state appealed the decision to the by the state — that violates people’s con-
Appellate Division, then South Africa’s stitutional rights such as the right to be
highest court. protected from unfair discrimination —
On 30 May 1983 the Appellate Divi- cannot be made legal simply by amend-
sion in Bloemfontein agreed with the ing a law.
High Court decision. Mr Rikhotso and But while Tom Rikhotso’s story
his family could now live as permanent played out under an oppressive, unjust
residents in Katlehong, Germiston (Rik­ system, similar stories continue to play
hotso 1983). out 30 years after the Rikhotso decision.
In a democratic South Africa, rural black
The effect of the Rikhotso fathers and husbands are still compelled
decision to leave their families for work, only to
What Mr Chaskalson did in this case suffer exploitation and to receive a wage
was to use the apartheid state’s own not capable of decently sustaining their
laws to bring attention to the injustices families.
of the pass law system. With this case It is for this and many other injus-
he exposed an unlawful aspect of the tices that South Africa’s new generation
state’s actions: it was breaking its own of lawyers should follow in the footsteps
racist law by searching for loopholes to of Chief Justice Arthur Chaskalson and
prevent this hard-working labourer from continue the fight for freedom. Indeed,
living with his family in an urban area. everyone living in South Africa should
The effect of the Appellate Division’s follow the example of Tom Rikhotso
decision was to peel away a layer of the and continue the battle against injustice,
unjust apartheid practices. including the geographic and income
Sadly, the immediate benefit of the inequality that persists in our townships,
Rikhotso judgment was short-lived. Dr
30 PLJ • 2013 • Issue 1

informal settlements, and other poor References


and working-class communities. Rikhotso v East Rand Administration Board
1983 (4) 278 (AD).
Further reading Rikhotso v East Rand Administration Board
Callinicos, Luli. A People’s History of and Another 1982 (1) SA 257 (W).
South Africa, Vol. One: Gold and
Workers 1886–1924. Johannesburg:
Ravan Press, 1985.
—. A People’s History of South Africa,
Vol. Two: Working Life: Factories,
Townships, and Popular Culture on
the Rand 1886–1940. Johannesburg:
Ravan Press, 1987.
Davis, Dennis and Michelle Le Roux.
“The Challenge to the Pass Laws:
The beginning of the end.”
Precedent and Possibility: The (ab)use
of law in South Africa. Juta and Co.,
1990, p. 60–80 (esp. 75–76).
South African History Online.
“Apartheid Legislation
1850s–1970s.” Web. http://www.
sahistory.org.za/politics-and-
society/apartheid-legislation-
1850s-1970s. Web.
Decriminalising Sodomy
NCGLE v Minister of Justice (1998)
DA N I EL H O FM E Y R

Sodomy has meant different things at different times and under different circumstances,
but people generally use it to refer to anything they consider “an unnatural sex act”. Over
the years and across the world, this has been used to refer to a variety of activities, includ-
ing some between men and women. In South Africa sodomy was a common law crime
although it was never a crime under the Criminal Procedure Act.
Queer is a broad term for people whose sexual orientation and/or gender identity dif-
fers from the norm. This includes people who are gay, lesbian, bisexual, transgender, or
intersex, as well as transvestites. For more information, see the Further Reading section.
A custodial offence is one that is subject to imprisonment: if someone is found guilty of
a custodial offence, the Court must send them to jail.

In the development of South African As a result, queer people in this country


law, the decriminalisation of sodomy were forced to move underground.
after apartheid was monumental. It
confirmed South Africa’s commitment Mark Gevisser gives an overview of vari-
to human rights and paved the way for eties of South African queer culture and
other litigation supporting equal rights communities in his essay, “A Different
for queer people. This would lead to Fight for Freedom: A history of South
African lesbian and gay organisation
many changes to criminal and civil law,
from the 1950s to 1990s” (Gevisser and
eventually leading to the Civil Union Cameron, p. 14–86). And Glen Retief’s
Act, which allows gay marriages. essay, “Keeping Sodom out of the
In highly conservative societies, gay Laager: State repression of homosexual-
men and other members of the queer ity in apartheid South Africa” (Gevisser
community are often portrayed as a and Cameron, p. 99–111) details the
National Party government campaigns
threat to society, as paedophiles, or as
against queer people.
predators. This was also true in apartheid
South Africa. As Mark Gevisser wrote in
“A Different Fight for Freedom”: Gay men were especially targeted and
harassed by the police, who would raid
“By the mid-1950s, the public image of
homosexuals swung between two ste-
houses and parties. In 1966 police raided
reotypes: the child molester and the drag a gay party in an affluent Johannesburg
queen”. (Gevisser and Cameron, p. 18) neighbourhood where more than 300

31
32 PLJ • 2013 • Issue 1

men were present. This was highly publi- whether the existing laws against homo-
cised and a number of people were sexuality was sufficient to “curb the prac-
arrested. (“‘Mass sex orgy’ in Forest tice”. This led to further amendments to
Town!” read one headline.) Although the Sexual Offences Act to ensure that
homosexuality was already a crime, this lesbians were also targeted.
raid led BJ Vorster, then the Minister of Apart from legislation aimed at “pun-
Justice, to complain that more stringent ishing” offenders, queer people were also
measures needed to be taken against targeted in the media. Any queer films
homosexuals, and that the current legis- or other material were banned from the
lation did not allow for this. (See Gevis- country. In the 1980s especially, media
ser and Cameron, especially p. 30–47.) reporting on queer “sex scandals” and
This led to amendments to the Sex- arrests were sensationalised and hysteric.
ual Offences Act (originally called the The reports seemed to confirm that South
Immorality Act) in 1967 and 1969. One Africa was being overrun with immoral-
of these — Section 20A of the Immoral- ity and perversion. The media indulged
ity Amendment Act, 1969 — specifically in the frenzied stereotype of the teenage
targeted gay men. It was known as the victim and the older monster, regardless
“men at a party” clause, and essentially of whether these relationships were con-
made it a crime for men to do anything senting and non-exploitative.
that a judge could interpret as being This was at a time when police brutal-
intended “to stimulate sexual passion”. ity was at its high point, and the police
In this case, a “party” meant any event were facing a crisis of mistrust by the
where three or more people were present. South African public. Gay men were easy
In 1985 the President’s Council targets. The police could arrest these
launched an investigation to determine “child molesters” and look like heroes
instead of villains.
However, in the 1990s the official sen-
Section 20A of the Immorality
Amendment Act, 1969
timents regarding homosexuality began
to change. In the case of S v M, the Court
“A male person who commits with
another male person at a party an act called for the judiciary to take notice
which is calculated to stimulate sexual that social acceptance of homosexuality
passion or to give sexual gratification, was increasing. At its National Confer-
shall be guilty of an offence.” ence in 1992, the ANC stated that the
The Immorality Amendment Act of
anti-discrimination clause in the Bill of
1950 raised the age of consent for gay
males to 19. This was seen as another
Rights should protect people from unfair
step to protect the youth from “preda- discrimination based on their sexual ori-
tory men”. entation. In S v H, the Court stated that
Edwin Cameron’s article, “Unappre­ although sodomy was still an offence,
hended Felons: Gays and lesbians and it “can rarely, if ever, justify a custodial
the law in South Africa”, describes how
offence” if referring to acts committed in
legislation in 1993 continued to discrimi-
nate against queer people (Gevisser and private by consenting adults.
Cameron, p. 89–98). The decision to explicitly include
sexual orientation in the Constitution’s
Decriminalising Sodomy 33

Precedents cited in NCGLE v the Minister of Police


In S v M (1990), the appellant was convicted in a Regional Magistrates’ Court of six counts
of sodomy involving boys of 11 and 12 years of age and four counts involving adult males.
He was sentenced to imprisonment on all counts.
On appeal, the Eastern Cape Division held that imprisonment was no longer an appro-
priate sentence for sodomy committed in private between adults. The appellant was thus
only sentenced to imprisonment on the counts of sodomy involving the underage boys.
In S v H (1993), a 23-year-old man was accused and convicted of sodomy committed
with another adult male in private. The accused was sentenced to 12 months’ imprison-
ment, which was totally suspended.
On review, the Cape Provincial Division held that public attitudes to homosexual rela-
tionships had changed and that publicly the opinion was growing that discrimination
against homosexuality should be eliminated. It held further that consensual adult sodomy
committed in private can hardly ever justify a custodial sentence. In the circumstances the
Court set aside the sentence and replaced it with one of a caution and discharge.

anti-discrimination or equality clause crimination — either by the state or by


was, predictably, a heated issue in the private people or organisations.
run-up to the constitutional debates. In December 1994, the National
However, by the time the Interim Consti- Coalition for Gay and Lesbian Equality
tution was being discussed, almost every (NCGLE) was founded (Hoad et al, Sex
political party supported the proposal to and Politics in South Africa, p. 212). The
include sexual orientation in the anti- NCGLE brought a number of cases to the
discrimination clause. (The only party Constitutional Court, the first of which
who objected was the ultra-conservative focused on decriminalising sodomy. In
African Christian Democratic Party.) Sec- common law up to 1994, sodomy was
tion 9 of the Final Constitution explic- technically a crime although it was sel-
itly protected sexual minorities from dis- dom prosecuted.

The Equality Clause — Section Nine of the Constitution


“9. (1) Everyone is equal before the law and has the right to equal protection and benefit
of the law.
“(2) Equality includes the full and equal enjoyment of all rights and freedoms. To pro-
mote the achievement of equality, legislative and other measures designed to protect or
advance persons, or categories of persons, disadvantaged by unfair discrimination may be
taken.
“(3) The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth.
“(4) No person may unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3). National legislation must be enacted to prevent
or prohibit unfair discrimination.
“(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination is fair.”
34 PLJ • 2013 • Issue 1

One such case was National Coali­ In its judgment, the Constitutional
tion for Gay and Lesbian Equality and Court confirmed that, after apartheid,
Another v the Minister of Justice and Oth­ South Africa’s legal system would no
ers (1998) (“NCGLE”). Here the Consti- longer try to impose a specific way of
tutional Court found that the common life on all members of society. In his
law offence (sodomy) and the “men at a concurring judgment, Judge Albie Sachs
party” clause infringed people’s rights wrote that this realisation has two
to equality, human dignity, and privacy. consequences:
Accordingly, it confirmed the ruling of “The first is that gays and lesbians can-
the Witwatersrand High Court, where not be forced to conform to heterosexual
Judge Heher declared that the “men at a norms. Second is that those persons who
party” clause was unconstitutional and for reasons of religious or other belief disa-
that it was unconstitutional to include gree with or condemn homosexual con-
duct are free to hold and articulate such
sodomy in Schedule 1 of the Criminal
beliefs …
Procedure Act and the schedule to the
Yet, while the Constitution protects
Security Officers Act. the right of people to continue with such
At the same time, the Court found beliefs, it does not allow the state to turn
that the concept of “sexual orientation”, these beliefs … into dogma imposed on the
as used in the equality clause, should be whole society” (NCGLE, para. 137).
interpreted in the most “generous” way The Court agreed that respect for differ-
possible, to apply equally to people who ence is at the heart of equality and that
are bisexual or transgender, regardless of South Africa should be measured on
whether or not they identify primarily as how it treats its minorities. In the major-
non-heterosexual (NCGLE, para. 21). ity judgment, Judge Lourens Ackermann

The Constitutional Court judgment describes some of the effects of including sodomy as
a Schedule 1 offence:
• Police officials could take fingerprints from anyone who had received a summons on
an accusation of sodomy;
• Peace officers and any private citizen could arrest anyone if they had a reason to “rea-
sonably suspect” them of having committed sodomy, with or without a valid warrant;
• Anyone authorised to arrest someone suspected of sodomy could kill the suspect if,
upon attempting to arrest them, they could not arrest the suspect, or if the suspect fled
and there was no other way to arrest the suspect or stop them from fleeing;
• Courts could refuse bail to an accused who was likely to commit sodomy and, in deter-
mining whether that will happen, the Court could take into account that the accused
had a disposition to do so or had previously committed sodomy while released on bail;
• Anyone who had given or who was likely to give material evidence in a case of sodomy
could be given witness protection;
• Members of the South African Police Service had wide powers to erect roadblocks in
the prevention, detection, and investigation of sodomy;
• Anyone convicted of sodomy was disqualified from receiving or continuing to receive a
pension; and their surviving spouse or other dependents would not receive their pen-
sion after they died. (NCGLE, para. 7)
Decriminalising Sodomy 35

quoted the judgment of the Canadian ety because you are what you are, and that
Supreme Court in Vriend v Alberta (1998): impinges on the dignity and self-worth of a
group” (NCGLE, para. 127).
“It is easy to say that everyone who is just
like ‘us’ is entitled to equality. Everyone The judgment confirmed that privacy
finds it more difficult to say that those who also includes the right to make your own
are ‘different’ from us in some way should decisions and find your own identity,
have the same equality rights that we and should not be limited to “sealing
enjoy” (quoted in NCGLE, para. 22).
off from state control what happens in
Vriend v Alberta related to a teacher who the bedroom”. Judge Sachs argued that,
had been fired from his job at a religious like the equality clause, the right to pri-
college because of his sexual orientation. vacy should be interpreted broadly. Cit-
The Canadian judge in that case, Peter ing another judgement from a US court,
Cory, also argued that it demeans the Sachs stated that privacy is not only “the
whole of society to say that any group right to be left alone”, “a negative right
is “less deserving and unworthy of equal of occupying private space free from
protection and benefit of the law”. Judge government intrusion”. Instead, it is the
Cory wrote: right “to get on with your life, express
“It is so deceptively simple and so devas- your personality and make fundamental
tatingly injurious to say that those who are decisions about your intimate relations
handicapped or of a different race, or reli- without penalisation” (NCGLE, para.
gion, or colour or sexual orientation are less 116).2
worthy” (quoted in NCGLE, para. 22).
This judgment confirmed the need
Judge Ackermann agreed, pointing out to bring South Africa’s common law in
that the European Court of Human line with the Constitution’s protections
Rights has “recognised the often serious for queer rights. It also promised us that
psychological harm” that gay people suf- the state would never again try to govern
fer as result of discrimination (NCGLE, our personal lives by prohibiting us from
para. 23). Judge Sachs cited similar case forming personal relationships — either
law from the United States,1 and sum- with someone of a different race or reli-
marised the principle broadly: gion, or of the same sex.
“In the case of gays, history and experi-
ence teach us that the scarring comes not References
from poverty or powerlessness, but from Bowers, Attorney General of Georgia v
invisibility. It is the tainting of desire, it Hardwick et al 1985 478 US 186.
is the attribution of perversity and shame United States.
to spontaneous bodily affection, it is the
City of Cleburn Text. v Cleburn Living
prohibition of the expression of love, it is
Center 1985 473 US 432. United
the denial of full moral citizenship in soci-
States.

1 Judge Sachs was citing City of Cleburn Text.


v Cleburn Living Center (1985), para. 473;
the judge in that case, in turn, was quoting 2 Judge Sachs was citing Blackmun in Bowers,
the earlier judgment of Holmes in New York Attorney General of Georgia v Hardwick et al
Trust Co. et al v Eisner (1921), para. 349. (1985).
36 PLJ • 2013 • Issue 1

Gevisser Mark, and Edwin Cameron


Further reading
(eds.) Defiant Desire: Gay and Lesbian
Lives in South Africa. Johannesburg: For a look at various aspects of queer
culture before and after apartheid, see
Ravan Press, 1994.
the collection of essays edited by Mark
Hoad, Neville, Karen Martin and Gevisser and Edwin Cameron, Defiant
Graeme Reid (eds.) Sex and Politics Desire: Gay and Lesbian Lives in South
in South Africa. Cape Town: Double Africa.
Storey Books, 2005. For more information about the draft-
ing of the Final Constitution, including
National Coalition for Gay and Lesbian
the Equality Clause, see Lauren Segal and
Equality and Another v the Minister of Sharon Cort, One Law, One Nation: The
Justice and Others 1998 CCT 11/98. Making of the South African Constitution.
New York Trust Co. et. al. v Eisner 1921 Auckland Park: Jacana Media, 2012.
256 US 345. United States. Alternatively, visit South Africa History
S v H 1993 (2) SACR 545 (C). Online, http://www.sahistory.org.za/
constitution.
S v M 1990 (2) SACR 509 (E).
Human Rights Watch is a respected
Vriend v Alberta 1998 File No: 25285. international organisation that focuses
Supreme Court of Canada. on human rights research and advo-
cacy. In 2011 they published a report
that contains good definitions of a
range of terms related to sexual ori-
entation and gender identity. See
“We’ll Show You You’re a Woman:
Violence and Discrimination against
Black Lesbians and Transgender Men
in South Africa” (available from http://
w w w.hr w.org/repor t s/2011/12/05/
we-ll-show-you-you-re-woman).
Gender DynamiX is an organisation
that works with transgender people
across Africa. Visit http://www.gender-
dynamix.org.za/document-categories/
general-information/.
Class Action Litigation
An avenue to justice
DA N I EL L I N D E

“The law is a scarce resource in South have targeted both commercial profiteer-
Africa … justice is even harder to come ing and government maladministration.
by.” These are the words of Judge Edwin They illustrate the great potential of this
Cameron in the 2001 Supreme Court of form of litigation to provide redress to
Appeal (SCA) case of Permanent Secretary, a large number of people and, to lesser
Department of Welfare, Eastern Cape Pro­ extent, to create an incentive for compa-
vincial Government and Another v Ngxuza nies to make systemic changes.
and Others (2001) (“Ngxuza SCA”, para. 1).
Judge Cameron, then a judge on the SCA, Silicosis is an incurable and progressive
was emphasising the importance of class lung disease that people get by inhaling
action litigation as a means of protecting crystalline silica dust. Miners are particu-
and furthering the rights of the most mar- larly vulnerable to the disease because
of the nature of their work. It is associ-
ginalised in our society, who may other-
ated with tuberculosis, respiratory infec-
wise have no access to legal redress. tion, massive fibrosis, and lung cancer.
The class action standing provi- See Roberts, The Hidden Epidemic Among
sion of the Constitution has been rela- Former Miners, p. 11 and Callinicos, A
tively underused. But a lawsuit currently People’s History of South Africa Vol. One
underway against South Africa’s largest p. 77.
mining companies seeks to bring redress,
by means of the class action mechanism,
to thousands of miners infected with sil-
What is class action litigation?
icosis. The few class action cases to date Any claimant that litigates in a court of
law must have standing, or locus standi

Notable class action lawsuits in South Africa


The provision for class action lawsuits was successfully invoked in Beukes v Krugersdorp
Transitional Local Council and Another (1996), as well as Trustees for the Time Being of the
Children’s Resource Fund and Others v Pioneer Food and Others (2013) (“Pioneer Food”).
However, in Maluleke v MEC, Health and Welfare, Northern Province (1999) (“Maluleke”), the
Court held that class action standing was absent.
This article refers to two cases relating to Pioneer Food: the first (“Pioneer Food”) was
brought on behalf of a broad group while the second, Mukaddam and Others v Pioneer Food
(Pty) Ltd and Others (2013) (“Mukaddam”), was brought to certify a class of distributors.

37
38 PLJ • 2013 • Issue 1

in judicio, to do so. Before South Africa “opt-out” class actions, other members of
adopted its post-apartheid Constitution, that class are not joined themselves, but
the rules of standing were narrow and benefit from (and are bound by) the out-
restrictive: only those claimants who come of the litigation unless they choose
could show a sufficient, personal, and to opt out of it. This poses the danger that
direct interest in a case were allowed if members of a class fail to opt out, they
to litigate it (Hoexter, Administrative will be prevented from pursuing the claim
Law in South Africa, p. 435). This meant in their individual capacity in the future.
you could not generally bring a case Because of this risk, certain requirements
on behalf of someone else alleging that must be met before anyone may litigate
their rights had been infringed. South on behalf of a class.
African law only permitted third parties
to participate in existing proceedings if Opting out means that the members of
they received a formal joinder in terms a class must be informed of the pending
of the procedural rules of court (Ngxuza class action case and given the opportu-
SCA, para. 4). nity not to be part of it. This will ensure
that they are allowed to bring their own
All this was fundamentally changed
claims later. See Currie and De Waal, Bill
by the Final Constitution, adopted in of Rights Handbook, p. 88, and Ngxuza
1996. The provisions of section 38 — SCA, para 4.
and the purposive interpretation given Note that the recent Mukaddam case
to those provisions by our courts — recognized the existence of “opt-in”
demand a broad and generous approach class actions.
to standing.1 Integral to this broad
approach is section 38(c), which allows Where a prospective representative
“anyone acting as a member of, or in the brings litigation on behalf of a class who
interest of, a group or class of persons” to allege the infringement of a right not
approach a court to allege an infringe- contained in the Bill of Rights, they must
ment or threat to a right of that group first make a preliminary application to
or class contained in the Bill of Rights. have the class action certified, allowing
South Africa’s courts have also used sec- them to act on behalf of the class (Pio­
tion 38(c) to develop the common law, neer Food, para. 23).2 Then, in order for
allowing class actions to be brought even the certification application to succeed,
in cases where a right contained in the the court must be satisfied that:
Bill of Rights has not been infringed (Pio­
neer Food, para. 21). • the class is defined precisely enough;
In class action litigation, one or more • a common claim or issue has been
identified;
claimants litigate on behalf of all claim-
ants in a similar position to their own. In • there is evidence of the existence of a
valid cause of action;

1 See in particular Ferreira v Levin NO and


Others; Vryenhoek and Others v Powell NO 2 The Constitutional Court in Mukaddam left
and Others (1996), and Giant Concerts CC open the question whether certification
v Rinaldo Investments (Pty) Ltd and Others is required where a breach of a right con-
(2013). tained in the Bill of Rights is alleged.
Class Action Litigation 39

• the representative’s claim is typical of Secondly, by allowing for similar


the claims of the rest; facts to be dealt with in one case, class
• the representative will adequately pro- actions may reduce the number of cases
tect the interests of the class; and which South Africa’s already overbur-
• a class action is the most appropriate dened courts are required to hear (Hoex-
procedure in the circum­stances.3 ter, p. 449).4
It is not necessary, when defining the Thirdly, because the threat of a con-
class, to identify all of its members. solidated claim looms larger for poten-
Indeed, this will often be impossible; but tial targets of class action lawsuits, and
it is vital to identify the class with enough because class actions regularly arise from
certainty so that an individual member instances of systemic wrongdoing, it is
of the class can be identified according to a form of litigation that creates a strong
objective criteria. If this is not the case, it incentive for a degree of positive sys-
will be impossible to notify the members temic change.
of a class of the action, and such members This final point deserves careful qual-
will not be given the opportunity to opt ification. Although class action litigation
out (Pioneer Food, para 29). does a better job of remedying a wide-
spread problem than piecemeal, individ-
Why class action litigation? ualised litigation, it is often equally ill-
Why do individual litigants not simply suited to addressing the root causes of a
bring their own claims individually? widespread problem. It is generally aimed
There are at least three advantages to liti- at providing mere monetary compensa-
gating as a class. tion to the members of the group. There-
The first is that class actions provide fore, although class actions incentivise
legal redress to a large number of peo- change more than piecemeal litigation,
ple, many of whom would otherwise be they do not mandate the formulation of
without remedy. Therefore where peo- new policies, nor future compliance with
ple’s claims are too small to pursue indi- the law, in the sense that other forms of
vidually, or where individuals cannot litigation and coordinated social mobili-
afford to pursue their own claims, they sation might.
are nevertheless granted access to court The shortcomings of individual-
(Hoexter, Administrative Law, p. 449; Ngx­ ised claims were palpably illustrated by
uza SCA, para. 5–6). the case of Vumazonke v MEC for Social
Development, Eastern Cape (2004) (“Vuma­
zonke”). In this case, Judge Plasket heard
A person is without remedy if they cannot
claim compensation for a wrong they 102 matters in a single week in motion
have suffered, either because they can- court. Each application claimed essen-
not afford it or for some legal reason. tially the same relief against the MEC. The

4 Hoexter cites para. 2.3.1 of the South Afri-


3 See Ngxuza and Others v Secretary, Depart­ can Law Reform Commission draft Bill
ment of Welfare, Eastern Cape Provincial Gov­ in its 1998 report, The Recognition of Class
ernment and Another (2000), para. 16, and Actions and Public Interest Actions in South
Pioneer Food, para. 26. African Law.
40 PLJ • 2013 • Issue 1

judge noted that the recalcitrant Depart- The three applicants, assisted by the
ment of Social Development, subject to Legal Resources Centre, brought an appli-
thousands of court orders, was willing to cation on behalf of all those affected, in
“pay the costs of those applications rather terms of the class-action standing pro-
than remedy the problem of maladminis- vision of the Constitution. They asked
tration and inefficiency … which was the the Court for an order declaring that
root cause of the problem” (Vumazonke, the cancellation of their own grants and
para. 10). He observed that in the absence the grants of all those in a similar posi-
of class action litigation, the Court was tion to their own had been unlawful,
“forced to watch impotently while a dys- and requested an order reinstating those
functional and apparently unrepentant grants retrospectively.
administration continues to abuse its Judge Froneman, in the Grahams-
power at the expense of large numbers town High Court (HC), noted the diffi-
of poor people.” The real crisis, he found, culties that the affected class of people
was that the cases represented only “the experienced in accessing justice (“Ngx­
tip of the iceberg.” In other words, it was uza HC”, p. 609).5 Many lived in rural
a case crying out for class action. areas far from access to lawyers. And
when they did eventually reach lawyers,
Permanent Secretary v Ngxuza they would often be told that the legal
(2001) aid system was overburdened, or that no
In the Ngxuza SCA case, the Eastern financial assistance was available. Essen-
Cape provincial authorities unlawfully tially, many people in the applicants’
revoked the disability grants of almost position simply could not pursue their
100,000 grant recipients. The authori- own claims (Ngxuza HC, p. 621).
ties’ motive was not malicious — to Judge Froneman held that the class
the contrary, it was part of an attempt was clearly identified and specified
by the province to verify and update its because, although the applicants did not
pensioner records to purge fraudulent know exactly whose grants had been
records that cost millions every year. unlawfully suspended, the provincial
However, the authorities’ method was government did (Ngxuza HC, p. 623).
extreme and, by failing to distinguish He therefore ordered that the applicants
between the fraudulent and the truly were entitled to litigate as representatives
disabled, proved devastating to many of the class, defined as anyone whose
people in need (Ngxuza SCA, para. 7). grant had been cancelled between 1
It was also patently unlawful, as the March 1996 and 28 September 2000
entitled grantees were not given any (Ngxuza HC, p. 633).
notice or the opportunity of a consul- There were two further aspects to
tation before their grants were revoked. the order apart from certifying the
Their source of income and livelihood class action. Firstly, the judge ordered
was unilaterally severed, despite attempts
by the Human Rights Commission to
5 Ngxuza and Others v Secretary, Department of
persuade the provincial government to Welfare, Eastern Cape Provincial Government
implement fair procedures. and Another (2000).
Class Action Litigation 41

the provincial government to give the to volunteer information regarding the


applicants’ attorneys information about alleged conduct, and was granted corpo-
the members of the class from its own rate leniency. Tiger entered into a settle-
records. Secondly, he ordered the appli- ment agreement with the Commission
cants to publish and widely distribute a and paid an administrative penalty of
notice, in English, Afrikaans, Xhosa, and nearly R 99 million. The Competition
Sotho, containing information about the Tribunal adjudicated the complaints
class action (Ngxuza HC, p. 633–34). This against Pioneer and imposed a penalty
allowed people to opt out and not be of close to R 196 million.
bound by the litigation if they wished. So much for punishment; but what
The provincial government appealed about compensating ordinary consum-
to the SCA. Judge Cameron, upholding ers of bread, the price of which was arti-
the decision of the lower court, noted ficially and unlawfully increased?
that the case was “pattern made” (that is, The nine applicants represented a
ideally suited) for class proceedings (Ngx­ broad cross-section of society. Three
uza SCA, para. 11). This was because the were NGOs that worked with children,
class the applicants represented was of the poor, and the disadvantaged. The
the very poorest in our society, its mem- fourth was the Confederation of South
bers had the least chance of vindicat- African Trade Unions (COSATU). The
ing their rights through the courts, and remaining five were individual consum-
the action was made up of many small ers of bread.
individual claims scattered throughout The applicants sought to certify two
the Eastern Cape. The Court therefore separate consumer classes on whose
dismissed the provincial government’s behalf they could claim damages for the
appeal, and upheld the applicants’ increased price of bread, which resulted
authority to institute proceedings. from the bread companies’ unlawful col-
lusion. (As noted earlier, a separate appli-
Pioneer Food (2013) cation was brought for the certification
In the Pioneer Food case, the SCA con- of a class of distributors.)
sidered the certification of a class action The first class consisted of all persons
where the largest bread producers in the who purchased, for personal consump-
Western Cape — Pioneer Food (“Pio- tion, bread produced by any of the three
neer”), Tiger Brands (“Tiger”), and Pre- bread producers in the Western Cape
mier Foods (“Premier”) — had engaged during the period of collusion (“the
in conduct amounting to price fixing, Western Cape complaint”). The second
thereby contravening the Competition class consisted of all such persons in
Act (1998).6 Following an investigation Gauteng, Free State, North West, or Mpu-
by the Competition Commission (“the malanga (“the national complaint”) (Pio­
Commission”), Premier came forward neer Food, para. 12).
On appeal, the SCA noted that class
actions are “a particularly appropriate
6 Trustees for the Time Being of the Children’s
Resource Fund and Others v Pioneer Food and way in which to vindicate some types
Others 2013 (2) SA 213 (SCA). of constitutional rights, but they are
42 PLJ • 2013 • Issue 1

equally useful in the context of mass


A delictual claim is a claim for compen-
personal injury cases or consumer liti-
sation by person A for harm inflicted by
gation” (Pioneer Food, para. 21). In deter-
person B in breach of a legal duty that
mining whether it was appropriate in the person B owes to person A.
circumstances to certify the class action, When a court remits a matter to
the Court noted (similarly to the SCA in another court, it orders that court (usu-
Ngxuza) that: ally a lower court) to reconsider the mer-
its of a matter, often in light of the guid-
• the group upon whose behalf the ance provided by the higher court.
appellants sought to bring the claims
was large and generally poor;
The application for certification is
• the claims themselves were not large
still pending before the Western Cape
enough to warrant being pursued
High Court, but at this stage that appli-
individually; and
cation appears likely to succeed.7
• in all likelihood, if the claims were
In a separate matter, the Constitu-
not capable of being pursued by way
tional Court held that the representatives
of class action, they would not be
of a class of bread distributors — alleg-
capable of being pursued at all (Pio­
edly harmed as a result of the same col-
neer Food, para. 19, 65–68).
lusive conduct in Pioneer Food — should
In respect of the Western Cape com- also file further affidavits in the High
plaint, the Court held that insufficient Court to comply with the Pioneer Food
evidence of a valid claim had been certification requirements. Justice Jafta
adduced, and the class was defined too held that the very same requirements for
broadly, but that it would be inequitable certification exist where the members
and unjust to quash the applicants’ case. of a class are required to “opt in” rather
In addition to granting the members than “opt out” of it (Mukaddam).
of the potential class access to courts In the absence of private damages
as outlined above, this was important claims, what prevents profit-seeking
because it meant the class was capable of companies from weighing up the likely
definition; nor could it be said that the costs of administrative penalties with the
action — a delictual claim for damages significant financial benefits of price-fix-
caused by deliberate breach of the Com- ing, and then determining that collud-
petition Act — was without basis. But ing with competitors is the most profit-
insufficient evidence had been placed able approach? The ubiquity of collusive
before the Court for it to determine these practices suggests that this sort of callous
questions. arithmetic is commonplace. And so the
Judge Wallis, writing for a unanimous additional threat of private claims for
SCA, therefore sent the matter back to
the High Court so that the applicants
7 The Institute for Accountability in Southern
could file further affidavits in accord-
Africa argues that applicants have reformu-
ance with the requirements for certifica- lated their claims in compliance with the
tion set out in his judgment. SCA’s requirements to the extent that “Pio-
neer now pleads ‘no contest’ to the certifica-
tion” (“Casting bread upon the water”).
Class Action Litigation 43

damages — though in theory targeted at for the Elimination of Silicosis, p. 4). This
compensation rather than deterrence — is despite clear evidence that the dis-
will surely serve to change commercial ease can be prevented by introducing
behaviour for the common good. measures to reduce silica dust levels;
early diagnosis; educating miners about
Looking forward: the silicosis the risks; and providing proper treat-
class action ment. (See South African Department
Currently underway is perhaps the most of Labour, p. 49–50, and Richard Spoor,
significant, and — for mining bosses — “Founding affidavit”.)
most calamitous class action matter yet While it is difficult to anticipate at
in South Africa’s history. A class action is this stage whether it will be a case “pat-
sought to be certified on behalf of more tern made” for class action litigation, it
than 17,000 miners against 30 min- is clear what questions this will revolve
ing companies, including AngloGold around. Do the applicants represent the
Ashanti, Gold Fields, Harmony Gold poorest in our society? Do its members
Mining Company, and Anglo American have the least chance of vindicating their
South Africa. The applicants claim to rights through the courts in the absence
represent the class of miners that have of representative class action litigation?
contracted silicosis due to their employ- Is the class made up of many small indi-
ers’ negligent failure to prevent the vidual claims, scattered throughout the
spread of silicosis in their mines. country? On its face, the answer to many
The recent decision of the Consti- of these questions appears to be “yes”.
tutional Court in Mankayi v AngloGold Although the monetary amount of
Ashanti (2011) has opened the way for some claims may in fact be quite signif-
mining companies to attract significant icant, the poverty of the class, and the
liability for their negligence. Here the extent to which the formal procedures of
Constitutional Court decided that, in joinder may in this case be insurmount-
cases where mineworkers suffer occupa- able, mean that class action is the most,
tional injury or disease, such as silicosis, if not only, suitable means of pursuing
due to the fault of their employer, they an appropriate remedy for the miners
may claim compensation. The Court and their families. And if this is indeed
affirmed that section 35(1) of the Com- the case, and the mining companies’
pensation for Occupational Injuries negligence is found to have caused the
and Diseases Act (COIDA) of 1993 does miners’ illnesses, then a claim of mas-
not extinguish the common law rights sive proportions seems probable. So too,
of mineworkers to recover damages. one hopes, does the timely introduction
AngloGold Ashanti had argued that this of measures to prevent this patently pre-
section prevented such compensation ventable illness.
unless done through COIDA.
The South African Department of References
Labour estimates that as many as a quar- Beukes v Krugersdorp Transitional Local
ter of all miners in South Africa suf- Council and Another 1996 (3) SA 467
fer from silicosis (National Programme (W).
44 PLJ • 2013 • Issue 1

Callinicos, Luli. A People’s History of Permanent Secretary, Department of Wel­


South Africa, Vol. One: Gold and Work­ fare, Eastern Cape Provincial Govern­
ers 1886–1924. Johannesburg: Ravan ment and Another v Ngxuza and Others
Press, 1985. 2001 (4) SA 1184 (SCA).
Currie, Ian, and Johan De Waal. Bill of Roberts, Jaine. The Hidden Epidemic
Rights Handbook 5th ed. Cape Town: Among Former Miners: Silicosis, Tuber­
Juta & Co, 2008. culosis and the Occupational Diseases
Ferreira v Levin NO and Others; Vryenhoek in Mines and Works Act in the Eastern
and Others v Powell NO and Others Cape, South Africa. NP: Health Sys-
1995 ZACC 13; 1996 (1) SA 984 (CC); tems Trust, 2009.
1996 (1) BCLR 1 (6 December 1995). South African Department of Labour.
CCT 5/95. National Programme for the Elimina­
Giant Concerts CC v Rinaldo Investments tion of Silicosis. https://www.labour.
(Pty) Ltd and Others 2013 (3) BCLR gov.za/downloads/documents/
251 (CC). useful-documents/occupational-
Hoexter, Cora. Administrative Law in health-and-safety/Useful%20
South Africa. Cape Town: Juta & Co, Document%20-%20OHS%20-%20
2010. National%20Programme%20for%20
Institute for Accountability in South- the%20Elimination%20of%20Silico-
ern Africa. “Casting bread upon the sis.pdf. Web.
water — how to deter delinquent Spoor, Richard. “Founding affidavit”.
corporate conduct”. www.ifaisa.org/ http://goldminersilicosis.co.za/wp-
Casting_bread_upon_the_water. content/uploads/2013/01/Silicosis-
html. Web. Notice-of-Motion-and-Founding-
Maluleke v MEC, Health and Welfare, Affidavit-6.pdf. Web.
Northern Province 1999 (4) SA 367 (T). Trustees for the Time Being of the Chil­
Mankayi v AngloGold Ashanti 2011 (3) SA dren’s Resource Fund and Others v
327 (CC). Pioneer Food and Others 2013 (2) SA
Mukaddam and Others v Pioneer Food (Pty) 213 (SCA).
Ltd and Others 2013 ZACC 23. Vumazonke v MEC for Social Development,
Ngxuza and Others v Secretary, Depart­ Eastern Cape, and Three Similar Cases
ment of Welfare, Eastern Cape Provin­ 2005 (6) SA 229 (SE).
cial Government and Another 2000
(12) BCLR 1322 (E).
Amayeza eNziwe aFana
nawoMenzi wokuQala,
amaLungelo awoDwa abeNzi
mveliso ne-HIV eKenya
U-Ochieng and Others v iGqwetha
Jikelele (the Attorney General) (2012)
ZEN A N D E BO O I

[This is a Xhosa translation of an English article. The original appears afterwards.]


Ngo-2012, iNkundla ePhakamileyo Abaceli babanga ukuba umThetho
yaseKenya e-Nairobi (“iNkundla”) umisela umda ekukwazini kwabantu
yachophela umceli mngeni malunga ukufikelela kumachiza kunye namayeza
nomthetho ocetywayo wamalungelo afikelelekayo nayimfuneko, ingakumbi
omenzi wemveliso obungaba neziphumo loo mayeza enziwe afana nawomenzi
ezibi ekukwazini kwabantu ukufikelela wokuqala, ngaloo ndlela kugxojwa
kumayeza anokusindisa ubomi enziwa amalungelo asisiseko kubomi, isidima
afana nawomenzi wokuqala angabizi somntu kunye nawempilo akhuselwe
mali ininzi kodwa anyangayo. nguMgaqo-siseko waseKenya. Bafuna
Ityala eli libandakanya amacandelo umyalelo wenkundla obhengeza ukuba
athile omThetho oChasene nokuK- amalungelo achaphazelekayo aquka
hohlisa ka-2008 (“umThetho”). Ityala nelungelo lokufikelela kwiyeza elenziwe
elicela umngeni kumthetho laye lafakwa lafana nelomenzi walo wokuqala.
ngabaceli abathathu ii-antiretrovirals INkundla iphinde yeva kwakhona
(ARVs) ze-HIV/Aids. Ababini kubo bafu- kubameli be-NGO, i-Aids Law Project,
mana ii-ARVs ngenkqubo edityanelw- ethe yona ixhasa abaceli. Ityala eli laye
eyo eqhutywa yi-Doctors Without Bor- lakhatywa liGqwetha Jikelele laseKhenya
ders (i-Médecins Sans Frontières okanye kunye nayi-Arhente eChasene neN-
i-MSF) kunye norhulumente waseKenya, kohliso. EKenya, iGqwetha Jikelele
omnye ufumana ii-ARVs ngeprojekthi ngumcebisi ongundoqo karhulumente;
karhulumente. likwayintloko ye-Ofisi yomThetho
kaRhulumente yaseKenya.

45
46 PLJ • 2013 • Issue 1

INkundla kwafuneka ukuba icacise yafumanisa ukuba umThetho uyakuba


inkcazo yomThetho ye “nkohliso” neempembelelo ezimbi ekukwazini
ngokunxulumene neyeza. Amatshan- kwabantu ukufikelela kumayeza enziwe
tliziyo ezempilo abanga ukuba umThetho afana nabenzi bawo bokuqala anga-
ulichaze igama eli ngokubanzi kakhulu, bizi mali ininzi kodwa abe esebenza,
ngendlela enokutolikwa njengequka kuba zange yenze umahluko phakathi
amayeza enziwe afana namayeza enziwe kwamayeza enkohliso kunye namayeza
ngumenzi wokuqala. enziwe afana nawabenzi bawo bokuqala.
INkundla yaye yacelwa ukuba ithele- Ababini kubaceli, u-Patricia Asero
kise ilungelo leenkampani zamayeza Ochieng no-Joseph Munyi, bafumana
lokukhusela amalungelo azo akheth- amayeza abawasebenzisayo ngokwabo.
ekileyo emveliso zawo kwezo mveliso U-Joseph uphile ne-HIV iminyaka esi-
ziyinkohliso, kunye nelungelo labantu 8. Omnye umceli, u-Maurine Atieno,
abahluphekayo nabazizisulu ekubeni unonyana oneminyaka emi-5 owazalwa
bafikelele kumayeza ekulula ukufikelela ene-HIV. Nakuba naye osulelekile, ngun-
kuwo, asindisa nobomi. yana wakhe kuphela ofumana unyango
Kwisigwebo sayo, iNkundla yaye kwi-MSF/iprojekthi kaRhulumente.
yaqinisekisa umahluko obalulekileyo Njengo-Patricia no-Joseph, u-Maurine
phakathi kwamayeza “enziwe afana akaphangeli kwaye ngeke akwazi ukuz-
nalawo abenzi bokuqala” kunye nalawo ithengela amayeza ngokwakhe.
“enkohliso”. INkundla yacacisa imida Ababodwanga. Kumanani axeliweyo
ebalulekileyo kumalungelo akhetheki- kwisigwebo, baphakathi kwe-1.3 ukuya
leyo abenzi bemveliso, ixela ukuba ilun- kwi-1.6 lezigidi abantu abaphila ne-HIV
gelo labaceli kubo lihamba phambili eKenya. Kwelo nani, i-184,052
ukodlula umdla wezoqoqosho wabanini ngabantwana. INkundla kwakhona ixele
malungelo awodwa emveliso. INkundla amanani abonisa ukuba malunga nesi-

Amayeza enziwe afana nawabenzi bawo okuqala ayasebenza kodwa kaninzi aziintlobo
ezingabizi mali ininzi lamayeza asele ekhona kwaye esetyenziswa, athengiswa phantsi
kwegama elahlukileyo. Amayeza enkohliso, kwelinye icala, ngamayeza enziwe ukuba afane
namachiza anamalungelo awodwa abenzi bawo, kusetyenziswa iipakethe, iimpawu kunye
nemathiriyeli yokuthengisa enxulunyaniswa namachiza okwenyani enziwe kuqala.
Owona mahluko ubaluleke kakhulu phakathi kweyeza lenkohliso kunye neyeza elenziwe
lafana nelomenzi walo wokuqala ulula kuba iyeza elenziwe lafana nelomenzi walo wokuqala
lona liyasebenza; amayeza enkohliso wona awasebenzi. Amayeza enkohliso anokungas-
ebenzi, okanye kwenzakalise ukusebenza kwawo, nokuba akukho nto ayenzayo. Amayeza
enkohliso anokubanga ukwenzakala okumandundu ebantwini abanomhlaza okanye i-HIV/
Aids kuba kubalulekile kubantu abanezi meko ukuba bathathe amayeza abo ngaphandle
kokuphazanyiswa.
Ngokuchaseneyo, amayeza enziwe afana nawomenzi wawo wokuqala enziwe ukuba
abe neziphumo ezifanayo nezamayeza anamalungelo awodwa omenzi wawo, kwaye ava-
vanywa aze agunyaziswe ziziphathamandla ezilawulayo. Nangona eneziphumo zokuse-
benza ezifanayo njengamachiza enziwe ngabenzi bawo bokuqala, amayeza enziwe afana
nawomenzi wawo wokuqala awabizi mali ininzi.
Amayeza eNziwe aFana nawoMenzi wokuQala, amaLungelo awoDwa abeNzi mveliso ne-HIV eKenya 47

qingatha seenkedama eziyi-2.4 sezigidi iindleko zonyango ziyakunyuka, ngoko


zelizwe zilahlekelwe ngabazali bazo ke abo bosulelwe yi-HIV bazakunyan-
ngenxa ye-HIV/Aids. Uninzi lwabantu zeleka ukuba basebenzise iibhrendi
abaphila ne-HIV luvela kwiindawo ezih- ezinamalungelo awodwa ezibiza imali
luphekayo nezingakhathalelwanga zol- eninzi.
untu. (Ochieng, umhlathi wama-44 Nangona abaceli babengakuchasanga
ukuya kuma50.) ukukhuselwa kwamalungelo awodwa
Akukho mntu uziphikayo izi­phumo abenzi bemveliso, basathi abantu abap-
ezibi zokuzinganiki unyango izigulane hila ne-HIV/Aids baludidi olukhetheki-
ze-HIV, okanye ukuba zinokufumana leyo kwaye umthetho mawungachasi
usulelo olungenelelayo ukuba ngaba izibophelelo zikarhulumente ngokub-
luphazanyisiwe unyango lwazo. I-Aids hekisele kubo. Ukusebenzisa kunye
Law Project yaye yavuma eNkundleni nokunyanzela umThetho ngale ndlela
ukuba unyango lwe-anti-retroviral kunokugxobha amalungelo angun-
lunxulunyaniswa nama-90% okwehla doqo njengoko eqondwa ngumthetho
ekuswelekeni okubangwa yi-Aids, ukuba wamazwe ngamazwe kunye noMgaqo-
nje la machiza asathathwa rhoqo njen- siseko waseKenya ngokumisela umda
goko kumiselwe. Abaceli babange ukuba kufikelelo lwabo kumachiza enza ukuba
ukubekwa kwamacandelo athile oku- loo malungelo asebenze.
didayo kuyakukhokelela kwiimeko ezo Kulo mxholo iNkundla ichaze ngoku-
abantu baye banyanzelwa ukuba balin- cacileyo ukuba:
dele amayeza ngenxa yeziphathaman-
“U kuba ngaba amanyathelo anjalo
dla zisazama ukumisela ukuba ingaba [omthetho] anokuba neempembelelo zoku-
amachiza asaphandwayo asemtheth- misela umda kufikelelo, elo nyathelo lo
weni na okanye awekho mthethweni. [mthetho] linjalo ke liyakusongela ngokwe-
Into eyayiyingxaki yaba kukuba siphumo salo ngqo ubomi kunye nempilo
umThetho ubeka abanini malungelo yabaceli kunye nabanye abosulelwe yi-HIV
awodwa abenzi bemveliso kwimeko ne-Aids, kwaye liyakugxobha amalun-
gelo abo phantsi kwalo Mgaqo-siseko”
ebenza bazuze ngokungamkelekanga.
(umhlathi wama-52).
Ukufumaneka kwamachiza enziwe
afana nawomenzi wawo okuqala kuya INkundla ke yaye yathathela ingqalelo
kumiselwa umda omkhulu kwaye intsingiselo kunye neempembelelo

Ilungelo lomenzi mveliso lilungelo elilodwa elinika umenzi walo ilungelo elikhethekileyo,
kwimeko yamayeza, phezu kweyeza okanye inkqubo yokwenza iyeza. Linika umenzi walo
ukuba axhamle yedwa ekwenziweni kunye nasekuthengisweni kwemveliso. Isiphumo
samalungelo omenzi kukuba kaninzi iinkampani ziye zibize imali ephezulu ngokugqithisi-
leyo ukuze zibuyise imali ekwenziwe ngayo utyalo-mali kwaye benze nenzuzo.
Ukubaluleka kwenkqubo yamalungelo abenzi ngeke iphikiswe: Inika isizathu okanye
umtsalane wokuba iinkampani zivelise okanye ziphuhlise ubuchwepheshe obutsha. Ngeke
kuphikwe kwakhona ukuba iinkampani ziyisebenzisa kakubi lenkqubo yelungelo lomenzi
kwaye ke oku kuye kukhokelele kwimeko leyo abantu abafuna kakhulu amayeza baye ban-
gakwazi ukuwafumana eyimfuneko enjalo.
48 PLJ • 2013 • Issue 1

zelungelo kwimpilo, ukuza kuthi ga ophule izibophelelo zakhe na. Inkundla


ngoku ekubeni oku kumisela iziboph- yagqiba kwelokuba,
elelo zikarhulumente ngokoMgaqo-
“ilungelo lobomi, isidima kunye nem-
siseko kunye nomthetho wamazwe pilo yabantu abafana nabaceli abosule-
ngamazwe, ingakumbi izibophelelo lwe yintsholongwane ye-HIV ngeke iban-
zaseKenya ngokweNgqungquthela yama- jwe sisiqendu esingacaciswanga kakuhle
Zwe ngamaZwe kumaLungelo oQoqo- kwimeko leyo abo bantu banoxanduva
sho, iNtlalo neNkcubeko. INkundla yag- lokunyanzelisa umthetho onokun-
qiba ekubeni umsebenzi karhulumente gawuqondi kakuhle umahluko phakathi
kweyeza elenziwe lafana nelomenzi
unamacala amabini. Okokuqala, unom-
wokuqala kunye nelo yeza lenkohliso”
sebenzi omhle wokuqinisekisa ukuba
(umhlathi wama-84).
abemi bawo banofikelelo kwiinkonzo
zokhathalelo lwempilo kunye namayeza Ukuba ngaba kufunyaniswa ukuba
kwaye, okwesibini, unomsebenzi ombi umba ongundoqo karhulumente kufu-
wokuba ungenzi nantoni ezakuchapha- neka ibe kokusemdleni wabantu abo-
zela ngayo nayiphi na indlela iinkonzo sulelwe yi-HIV/Aids, abo urhulumente
zokhathalelo lwempilo ezinjalo kunye “anoxanduva kubo lokuqinisekisa ukuba
namayeza ayimfuneko. bafikelela kukhathalelo lwempilo olu-
Njengoko iNkundla iye yaqhuba fanelekileyo kunye namayeza ayimfu-
yathi: neko” (umhlathi wama-84). Kumisela
ukuba urhulumente ngeke aphumelele
“Uninzi lwabo bosulelweyo yintsholong- kumsebenzi wakhe ukuba uquke “ama-
wane, njengabaceli, abaphangeli kwaye
gatya ambhaxa” ayekela “kubanini
ke ngoko abanayo imali yokuzifumanela
bamalungelo akhethekileyo emveliso
ngokwabo amayeza eebhrendi zee-anti-
retroviral abawadingayo ukuze bahlale kunye namagosa ezerhafu” ukuba bato-
besempilweni. Ke ngoko ke baxhomekeke like amagatya omThetho kwaye benze
kumayeza e-anti-retroviral enziwe afana izigqibo ngoko nangoko ezinokwenza
nawabenzi bawo bokuqala angabizi imali ukuba abantu bangakwazi ukufikelela
eninzi kwaye ekulula ukufikelela kuwo” kumayeza ayimfuneko ukuze baphile
(umhlathi wama-50).
(umhlathi wama-84).
Yiloo nto ke, nawuphi na umthetho Amatshantliziyo empilo ne-HIV/
onokwenza ukuba amachiza ayimfuneko Aids basincomile isigwebo ngokubeka
angabi nakufikeleleka ebantwini uya- amalungelo omgaqo-siseko abantu
kuthetha ukuba urhulumente wophula baseKenya ngaphezulu kwamalungelo
isibophelelo sakhe phantsi koMgaqo- eenkampani okwenza inzuzo kwintlekele
siseko, ngalo ndlela ke ugxobha amalun- yempilo eqhubayo. UMlawuli weSigqeba
gelo abantu. Kweli tyala, umbuzo yayin- we-UNAIDS, uMichel Sidibe, usincomile
gowokuba ingaba umThetho ngohlobo esi sigqibo, exela ukuba simisela indlela
olulo ngoku wenze ukuba urhulumente ebalulekileyo ekuqinisekiseni ukuba
lukhona ufikelelo kumachiza asindisa
ubomi kwihlabathi jikelele.
Uloyiso kweli tyala lulele kwisigqibo
senkundla sokunyanzelisa amalungelo
Amayeza eNziwe aFana nawoMenzi wokuQala, amaLungelo awoDwa abeNzi mveliso ne-HIV eKenya 49

abantu abahluphekayo nabangakhath- Iireferensi


alelwanga ngokubhekisele kumdla Ochieng and Others v the Attorney Gen­
wezoqoqosho wenkampani ezinkulu eral (2012). INombolo yama-409
zoxubo-mayeza. ka-2009. INkundla ePhakamileyo
yaseKenya e-Nairobi.
Ngolwazi oluthe vetshe malunga
namayeza enziwe afana nawabenzi
bawo okuqala, iimveliso ezinamalun-
gelo abenzi, umthetho wamazwe
ngamazwe wemveliso, ne-HIV/Aids,
jonga ku “Lungisani imiThetho ukuze
niSindise uBomi beThu” (imagazini ye-
Equal Treatment, Uhlelo lwama-41 —
Novemba 2011). Ungadawunloda oku
kwiwebhusayithi ye-TAC ku-www.tac.
org.za/community/node/3216 nges-
iNgesi, IsiXhosa, IsiZulu, nesiTsonga. Olu
hlelo kunye namanye amahlelo e-Equal
Treatment anokudawunlodwa ku: www.
tac.org.za/community/equaltreatment
Generics, Patents, and HIV in
Kenya
Ochieng and Others v the Attorney
General (2012)
ZEN A N D E BO O I

In 2012, the High Court of Kenya at Nai- who argued in support of the petitioners.
robi heard a challenge to a proposed pat- The suit was opposed by Kenya’s Attor-
ent law that would have had serious con- ney General and the Anti-Counterfeit
sequences for people’s ability to access Agency. In Kenya, the Attorney General
cheap but effective, life-saving generic is the government’s main legal adviser;
medicines. he is also the head of the Kenyan State
The case concerned certain sections Law Office.
of the Anti-Counterfeit Act of 2008 (“the The Court had to pronounce on
Act”). The case challenging the legisla- the Act’s definition of “counterfeiting”
tion was brought by three petitioners in relation to medicine. Health activ-
who take antiretrovirals (ARVs) for HIV/ ists argued that the Act defined the
Aids. Two of them accessed ARVs through term much too broadly, in a way that
a joint programme run by Doctors With- could be interpreted to include generic
out Borders (Médecins Sans Frontières or medications.
MSF) and the Kenyan government; the The Court was asked to balance the
other received ARVs through a govern- right of medicine companies to protect
ment project. their intellectual property from counter-
The petitioners argued that the Act feiters, and the right of poor and vulner-
limited people’s access to affordable, able people to have access to affordable,
essential drugs and medicines, particu- life-saving medication.
larly generics, thereby violating the fun- In its judgment, the Court confirmed
damental rights to life, human dignity, the crucial distinction between “generic”
and health protected in Kenya’s Consti- and “counterfeit” medicines. The Court
tution. They sought an order declaring confirmed important limits to intel-
that the affected rights included the lectual property rights, stating that the
right to access generic medication. petitioners’ right to life must take prec-
The Court also heard from represent- edence over the economic interests of
atives of an NGO, the Aids Law Project, patent holders. The Court found that the

50
Generics, Patents, and HIV in Kenya 51

Act would have serious consequences for would not be able to afford the medica-
people’s ability to access cheap but effec- tion on her own.
tive generic medicines, because it did not They are not alone. In numbers cited
distinguish between counterfeit medicine in the judgment, between 1.3 to 1.6 mil-
and generics. lion people in Kenya live with HIV. Of
that number, 184,052 are children. The
Generic medicines are effective but often Court also cited figures that showed
much cheaper versions of established about half of the country’s 2.4 million
medications, which are marketed under orphans lost their parents due to HIV/
a different name. Counterfeit medicines, Aids. Many of the people living with HIV
on the other hand, are substances that
are from poor and marginalised parts of
are made to resemble patented drugs,
using packaging, trademarks, and mar-
the community (Ochieng, para. 44–50).
keting material associated with the origi- No one disputed the negative effects
nal drugs. of denying HIV patients medical treat-
The most important difference ment, or that patients could get serious
between counterfeit medicine and opportunistic infections if their treat-
generics is simply that generic medicines
ment was interrupted. The Aids Law
are designed to work; counterfeit medi-
cines are not. Counterfeit medicines Project submitted to the Court that anti-
may be ineffective or actively harmful, retroviral therapy is associated with a
even if they do nothing. Counterfeit 90% reduction in deaths caused by Aids,
medicines can cause serious harm to so long as these drugs are taken regularly
people with cancer or HIV/Aids because
as prescribed. The petitioners argued
it is important for people with these con-
ditions to take their medication without
that the confusing wording of some sec-
interruptions. tions would lead to situations where peo-
By contrast, generic medicines are ple were forced to wait for medication
designed to have the same effect as the while the authorities tried to determine
patented medicine, and are tested and whether the drugs under investigation
authorised by regulatory authorities.
were legal or i­ llegal.
Even though they have the same effect
as the patented drugs, generics are What was most problematic was
much cheaper. that the Act put the patent owners at an
unacceptable advantage. The availabil-
ity of generic drugs would be severely
Two of the petitioners, Patricia Asero
restricted and the cost of treatment
Ochieng and Joseph Munyi, receive
would increase, so those infected with
medicine they use themselves. Joseph
HIV would be forced to use the more
has been living with HIV for 8 years.
expensive patented brands.
Another petitioner, Maurine Atieno, has
Although the petitioners were not
a 5-year-old son who was born with HIV.
opposed to the protection of intellectual
Although she is also infected, only her
property rights, they argued that people
son receives treatment from the MSF/
living with HIV/Aids were a special class
Government project. Like Patricia and
and legislation should not contradict the
Joseph, Maurine is unemployed and
state’s obligations towards them. Apply-
ing and enforcing the Act in this way
52 PLJ • 2013 • Issue 1

would violate their fundamental rights medicines and, secondly, it has a negative
as recognised in international law and duty not to do anything that would in
Kenya’s Constitution by limiting their any way affect the access to such health
access to the drugs that give effect to care services and essential medicines.
those rights. As the Court further pointed out:
In this context the Court clearly “Many of those who are infected with the
stated that: virus are, like the petitioners, unemployed
“If such [legislative] measure would have and therefore financially incapable of pro-
the effect of limiting access, then such [leg- curing for themselves the anti-retroviral
islative] measure would ipso facto threaten branded medication that they need to
the lives and health of the petitioners and remain healthy. They are therefore depend-
others infected with HIV and Aids, and ent on generic anti-retroviral medication
would be in violation of their rights under which is much cheaper and therefore more
the Constitution” (para. 52). accessible to them” (para. 50).

The Court then considered the meaning Thus, any legislation that would cause
and implication of the right to health, in essential drugs to become unaffordable
so far as this determined the state’s obli- to citizens would mean the state was in
gations in terms of the Constitution and breach of its obligation under the Consti-
international law, particularly Kenya’s tution, thereby violating citizens’ rights.
obligations in terms of the International For this case, the question was whether
Covenant on Economic, Social and Cul- the Act in its present form rendered the
tural Rights. The Court concluded that state in breach of its obligations. The
the state’s duty was two-fold. Firstly, it Court concluded that:
has a positive duty to ensure its citizens “the right to life, dignity and health of peo-
have access to health care services and ple like the petitioners who are infected
with the HIV virus cannot be secured by
a vague proviso in a situation where those
A patent is an intellectual property right
charged with the responsibility of enforce-
that gives its holder the exclusive right,
ment of the law may not have a clear under-
in the case of medicines, over the medi-
cine or the process to produce a medi- standing of the difference between generic
cine. It gives the holder a monopoly and counterfeit medicine” (para. 84).
over the manufacture or sale of a prod- It found that the state’s primary concern
uct. The effect of patents is that com-
should be the interests of the people who
panies often charge exorbitant prices to
make back the money invested and to are infected with HIV/Aids, to whom the
generate profit. state “owes the duty to ensure access to
The importance of the patent system appropriate health care and essential
cannot be disputed: it gives companies medicines” (para. 84). It determined
a reason or incentive to innovate and that the state would fail in its duty if it
develop new technologies. It also can-
included “ambiguous provisions” that
not be denied that companies abuse
this patent system and that this results left it up to “intellectual property hold-
in situations where the people who ers and customs officials” to interpret
need it most cannot afford essential the Act’s provisions and make on-the-
medication. spot decisions that could deny people
Generics, Patents, and HIV in Kenya 53

access to medicines essential for their


Further reading
survival (para. 84).
Health and HIV/Aids activists have For more information about generic
medicines, patents, international prop-
praised the judgment for placing the
erty law, and HIV/Aids, see “Fix the Laws
constitutional rights of Kenyan citizens — Save Our Lives” (Equal Treatment mag-
above companies’ right to profit from azine, Issue 41 — November 2011). You
an ongoing health crisis. The Execu- can download this from TAC’s website at
tive Director of UNAIDS, Michel Sidibe, www.tac.org.za/community/node/3216
in English, IsiXhosa, IsiZulu, and Tsonga.
applauded the decision, stating that it
This and other issues of Equal Treatment
sets an important precedent for ensuring can also be downloaded at: www.tac.
access to life-saving drugs worldwide. org.za/community/equaltreatment.
The victory in this case lies in the
Court’s decision to reinforce the rights
of poor and marginalised people against
References
the economic interests of large pharma-
Ochieng and Others v the Attorney General
ceutical companies.
2012, 409 of 2009. High Court of
Kenya, Nairobi.
Ndifuna Ukwazi pursues social justice issues
through its Fellowship Programme (which is
aimed at developing young leaders), through the
Mymoena Achmat and Thelma Lewis Activist
Library, by providing legal and research support
for its partner organisations, and by hosting
public talks, seminars, and lectures.
IN THIS ISSUE
• Foreword by Zak Yacoob
• Introduction by Zackie Achmat
• Transforming the Judiciary: Who should judges be?
• Free Speech and Communism in Colonial South Africa: Rex v Roux and
Ngedlane (1936)
• Train Apartheid in Cape Town: Rex v Abdurahman (1950)
• BJ Vorster’s War against White Students: NUSAS and the Riotous Assemblies
Act
• History of South African Law: Development from 1652 to the present
(excluding customary law)
• A Permanent Space for Justice: Rikhotso v East Rand Administrator Board
(1983)
• Decriminalising Sodomy: NCGLE v Minister of Justice (1998)
• Class Action Litigation: An avenue to justice
• Amayeza eNziwe aFana nawoMenzi wokuQala, amaLungelo awoDwa abeNzi
mveliso ne-HIV eKenya: U-Ochieng and Others v iGqwetha Jikelele (the Attorney
General) (2012)
• Generics, Patents, and HIV in Kenya: Ochieng and Others v the Attorney
General (2012)