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Feb
17
2022

Wildlife vs cattle: unauthorised newcomers cause tensions in Namibian conservation areas

By Carmel Rickard

Land is a major source of tension and dissatisfaction in Namibia and the courts are increasingly asked to step in when communities feel they are being ‘invaded’ by outsiders whose livestock put unbearable pressure on already scarce grazing resources. The latest such case involves a community trying to reinvent itself as a base for wildlife tourism: members of this community asked the court to order the removal of a number of families, with their livestock.

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Community conflict over land and the best way to use it is still a major feature of Namibian litigation more than 30 years after independence.

The problem can be clearly seen in new decision by high court judge Shafimana Ueitele. This case is just one in a series that he and his colleagues have been asked to settle related to land use, particularly in the northern parts of the country.

Feb
04
2022

Registration of a child’s birth: Unmarried fathers no longer treated differently from married fathers

By Fasken

On 22 September 2021, the Constitutional Court handed down a judgment in the case of Centre for Child Law v Director General: Department of Home Affairs and Others [2021] ZACC 31; the judgment found section 10 of the Births and Deaths Registration Act 51 of 1992 (the "Act"), to be invalid in its entirety, and consequently severed it from the Act, along with the wording in section 9(2) which subjected that provision to section 10. 

Section 10 of the Act provided for the notice of birth of a child born out of wedlock to be given under the surname of either the mother or the person acknowledging himself as the father.  The following scenarios emanated from section 10:

Feb
04
2022

Wiser to restrain ongoing activity than risk irreparable damage to the environment – Zambian judge

By Carmel Rickard

Two Tanzanian-owned entities operating on the edge of a significant national park in Zambia, have been ordered to stop cutting down trees, clearing vegetation or putting up constructions at least until the dispute between them and the trust running the reserve is resolved. The judge hearing the application for an interim order against the two entities said that the status quo ‘should not be maintained. It would be wiser to restrain ongoing activity rather than risk irreparable damage to the environment.’

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In what could prove the preliminary to a crucial conservation-related battle, perhaps even one of the most important environmental law disputes of the year for Zambia, the high court in Lusaka has ordered two Tanzanian-owned ventures on the edge of a national park, to stop cutting down trees, clearing vegetation or putting up any further constructions.

Feb
03
2022

Training Tanzania’s judiciary on gender issues - the struggle, and the partial success

By Carmel Rickard

Training of judges and magistrates is an accepted tool to deal with built-in opinions and prejudices. In the same way, training can also be crucial in highlighting inaccurate preconceptions about gender issues. In her chapter forming part of the new work, Gender, Judging and the Courts in Africa, Juliana Masabo (a Tanzanian high court judge and former academic) takes readers through the difficulties in ensuring training for judges, magistrates and others who play a role in the court processes of Tanzania.

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Jan
28
2022

Controversial South African advocate barred by Lesotho CJ from prosecuting treason, murder case

By Carmel Rickard

Controversial advocate, Shaun Abrahams, forced from his top prosecution job in South Africa, has been hauled over the coals by Lesotho’s Chief Justice Sakoane Sakoane for his behaviour in a bitterly contested trial, and has been barred from further participation in the matter. Since he was dropped as the national prosecuting boss in SA, Abrahams has also had a not very successful stint prosecuting in Botswana. He was brought in to help the prosecuting authorities in Lesotho with a series of high-profile, politically sensitive murder and treason cases.

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The case from which former top South Africa prosecutor, Shaun Abrahams, has now been barred involves Lesotho’s former army commander, Lieutenant General Kennedy Kamoli and five others, charged with treason, murder and assault.

Jan
27
2022

Dismissal of staffer who refused Covid-19 vaccine ruled ‘fair’

By Carmel Rickard

Is mandatory workplace vaccination constitutional? Is it even a fair workplace practice? These are questions being asked in many jurisdictions as employers try to ensure safe work environments. The issue is also beginning to filter into the court system, as those who do not want to be vaccinated challenge employers who have made vaccination mandatory.

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In this case, between dismissed employee Theresa Mulderij and the Goldrush Group for which she had previously worked, the question that had to be decided was whether the company’s dismissal decision was ‘substantively fair, based on incapacity’ since the employee had refused to be vaccinated.

Jan
20
2022

Gay 'spouses' case: Namibia's high court urges supreme court to change its mind

By Carmel Rickard

In a most unusual judgment, a full bench of Namibia’s high court has spelled out its strong disagreement with a decision made 21 years ago by that country’s highest court – and has urged the presently constituted Supreme Court to reconsider its views on the matter. The case, crucial for the country’s LGB community, and for human rights more broadly, concerned two same-sex couples (both couples involved one Namibian and one non-Namibian partner) ranged against the immigration authorities.

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If ever there was a judgment that teaches the necessity for a reader to go beyond the text of the order, this is it.

Jan
20
2022

The tale of an elephant in the room, by the supreme court of Seychelles

By Carmel Rickard

What does the tale of an on-again, off-again, children’s day-care centre in Seychelles have to say to readers from other legal jurisdictions? The case is apparently about how a court might approach what seems to be a valid lease that the government appears desperate to cancel. While that sounds unexceptional, here’s the catch: there are suggestions that the original deal to award the lease might have been finalised as a political favour and the government, caught out by the opposition, wanted to renege on the deal so as not to appear corrupt.

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Dec
09
2021

Legal first for Zimbabwe as court orders damages for workplace sexual harassment

By Carmel Rickard

A ground-breaking judgment from the high court in Zimbabwe has held that a woman, sexually harassed at work, is entitled to damages. It is understood to be the first time that such an order has been made in Zimbabwe. The decision comes after the woman experienced sexual harassment by her employer in 2002/3. According to evidence, her whole life changed as a result of the harassment: she lost her job, her marriage broke up and her personality has changed dramatically.

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Few women would have had the staying power of the plaintiff in this case, RM. She has been fighting for many years for redress over the sexual harassment to which she was subjected and, at least in the latest case, has been acting for herself, with no lawyer appearing for her.

Dec
08
2021

Ugandan court puts widow's rights ahead of cultural practices

By Carmel Rickard

In a judgment that strikes a blow for women’s equality in the face of strong cultural practices, the Ugandan high court has ordered that a widow may decide where her deceased husband may be buried. This despite the wishes of the man’s family, who wanted him laid in an ancestral burial ground and who wanted the woman to be barred from in any way ‘interfering’ with the burial. Before making its decision, the court asked for expert witnesses to provide evidence about the burial traditions of the Ndiga clan.

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At the centre of this court dispute is a family divided over where Christopher Kyobe, who died of Covid in Switzerland during October, should be buried.

His wife of 28 years – they married in Uganda in 1993 – brought his body back from Switzerland where they had lived, because she said he had told her that he wished to be buried at his matrimonial home in Mukono.

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