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Apr
28
2022

Key rulings have major implications for lawyers

By Carmel Rickard

Two recent decisions from the courts in Zambia have serious implications for lawyers. In one, the appeal court rescued legal practitioners from a decision of the high court that found lawyers in private practice weren’t allowed to accept full-time employment. In the other, the appeal court had strong words for lawyers representing clients on trial for criminal offences: they should be sure that fee arrangements were recorded in writing and that there was genuine negotiation between the two sides over what would be charged.

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It was a case with serious implications for lawyers in private practice, after the high court unexpectedly found that legal practitioners weren’t allowed to accept full-time employment with a non-legal entity.

Apr
28
2022

Judge orders at least two years of state-funded therapy for 10-year-old raped by her uncle

By Carmel Rickard

A South African judge has ordered that a child, raped by a close family member, must be provided with state-funded counselling for at least two years to help her recover from the trauma of the sexual attacks. Further sessions may be added at the end of the two years, depending on whether the child needs more help at that stage. Despite an epidemic of child and adult rape in South Africa, such an order, made in this case as part of judgment on sentence, is extremely rare.  

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The rape of children is an enormous problem in a number of African countries, with South Africa being one of the hot spots. But this week, a court in SA’s Eastern Cape province delivered a decision in such a case that stands out for several reasons.

Apr
28
2022

International Child Abduction

By Fasken

Facts of the matter

E was born on 25 August 2014. On 5 October 2018, in contravention of two orders by the courts of Luxembourg, the mother abducted E from Luxembourg, which was her habitual residence, and settled in South Africa.[1]

Apr
21
2022

One case, two high court judgments: Namibian supreme court concern about ‘grave irregularity’

By Carmel Rickard

The supreme court in Namibia was busy preparing a written judgment in a rape case appeal when it discovered something was very wrong. Unknown to it at the time the case was argued, there had actually been two high court decisions on the same matter. The first of the two had refused leave to appeal as part of an unsuccessful application for condonation of late filing, with the court holding there were no prospects of success on appeal. Three months later, the same applicant had brought another application, for appeal.

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There’s a double whammy involved in this story. First, Namibia’s supreme court found serious irregularities by the high court and lawyers involved in a well-publicised rape case. Second, Namibia’s ruling Swapo party has appointed the man at the centre of the legal dispute, Vincent Likoro, a former advisor to the minister of land and resettlement, as a member of the party’s high-level think tank – even though he has been convicted of rape and sentenced to 10 years in jail.

Apr
21
2022

African Commission finds judicial dismissal by Eswatini violated African Charter on Human and Peoples' Rights

By Carmel Rickard

Since 2011, Thomas Masuku has been in a kind of judicial limbo following a decision by the authorities in Eswatini to remove him from office as a judge. He was, however, welcomed with open arms in Namibia, where he serves on the high court bench. Now, in an extraordinary development, the African Commission on Human and Peoples’ Rights has found that his removal from office by Eswatini violated key articles of the African Charter.

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Any reader of the decision by the African Commission on Human and Peoples’ Rights on the complaint by jurist Thomas Masuku is taken back in time to the era when controversial, disgraced judge, Michael Ramodibedi, was Chief Justice in Eswatini.

Apr
08
2022

Reproductive rights win in Botswana after woman’s nightmare hysterectomy experience at hands of state healthcare providers

By Carmel Rickard

Women’s reproductive rights include more than access to safe, affordable abortion and contraceptives. These rights are also about proper state care for any associated surgical procedure, for example, along with state obligations not to deny access to services that only women require, and to ensure the good quality of such services. The high court in Gaborone, Botswana, has just delivered an important decision related to this question, holding the state accountable for the shoddy treatment of a women who underwent a hysterectomy.

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The woman in this case, GMJ, needed a hysterectomy and it was to be carried out in Serowe, at the Sekgoma Memorial Hospital. At the time, she was not yet 50, married and a senior secondary school teacher.

Apr
08
2022

Judgment highlights ambiguity of abortion provision in Kenya’s constitution

By Carmel Rickard

In a judgment already welcomed by many, but likely to prove hugely controversial, the high court in Kenya has decided a constitutional petition centred on the question of whether – and under what circumstances – abortion is lawful in that country. The case involved a teenage girl who presented herself to a health centre because she was experiencing pregnancy ‘complications’. Diagnosing a partial abortion, the clinical officer completed the abortion, but both the patient and the clinic officer were subsequently arrested and charged.

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The first thing that strikes anyone reading this judgment is what happened to the two people in whose name the application was brought.

Mar
31
2022

Concerns over climate change stalemate court decision on UK financial support to Mozambique

By Carmel Rickard

A major decision by a senior UK court has split down the middle on whether that country should be financially backing a massive liquefied natural gas discovery in Mozambique. The case revolved around environmental questions and the climate change undertakings reached in terms of the 2015 Paris agreement. The Mozambique gas field is exceptionally rich and has the potential to catapult that country onto the list of the top five global suppliers of a growing international demand.

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The plan that has been approved is for the UK government to invest more than $1billion in the massive offshore gas project scheduled for Mozambique’s Rovuma Basin. It is said that this is one of the largest single financing packages ever offered by the UK government to a foreign fossil fuel project.

Mar
31
2022

Dispute over Facebook post brings major free speech decision by Eswatini high court

By Carmel Rickard

The case of an airline accountant who posted a comment on his Facebook page that his employers have interpreted as being critical of the Eswatini government and the system of governance it operates has given the high court the opening to make an unusually strong defence of free expression. In his FB post, made at the time criticism over the government purchase of a number of luxury vehicles was making headlines, the accountant, Godfrey Exalto, included the word, ‘dictatorship’.

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Eswatini is not usually associated with strong support for freedom of expression. Yet here is the high court doing exactly that, and coming to the conclusion that remarks by an employee of the Royal Eswatini National Airways (Renac,) to the effect that the country’s government was a ‘dictatorship’, amounted to a constitutionally protected, legitimate opinion under the constitution and international law.

Mar
24
2022

Problems over legal standing to claim N$4billion plus world-famed game reserve for Namibian ethnic group

By Carmel Rickard

Legal efforts by several members of a Namibian ethnic group to prepare for litigation contesting ownership rights to one of the world’s best known game reserves, the Etosha National Park, have met with mixed results at the country’s supreme court. Eight members of the Hai||om said that the park was originally the group’s ancestral land but that the Hai||om had been dispossessed before Namibian independence. The post-independence Windhoek government had further neglected the needs of the Hai||om and had not acted to correct historic wrongs.

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A new supreme court decision, delivered just in time for Namibia’s March 21 Independence Day, deals with preliminary problems in a major land claim that, if successful, would impact on the entire country. The problems, related to legal standing, were identified by eight members of the Hai||om tribal group who want to litigate an extraordinarily wide-ranging list of claims.  

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