The Law Society of South Africa (LSSA) adds its voice to those calling on the South African Government to reconsider its withdrawal from the International Criminal Court (ICC). The LSSA is gravely disappointed at the unilateral decision by the Government to initiate South Africa’s withdrawal process from the Rome Statute of the International Criminal Court by executive act. ‘This raises serious concerns about our Government’s interpretation of its commitment to fighting impunity and providing accessible forums for victims of crimes against humanity and human rights abuses by those in power,’ say LSSA Co-Chairpersons Jan van Rensburg and Mvuzo Notyesi.

They add: ‘As we have said previously, we are currently in the fortunate position of having a strong and independent judiciary and other institutions supporting democracy. We can turn to these to challenge abuses of power by the State. However, this may not always be the case in future. Our Government appears hell-bent on closing and impeding access to regional, continental and international courts should a time come when South Africans can no longer rely on domestic remedies.’

The LSSA aligns itself with the statement by the International Bar Association that, ‘South Africa was one of the leading African countries in establishing the permanent Court with a mandate to address atrocity crimes, yet it may be one of the earliest to walk away. If this decision holds, it would be an extraordinary and detrimental development for both international justice and for South Africa.’

Considering the preamble to our own Implementation of the Rome Statute of the International Criminal Court Act, 2002 –

‘MINDFUL that:
• throughout the history of human-kind. millions of children, women and men have suffered as a result of atrocities which constitute the crimes of genocide, crimes against humanity, war crimes and the crime of aggression in terms of international law:
• the Republic of South Africa. with its own history of atrocities, has, since 1991, become an integral and accepted member of the community of nations;

the Republic of South Africa is committed to –
• bringing persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court, or in the event of the national prosecuting authority of the Republic declining or being unable to do so, in line with the principle of complementarity, as contemplated in the Statute, in the International Criminal Court.’

We ask what has changed in our commitment to the fight against impunity?

Mr Van Rensburg and Mr Notyesi point out that the withdrawal from the ICC follows our Government’s agreement to changes brought about in 2014 to the SADC Protocol. As it now stands, the SADC Protocol deprives citizens in the SADC region – including South Africans – of the right to refer a dispute between citizens and their government to the SADC Tribunal if they fail to find relief in their own courts. Only states can refer disputes to the SADC Tribunal. ‘The LSSA is challenging this in the Gauteng High Court,’ say Mr Van Rensburg and Mr Notyesi.

The LSSA also adds that the African Court on Human and Peoples’ Rights (AfCHPR) has the potential to enforce human rights through proper judicial processes and has relative independence from political leaders. However, although South Africa ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights on 3 July 2002, it has yet to submit a declaration accepting the competence of the AfCHPR to receive cases under Article 5(3) of the protocol. At least two cases from South Africa have been brought before the AfCHPR, but the court had to dismiss these cases due to lack of jurisdiction in the absence of the declaration by our Government, as the AfCHPR may not receive any petition under Article 5(3) involving a state party which has not made such a declaration.

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI AND JAN VAN RENSBURG
by the Law Society of South Africa Communication Department Tel: (012) 366 8800
Contact: Barbara Whittle, Communication Manager, barbara@LSSA.org.za 083 380 1307
Nomfundo Manyathi-Jele, Communications Officer, nomfundom@LSSA.org.za 072 402 6344.
 

The Law Society of South Africa (LSSA) adds it voice to the calls for an investigation into the fitness of the Board members of the SABC to hold office in the public interest. ‘We believe that the arrogant and irrational actions by the SABC Board in appointing Hlaudi Motsoeneng to another position within the SABC, disregard the remedial action recommended by the Public Protector. The findings by the Public Protector against Mr Motsoeneng remain binding until such time as they are challenged in and set aside by a court of law. This has not been done yet and the SABC Board is breaching its fiduciary duties in addition to appearing to be contemptuous of the Rule of Law, as well as of the Constitutional Court judgment in the case of Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others,’ say LSSA Co-Chairpersons Jan van Rensburg and Mvuzo Notyesi.

The LSSA further notes, with serious concern, that Communications Minister Faith Muthambi has been silent and has taken a back seat throughout this controversy in the face of the contemptuous behaviour by the SABC Board. ‘We call on the Minister to show leadership and take the appropriate decisive action in accordance with her political responsibilities. We will further engage with both the Minister and with the relevant state functionaries on the matter. A credible public broadcaster is key to our constitutional democracy as is the underlying principle of transparency,’ say Mr Van Rensburg and Mr Notyesi.

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, JAN VAN RENSBURG AND MVUZO NOTYESI
Law Society of South Africa Communication Department Tel: (012) 366 8800
Barbara Whittle, Communication Manager, barbara@LSSA.org.za; 083 380 1307
Nomfundo Manyathi-Jele, Communications Officer; nomfundom@LSSA.org.za; 072 402 6344

Editor’s note:

The Law Society of South Africa brings together its six constituent members – the Cape Law Society, the KwaZulu-Natal Law Society, the Law Society of the Free State, the Law Society of the Northern Provinces, the Black Lawyers Association and the National Association of Democratic Lawyers – in representing South Africa’s 24 300 attorneys and 5 000 candidate attorneys.

Disturbed by the ongoing protests at our educational institutions, the Council of the Law Society of South Africa (LSSA) – at its meeting on 29 September 2016 — resolved to offer mediation services by experienced attorney mediators to all the parties involved in the education dispute in an effort to resolve the current impasse. ‘We offer the skills and expertise of our attorney mediators on a pro bono basis in an effort to get representatives of universities, student formations and relevant government departments around the table in dialogue,’ say LSSA Co-Chairpersons Jan van Rensburg and Mvuzo Notyesi.

The LSSA Council expressed its serious distress at the violent and destructive nature of the student protests and stressed that it cannot condone violent behaviour and the destruction of property and infrastructure. The LSSA also emphasised that it does not support the stance of any specific party in this dispute. ‘We believe that the lack of communication between the parties, the positional stances adopted, the closure of some educational institutions and suspension of classes at others, jeopardises the current academic year for many, many students – including law students that may be preparing to join the profession next year – and the outcome will have a knock-on effect on the intake of students in 2017,’ say Mr Van Rensburg and Mr Notyesi.

They add: ‘We are at a tipping point for our educational institutions. We are confident that with constructive dialogue we can coax the parties back from an abyss that, once we are all cast into it, will have serious repercussions for the entire country and for the Rule of Law. We cannot afford to compromise our educational institutions to the point where they can no longer recover and we cannot afford to compromise the education and development of another generation of young adults,’ say Mr Van Rensburg and Mr Notyesi.

The LSSA has engaged with all the provincial law societies to set up panels of mediators to provide pro bono mediation services to the affected parties at tertiary institutions in their areas of jurisdiction, as was done by the Cape Law Society earlier this week.

► Parties in the education environment who may be seeking assistance through mediation, should e-mail the LSSA at LSSA@LSSA.org.za and they will be put in contact with mediators in their areas.

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, JAN VAN RENSBURG AND MVUSO NOTYESI
by the Law Society of South Africa Communication Department
Tel: (012) 366 8800 or Website: www.LSSA.org.za
Contact:  Barbara Whittle, Communication Manager, barbara@LSSA.org.za (012) 366 8800 or 083 380 1307 or Nomfundo Manyathi-Jele, Communications Officer, nomfundom@LSSA.org.za at (012) 366 8800 or 072 402 6344

Editor’s note:

The Law Society of South Africa brings together its six constituent members – the Cape Law Society, the KwaZulu-Natal Law Society, the Law Society of the Free State, the Law Society of the Northern Provinces, the Black Lawyers Association and the National Association of Democratic Lawyers – in representing South Africa’s 24 300 attorneys and 5 000 candidate attorneys.
 

PRESS STATEMENT

16 September 2016
For immediate release

Re the matter of
JOOST HEYSTEK VAN DER WESTHUIZEN V THE ATTORNEYS FIDELITY FUND BOARD OF CONTROL

1. The legal representatives of the Attorneys Fidelity Fund have studied the judgment handed down by the Honourable Mr Acting Justice Adams in the North Gauteng High Court on 14 September 2016, and have advised that there are sound grounds for an appeal.

2. The appeal is based on the meaning impliedly given by the Court to the term “particular matter or transaction” as referred to in section 47 (5) (a) of the Attorneys Act, 53 of 1979, which differs from the approach that has been adopted thus far and which was based on judgments in other matters dealt with by the Attorneys Fidelity Fund.

3. The Attorneys Fidelity Fund`s Board of Control appreciates the circumstances pertaining to Mr Joost van der Westhuizen, as well as the public sentiment in support of Mr Van der Westhuizen. However, the Attorneys Fidelity Fund`s Board of Control has a duty to ensure that the provisions of the Attorneys Act 53 of 1979 are applied consistently and without favour of any particular person.

4. Accordingly, our legal team has been instructed to prepare an application for leave to appeal the aforesaid judgment.

5. The filing of the notice of appeal will have the effect of suspending the aforesaid judgment.

Jerome Losper
Claims Executive
Attorneys Fidelity Fund
Tel: 021 424 5351
Website: www.fidfund.co.za