Editorial

I suppose it would be a cop out to not deal with freedom of expression. I must say though, I am growing pretty weary of ‘impending doom’ conversations and Zimbabwe comparisons I hear in the corridors of Kramer and the aisles of Pick ‘n Pay. Again. One thing that can definitely be said for South Africans is that we ’are a paranoid bunch. Anyone remember the popular ‘Zuma will amend the Constitution’ naysayers? Or how about the ‘the World Cup will never happen because we won’t build the stadiums on time’ Zillites? This is after already having lost South Africa’s most paranoid (this time, read racist) citizens in and around 1994.

I’m not suggesting that a vibrant civil society that questions and criticises the government isn’t a good thing. To be clear, it is people’s engagement in social issues has the most power to spark government attention and change policy. One need lLook no further than the impact of campaigners against AIDS denialism to confirm thatas much. The problem is however that we take the government on about the wrong – or perhaps only a portion of the right – things. The things that the media decides for us are most important – what could ungenerously be called ‘rich rights’.

Worrying about media freedom, although important, is a luxury that many in our country can still ill afford. Their primary concerns remains putting food on the table, securing a roof over their heads, finding a way to provide their children with a decent basic education and obtaining access to basic utilities and social services. A statement released by various NGO’s condemning the arrest of journalist Mzilikazi wa Afrika and the implementation of ‘draconian anti-media legislation’ also correctly acknowledges that:

The main media houses are overly concentrated in the hands of a few large corporations and consequently primarily represent the interests of a relatively small affluent portion of the population, thereby paying insufficient attention to the interests of poor and working class people.

The point here is not that we should not vigorously oppose any and every attempted violation of rights. It is rather that we should perhaps begin to question why it is that the media itself has, in part, created this whole fiasco. These rockstar rights are obviously very marketable. So was keeping tabs on Juju’s every bowel movement and eye-brow twitch - , until the monster that the media helped create grew too big and started referring to them as ‘bloody agents’ with ‘white tendencies’. It is easily forgotten, that newspapers, just like any other business, need to sell a product papers in order to make money. The abovementioned statement also concedes that ‘the quality of journalism in South Africa is often mediocre’. That is a very diplomatic way of putting it. In Tshabalala-Msimang and Another v Makhanya and Others the Sunday Times had published illegally obtained medical records about the then Health Minister. After ruling that the Sunday Times could not be censuured from further commenting or publishing any comments on the records, Jajbhay J chastised the Sunday Times for their unethical behaviour, and warned that ‘newspapers, no less than other players in our society must keep in mind the consequences of their activities.’ He continued to suggest that sometimes media restraint may be the most valuable contribution they can make:

Just because we possess rights, does not mean that we must exercise them to the hilt at every opportunity. Though we enjoy the freedom of expression, we would be ill advised to celebrate [it] by vilifying each other on the slightest pretext.

These are warnings the media would do well to take heed of in the current circumstances; the legitimacy of a vital democratic institution and the preservation of a well-informed and continuously active electorate may well be at stake.

My prediction is that the Protection of Information Bill will not be passed in its current format. It is in any event, in my opinion, unlikely to pass constitutional muster. It could turn out that some of the most worrying provisions in the proposed Bill are merely a consequence of a phenomenon not unknown to South African legislation: poor drafting. Either way we would do well as a society to realise not only the ways that our government fails us, but also the ways in which our media continue to fail us. That said, the Freedom of Information Bill is an unacceptable and unnecessary piece of legislation. The Promotion of Access to Information Act already fulfils the role of classifying various forms of information and would need only minor amendment in order to incorporate some of the other legitimate additions suggested in the Bill.

By Tim Fish Hodgson

Copyright, the Internet and Music: Trying to Delay the Inevitable

This article considers music, the Internet and copyright. More specifically: downloading music from the internet, without permission, for personal use. In this case personal use means listening and sharing the music, but not making any profit.

You know… that thing you do?

Industries are often against change and new technologies. In England in the early 19th century, the Luddites destroyed mechanized textile looms in protest of the new technology. The technology allowed for more growth, but inevitably the textile labourers would become redundant if they could not adapt to the new technology. Although there are short-term casualties, the economy is awarded with long term growth.

From the publication of sheet music to the invention of the gramophone to the first tapes and CDs, the copyright holders of the day fretted over these new technologies and warned of the music apocalypse. All of these innovations, in fact, had a positive effect, with music industry profits and the volume of music being listened to increasing steadily until around the year 2000.

In the 90s, three ideas fused to aid in decreasing record label profits: digitized music, methods of compressing music (culminating with the mp3 standard) and the Internet. Efficient digital compression technology meant that digital music could be transferred far more easily over the Internet. This trifecta has resulted in the most serious threat to the music industry thus far. The record industry has been slow to pick up on the benefits of the Internet, only beginning to sell digital music online in early 2000. Many people still do not buy music online, instead opting for free, quick and easy, illegal downloading.

The purpose of copyright is to incentivize the idea-holder to share her creation with society; in turn society will benefit from the idea. The idea is protected through relevant intellectual property laws which give the idea-holder a monopoly over that idea for a limited period of time. This allows her to recoup costs involved in producing the idea and to make a profit.

South African copyright law

The South African Copyright Act regulates copyright in South Africa. The Act holds distributors liable for infringement of copyright. The person who uploads copyrighted information to a server or another computer is liable. The fate of the downloader is less clear, however in most cases a downloader will also be an uploader because of the way that file sharing programs work. The internet service provider (ISP) and website owners who facilitate file sharing may also fall under the definition of distributer.

The Act imposes both civil and criminal sanctions depending on the level of copyright infringement. However, there is no South African case law that clarifies the position. It is therefore useful to consider the approach of foreign jurisdictions in order to evaluate the best approach to this problem in South Africa.

Summary of Foreign Approaches

North America represents two extremes. Canada has a progressive approach where downloading shared music is not illegal, but copying devices like blank CDs are taxed and the proceeds go to helping musicians and songwriters to recoup their losses caused by the illegal trade in music. However, uploading digital information is considered breach of copyright in certain circumstances. In the USA the act or facilitation of copying and downloading music of any sort is a breach of copyright and carries hefty fines and prison time.

In Sweden the infamous Pirate Bay case played out. The Pirate Bay is a website which connects users who want to exchange media. Most of its users choose to exchange copyrighted material. In 2008, the site administrators were indicted on criminal charges for facilitating other people’s breach of copyright law, and a consortium representing the recording industry filed simultaneous civil claims. The defendants argued that their site merely assists in connecting users, and it is the users who are solely responsible for deciding to transfer illegal content. The Court did not accept this argument, reasoning that because the defendants knew that some of the material being shared was copyrighted their ties to the perpetrators were sufficiently close to found liability. All four defendants were found guilty, and were fined $3.5m, sentenced to a year in prison and ordered to stop the website. The case will be heard on appeal later this year. The Pirate Bay’s ISP was then threatened with legal action, so the site moved to a different ISP.

French law permits specific copyright holders to collect IP addresses from illegal downloaders using peer-to-peer networks. The IP addresses are identified and warnings are issued to the users. If the warnings are not heeded, the ISP may suspend that user’s account for up to a year. The warning system ensures that copyright infringers are aware of their indiscretions. British law operates similarly: it provides that the IP addresses of persistent downloaders may be monitored, put on a list and prosecuted if they continue after three warnings.

Analysis

As is clear from the above discussion, there is no uniform approach to resolving online copyright infringement. The hardline approaches to copyright seem to dominate the media since the record companies are able to advertise and lobby for their position. These companies work diligently in their attempts to alter behaviour and ‘educate’ the public. This hardline approach has many disadvantages, starting with the near impossibility of comprehensive policing of online copyright infringement. It is also doubtful whether legislation attaching extreme penalties to such prevalent activities will garner sympathy and understanding.

Identification of habitual downloaders is tricky because it involves obtaining IP addresses of users from ISPs, which has implications for privacy rights and can be precarious. In the USA, the Recording Industry Association of America has taken legal action against defendants before attaining their identity, based on their IP address. This has lead to action being pursued against a 7 year old girl and a dead person. Furthermore, large-scale prosecution of downloaders has the potential to put a massive burden on the courts. Lawrence Lessig also points out the almost absurd danger of criminalizing a generation through far reaching copyright infringement laws.

Copyright infringement appears to be inevitable. The hardline approach has not been empirically successful in the USA. A progressive approach to copyright law, condoning or limiting the severity of penalties for infringement in certain situations, is a fair compromise. Enforcement mechanisms can be more relaxed than a court; this means that cases can be handled more quickly and efficiently. The use of warnings and minor penalties help to breed awareness in a less threatening manner. Combined with this more relaxed approach, informing and understanding—compared to criminal prosecution—can serve to cure the problem. No other industry vilifies its consumers to the degree that the music industry does.

A progressive approach is the best long-term solution. However, it may mean that music becomes harder to sell, forcing new business strategies to be developed in order to generate revenue. A sincere attempt at building customer loyalty is one of the best means to achieving sustainable income from music. Smaller businesses are more robust and find it easier to adapt to a new environment. This signifies trouble ahead for big record labels set in their ways.

Bands like Radiohead and Nine Inch Nails have made profits from putting their albums online for an optional donation. Other bands like the Arctic Monkeys and more recently Die Antwoord have used social media to promote themselves and achieve international success. This shows that, if you are astute enough and have a good enough product, a change in business model can still yield profits and increase recognition in an era where copyright does not enjoy the respect it once had.

The term disintermediation is used to describe a phenomenon where a middleman in a particular industry is no longer needed. Technological advances have allowed for recording costs to go down along with marketing and dissemination. Preserving old-school business models by pushing for stringent copyright laws and enforcement is a dangerous strategy to employ, especially since the relevance of big record labels is diminishing. As Brian Eno so eloquently puts it:

I think records were just a little bubble through time and those who made a living from them for a while were lucky. There is no reason why anyone should have made so much money from selling records...

… [The record age] was a bit like if you had a source of whale blubber in the 1840s and it could be used as fuel. Before gas came along, if you traded in whale blubber, you were the richest man on Earth. Then gas came along and you’d be stuck with your whale blubber. Sorry mate—history’s moving along. Recorded music equals whale blubber. Eventually, something else will replace it.

By Nicholas Pemberton

Cartels and Consumer (In)justice

The recent media frenzy surrounding the prevalence of cartel conduct suggests that the conspiracy stories are true for a change: profit-driven corporate fat cats do have secret meetings in five-star, smoke-filled rooms where they draft strategies on how best to suck consumers dry. The dismal truth is that Big Money still persuades Big Business more than any jawboning attempts focused on corporate social responsibility and triple bottom lines.

South African competition law prohibits all anti-competitive business practices, including cartel conduct. But what of the vexing question that looms like a large legal elephant in the (court) room: does the law on paper translate into something meaningful in practice? This article will question whether the Competition Act, as amended, serves as an effective deterrent and whether the move to criminalise cartel activity was a prudent one. Moreover, I shall examine the extent to which the regime is successful in appropriately compensating end consumers – the real victims of cartel activity.

Why do we care about the existence of cartels?

The economic costs and social harm caused by cartel activity are grave. Cartels and other anti-competitive business practices restrict or prevent competition in a market. Market competition is almost uniformly believed to be the catalyst for innovation, efficiency, productivity, lower prices and improved products and services. Barriers to competition encourage complacency, impede economic growth and inevitably cause consumers to pay more for less.

Cartel members collude to raise prices above the competitive level. Since they co-operate rather than compete, these market players are able to fix prices without risking their respective turnovers and market shares. The price-fixing activities of the bread cartel (which included Pioneer Foods, Foodcorp, Premier Foods and Tiger Brands) have had a severe social impact: the poorest South African families struggle to afford this staple food as a result of the escalating price - which failed to decrease even after the saga came to the fore.


Competition law as a deterrent

The Competition Act is enforced by the Competition Commission (the investigative and prosecutorial body) and the Competition Tribunal (the adjudicative body). The theory is that if they operate efficiently and competently they are likely to discourage cartel activity, increase the probability of cartel detection and enable successful actions against cartels. Our competition authorities are widely held to be amongst the best in the world.

Notwithstanding the admirable efforts of the competition authorities, the pervasiveness of cartel conduct suggests that the current regime is far from perfect. David Lewis, the former chairperson of the Competition Tribunal, has publicly lamented the striking breadth and depth of cartel activity. Over the last few years, the competition authorities have been stretched to capacity in an attempt to combat cartel conduct in the milling, milk, airline, motor vehicle, pharmaceutical, construction and telecommunications industries. Sadly, it seems that the illicit trail does not end there: other industries have been identified as requiring further scrutiny and investigation, such as the financial services sector.

Despite the fact that the competition authorities are hell-bent on bringing an end to collusive behaviour, there are serious difficulties inherent in investigating and prosecuting cartel conduct. The most burdensome hurdle is the fact that the existence of a cartel is often tough to prove. The Competition Commission addressed this problem by introducing the Corporate Leniency Programme (CLP) in 2004. The CLP is similar to plea-bargaining: cartel participants are offered immunity from prosecution and administrative fines in exchange for ‘whistle-blowing,’ full co-operation and the disclosure of information in support of the prosecution of other participants. Corporate leniency has proven to be a highly successful tool for obtaining critical information to which the competition authorities would not otherwise have had access. The successful action against the bread cartel is a case in point. Premier Foods and Tiger Brands applied for leniency from prosecution under the CLP and, as a result, the authorities were able to attain crucial evidence which was then used against the remaining cartel members.

The Competition Act was amended in the wake of the apparent surge in cartel activity and the resulting public outcry and media scrutiny. Amongst other things, the amendment has granted more extensive investigative powers to the Commission. However, the most interesting change is the inclusion of provisions which allow for the criminalisation of cartel activity. This will operate in addition to the remedies currently available to the Tribunal, such as administrative financial fines imposed on companies (the primary sanction). Directors who are convicted of intentionally causing or knowingly acquiescing to anti-competitive conduct are liable for fines not exceeding R500 000 and/or ten years in prison. The seriousness of the financial penalty for directors is fortified by the fact that companies are prohibited from directly or indirectly paying any fines imposed on directors convicted under these provisions.

Unfortunately, criminal sanction may act as a double-edged sword. It is true that the possibility of personal criminal liability may very well deter directors who have not yet involved their companies in anti-competitive behaviour. On the other hand, the criminal sanction could make the prosecution of existing cartels more challenging. Given the strong likelihood of personal criminal liability, directors may be considerably less inclined to participate in the CLP on behalf of their respective companies. This is particularly problematic since many of the successes enjoyed by the competition authorities have their foundation in CLP information disclosure. This drawback is only partially mitigated by the fact that a director may also apply for a more lenient penalty under the CLP should s/he choose to co-operate. A further problem is that the higher standard of proof in criminal cases may make convictions of culpable directors difficult to obtain. This procedural barrier is amplified by the reality that authorities may be less likely to obtain evidence via the CLP.

Perhaps a more sensible deterrent would be the imposition of more severe administrative fines on companies convicted of cartel activity. In this regard, the emphasis should not be on repeat offenders; first-time offenders should also experience potentially crippling blows to their financial health. This approach better coincides with the prevailing money-hungry mentality of companies prone to collusive behaviour.

Consumer justice?

The imposition of administrative fines and criminal convictions may be satisfying from the perspective of morality and fairness. However, it is unclear whether the penalties bring about any real and significant benefits for consumers.

The funds received by the Commission as a result of the financial sanctions are transferred to the National Revenue Fund. Assuming the government spends this money efficiently (for example, on public infrastructure), consumers should enjoy the trickle-down benefits of these collections. But this assumption is based on the concept of ‘trickle-down economics’ – a theory that has been much-criticised in recent times. Fact or fiction, it does little or nothing in the short-term to compensate the primary sufferers of anti-competitive behaviour, many of whom are often poverty-stricken consumers. In any event, the direct distribution of fines to consumers would present major practical difficulties: it is unclear how consumers would prove the extent of their losses or how this compensation scheme would be administered.

How should consumers be compensated? It is arguable that a reduction in the prices of the products affected by cartel activity would have the most meaningful value. Far from enjoying lower prices, history indicates that consumers have to endure prices which have been escalated even further. It seems there is nothing to stop convicted companies from recouping the losses incurred from administrative penalties directly from consumers. They can simply raise prices and expand their profit margins. The stark reality is that the competition authorities are not price regulators; they can impose fines and imprison company directors, but they are not in the position to prohibit the increasing of prices, let alone compel cartel members to lower them.

Consumers could institute civil actions against convicted cartel members. However, this is impractical due to the high costs of litigation and the fact that matters may take years to finalise. While the amendment to the Competition Act allows for class actions – which will enable consumers to share litigation costs - civil suits remain largely inaccessible for the average consumer. The National Consumer Forum is lobbying government to fund these legal challenges from the administrative fines received. It would certainly be a step in the right direction for government to adopt this policy.

In an ideal world, the bad guys would pay for their crimes. Ours is not an ideal world. The prevailing reality is that the victims pay multiple fines. It’s not enough that the poorest of the poor starve, freeze and struggle to survive due to anti-competitive behaviour. Their wealthier counterparts, as taxpayers, actually fund the enforcement of competition law and the costly investigations and prosecutions of the Commission and Tribunal. What makes matters worse is that this financial burden is compounded by the criminalisation of cartel conduct, thanks to the criminal penalties and the higher standard of proof which complicates the investigative process.

The powers that be seem to view things differently. Rather than shaking their fists and advocating for retributive justice, they have adopted a ‘prevention is better than cure’ line of attack. Their sincere hope is to create an environment which is not conducive to anti-competitive behaviour and that the resulting eradication of cartel activity in vulnerable sectors will enable consumers to feast off the fruits of increased market competition in the long run. Are the competition authorities being realistic or naively optimistic? The wisdom of their approach will turn on the efficacy and vigour of the current regime. This remains to be seen.

By Aalia Manie

3 Strikes and they’re... Striking Again!

Trade union n. an organised association of workers of an industry for the protection of their common interests. In South Africa, workers from different industries pay a fee to become members of various trade unions. What do they really get in return for their investment, and is being a member advantageous to them? Do trade unions actually protect the common interests of workers?

Consequences of Striking

Trade unions in South Africa are infamous for striking for higher wages, often for increases substantially above inflation. The majority of workers who are members of these unions believe that higher wages are always beneficial to them. And they can be - in the short term. However, trade unions do not make clear all the implications of strike action. For example, striking frequently for higher wages, especially amongst public servants, has an enormous impact on public spending and cost-push inflation (where higher input costs lead to an increase in the price of goods). In other words, the government will have less money to spend on other services such as healthcare and education due to a higher wage bill, and consumers will have less purchasing power. This means, real wages (wages in terms of goods) are eroded via inflationary increases.

Another negative consequence, which was highlighted during the June 2007 security guard strike, is that often workers cannot afford to strike for extended periods. This was evidenced by many security guards still going to work, albeit in plain clothes. Also, the 7.5% increase in wages resulting from 2007 strikes was not enough to make up for the 10% forfeit of their salaries that affected those taking part in the strike. Additionally, the 2009 civil servants strikes cost workers R235 million in lost wages and, according to Fin24, workers on strike lose just under 0.5% of their annual salary for every day they strike.

Another sector in South Africa which is fraught with strike action is the mining sector. Miners, who are often migrant workers, support many other family members. If the miner is not working and not receiving any income, then his dependants do not receive anything either which compounds the problem. This shows that there are monetary costs to other people, such as miners’ families, not just strikers.

Additionally, a primary strike is also often followed by a secondary or ‘sympathy strike’ by a supporting union increasing drastically the number of people affected. In addition, there are also significant non-monetary costs: loss of investor confidence; volatility in the economy; and sometimes even violence.

The South African Labour Market

The South African labour market has a large surplus of low-skilled workers. Therefore, low-skilled labour should be cheap, with wage increases that do not exceed inflation and are based on productivity gains. However, what has evolved is that certain trade unions with significant power, such as the members of COSATU, have distorted the bargaining power in what are now considerably overregulated labour markets. As a result, labour, while still abundant, is no longer cheap. Although there are policy arguments in favour of higher wages, there are also policy arguments in favour of higher employment. This gives rise to a major trade off. Higher wages lead to lower employment. This is not beneficial to the country as a whole and indirectly affects individual workers through a stagnant economy. According to Business Report, on average, in the last seven years, wage increases have exceeded inflation and productivity gains by 1.5 – 2%. Compounded over ten years, this amounts to an increase in the real (after inflation) cost of labour in excess of 35%. As a result, companies are replacing physical labour with technology and machines, which has altered the labour to capital ratio. This has resulted in ‘jobless growth’ – the country, in terms of (GDP), is growing, but without the corresponding increase in employment that may be expected.

What Should Unions Be Doing?

The unemployment rate in South Africa currently sits at around 30%. Trade unions should thus be trying to find avenues to retrain workers, improve their skills, advise them on their future prospects and provide a forum where there is equal bargaining power between workers and firms in order to prevent exploitation of workers by firms. Through collaborations with employers, the aforementioned goals can be achieved, and as a result, strikes will only be used as a last resort. The unions should not only be informing members of the potential repercussions of striking, but also trying to defend them against the possible ramifications. Overall, trade unions should be aiming to empower their members.

Regulating Unions

Members of a trade union are comparable to shareholders in a company. They pay an annual fee, have voting rights and hold personal interests vested in their membership. As a result, unions should be regulated as such. Company law has King III as a form of governance promoting inter alia transparency and accountability. It is arguable that trade unions should be subjected to the same type of responsibility. It seems ludicrous to exclude them when their members are the driving force behind huge corporations and public services in our country.

Dispute Resolution

If a dispute of interests (typically a wage dispute) cannot be settled through the appropriate bargaining councils or the Commission for Conciliation, Mediation and Arbitration (CCMA), then the South African collective bargaining process provides employers with recourse to lock-outs and employees with recourse to strikes. However, are strikes in their current form the best solution to an unresolved dispute of interest? This is a crucial question to answer given the large number of public sector strikes, both during wage negotiation periods and on an ad hoc basis (e.g. the 2009 doctors, nurses and teachers strikes). It is important to state categorically that striking is not a problem. Striking when it is not the appropriate solution to the deadlock is a problem. Furthermore, this problem is not uniquely South African.

Having mapped out the problematic status quo, are there any alternatives to ‘ordinary’ strike action which are equally effective, whilst less harmful?

Alternative One – Non-stoppage Strike

In a non-stoppage strike, employees continue to work while being paid their full remuneration. The employer is forced to pay a set percentage of employees’ remuneration into a designated fund. The union, in conjunction with an independent mediator, has the right to raise this percentage at set stages if it is in the best interests of all stakeholders to reach an agreement and it is economically viable to meet the workers’ demands. The contribution by the employer to the designated fund is a loss to them, and given the potential for the loss to increase continuously, will act as an incentive for the stakeholders to come to an agreement promptly. This is an attractive alternative as the total cost of strike action is reduced substantially; however the unions retain a lesser degree of leverage in negotiations. The designated fund could also be used to support skills development programmes and other employee empowerment schemes which aim to train or educate workers, making them more employable.

Alternative Two – Graduated Strike

In a graduated strike, the union calls work to a halt in stages. For example, in the first week, workers work for four days instead of five; in the second week, workers work for three days instead of five. The workers’ remuneration is decreased to match the amount of time spent working. This process continues until a settlement is reached or until the workers are not working at all. The appeal of such an option is that the cost of lost productivity is felt, hence giving the unions influence. However, as services are reduced gradually, the costs are likely to be lower than a traditional strike as parties in the negotiation procedure have additional time to reach a settlement.

In South Africa, it is viable to use both alternatives. Non-stoppage strikes could be used for certain essential workers who currently are not allowed to strike and in other industries which are of national strategic importance. In other industries, graduated strikes could be used to replace the current strike option. Using these options would reduce the overall cost of strikes for all parties involved, while still achieving the aims of strike action.

Conclusion

In a democratic country like South Africa, where everyone is granted vast rights, and further, the gap between rich and poor is so wide, the potential for disputes is high. Therefore, it is important to realise that strikes are part of our democratic process. However, alternatives that reduce the disruptive nature of such disputes are critical. The alternatives discussed above should be seriously investigated and deliberated as they provide a less disruptive means for society to achieve the unions’ aims. Ordinary strikes should be a last resort, not a knee-jerk reaction to unsatisfactory wages.

By Lauren Richards and Byron Ascott Evans

Public Interest Litigation in India and South Africa: A procedural conundrum

A recent trip to the depths of the great sub-continent has shed new light on my role as a South African citizen living in a deepening democracy. First hand exposure to the Indian legal system, witnessed through a misty haze of dust and extreme heat, has transformed my understanding of legal formalities, procedure and all things we are taught at Kramer to take for granted. Despite my initial bewilderment, embracing the frightening differences has encouraged me to unravel the red tape and question procedural rules which have undoubtedly hindered the achievement of social justice in our beautiful country for far too long.

I won’t pretend that part of my motivation to traverse India wasn’t inspired by a superficial desire to buy cheap clothing and eat unbearably hot food. However, fortunately it was the idea of experiencing the reality of the similarities between our two incredibly culturally rich countries that was really at the heart of my journey.

South Africa and India have equally monumental tasks which are similar in nature historically and socially. Both countries demonstrate incredibly successful cases of democratic consolidation in the developing world, and each boast sophisticated transformative constitutions, purporting to offer hope to its people. We therefore find ourselves on the same journey; a journey toward alleviating inequality and making the promises of our respective constitutions a reality. With this common quest to achieve substantive justice, it was my intention to see what the Indian legal system was bringing to the party.

The Human Rights Law Network (HRLN) is an Indian NGO comprising of lawyers and social activists dedicated to using the legal system as a tool to advance human rights. It was while working for the Women’s Justice Initiative at the New Delhi branch of HRLN that I first heard the term PIL (public interest litigation) being thrown around casually. After witnessing the dramatic effect of its use in the Supreme Court first hand, I was puzzled and intrigued, and realised my superficial understanding of what this action entailed needed expansion.

The first case I watched at the Supreme Court concerned an entire community of Balkimi Dalit families from Mirchpur village in Haryana who were forced to leave their homes as a result of caste based violence. One hundred and fifty families were taking refuge in a temple in Delhi after 2 people were killed, 35 homes were destroyed, looted and burnt, 50 houses ransacked and 25 persons injured. Bells started ringing in my head drawing uncanny similarities to the Xenophobic attacks of 2008 in Cape Town. A clear difference however resounded in the procedural steps which were possible in order to deal with the crisis. After a failure on the part of the government to provide relief, HRLN filed a PIL in the Supreme Court demanding that the courts do something to address the clear human rights violations and discrimination against the Scheduled Caste. The Supreme Court heard the matter one day after HRLN decided to file a PIL. That same day the bench handed down an order in favour of the community demanding that a special investigative team be set up to deal with payment of adequate compensation, relief, rehabilitation and immediate arrest of the accused. Furthermore, protection of the Scheduled Caste families was ordered in order to prevent future threats.

I was baffled. Within two days, the future of these 150 families would be changed, improved, constitutionally uplifted… My very well trained Anglo-Saxon procedural compass was going haywire. Was access to justice a reality to these people in the way that this case seemed to suggest? Could the courts ability to focus on substantive relief really be this straightforward? Sitting perplexed in the court room, it dawned on me that it was the similarities between India and South Africa which had brought me to that point, but from then on it would become about learning from the differences.

Public Interest Litigation in India

The PIL action is characterised by a unique bundle of procedures including procedural flexibility, relaxed rules of standing, an activist interpretation of fundamental freedoms, remedial flexibility and ongoing judicial participation and supervision. Developed in order to improve access to justice and encourage litigation concerning the interests of the poor and marginalized, the PIL was a conscious attempt at realising the constitutional mandate espoused in the directive principles of the Indian Constitution.

Relaxed locus standi rules are procedural feature of the PIL. When representative standing was adopted, the court spoke about the necessity to move beyond the blinkered rules of standing from the British-Indian vintage and shift the gravity of justice away from traditional individualism toward a more community orientated public interest focus. South Africa has embraced this same philosophy in Section 38 of the Constitution. It is interesting to note that all the fears attached to similar provisions, which had prevented South Africa from accepting this approach before, never eventuated. The proverbial floodgates were not opened and process has not been abused. Rather the less formalistic approach adopted has resulted in the better fulfilment of the fundamental right of access to courts. Who is to say the adoption of other procedural rules will not have a similar positive result? Sometimes these logistical fears are not as formidable as they seem and should not prevent us from adopting more flexible procedural mechanisms which would generate positive substantive change.

As aspiring South African lawyers, procedural flexibility may seem like a foreign concept as we cart around our MCA, SCA and CPA books so diligently, but believe it or not our ridiculously complex procedural requirements are not adopted unthinkingly by the universal community. The PIL is distinctive in that proceedings are allowed to commence merely by a formal writ petition to the Supreme Court. The court has also accepted letters and telegrams and even newspaper clippings as the basis for a PIL action. This flexibility broadens access to justice and makes the legal system something which all citizens can make use of, not just those with deep pockets who have access to legal representation.

Another procedural conundrum for us as a nation with a comparatively conservative separation of powers jurisprudence, is that the Indian Supreme Court has the power to establish committees or commissions of inquiry in socio-economic rights cases which are too complex or expensive for the court to uncover. Therefore, instead of being deferent to the legislature or executive, the court gathers its own facts by appointing district judges, journalists, lawyers, mental health professionals or expert bodies as commissioners.

The use of these commissions has shifted the focus of the courts from procedural pedantry to substantive relief. In other words, the rhetoric of rights is not where the quest to attain substantive justice ends. It is an appropriate degree of judicial activism with a focus on remedial intervention which gives public interest litigation real value. The nature of the issues raised in socio-economic rights litigation is such that expert knowledge is required to assess the reasonableness of government policy. Maybe committees of this nature will avoid the courts resorting to deference as a shield from a more rigorous investigation of the issue at hand. This will ultimately lead to more informed granting of substantive relief to the litigants.

The Indian procedural process is obviously not immune to criticism, but just for a moment perhaps we should take a step down from the ivory tower and think about the bigger picture. How are we supposed to achieve substantive justice if use of the law is realistically only a tool which is still largely reserved for the rich and the famous? Furthermore, how are courts supposed to be influential if procedural complexities prevent the courts from providing substantive relief? The Supreme Court in India justified their alteration of procedural requirements as a constitutional duty to further the protection of fundamental rights. We cannot make the excuse that we are a developing country with insufficient economic and social capacity to deal with such progressive procedural changes. India shares these systemic problems, yet they have managed to forge new tools in order to give meaningful content to fundamental rights and put access to justice and remedial intervention at the heart of the courts role in public interest litigation.

By Sarah-Jane Frith

Islam v Constitution

At the beginning of the year, I decided to go to Islamic marriage classes. At that point, I had a slight inkling of what was to come. I tried to go into these lessons with an open mind, knowing that I would inevitably clash with some of the teachings, but not knowing the extent to which I would clash.

Most of the conflict between Islam and the Constitution arises with the rights and duties of the husband and wife. There are very clearly delineated roles for husbands and wives, which do not allow much freedom for deviation. Each spouse has different responsibilities, and these cannot be interchangeable. This impedes the right to equality and economic freedom, as well as freedom of movement.

In the Quran, a verse in Surah Baqarah says: ‘And women shall have rights similar to rights against them in justice, but men have a decree over them.’ This verse clearly shows the hierarchical nature of marriage.

A husband has the duty to sustain his wife by providing her with her basic needs. This is called nafaqah. Surah An-Nisaa in the Quran says: ‘Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in absence what Allah would have them guard.’

It is therefore evident that husbands obtain the right to have obedient wives because of this one-sided duty of support. Wives need the permission of their husbands in order to leave their homes, and may not even visit their families without the permission of their husbands. This clearly infringes the wife’s right to freedom of movement. If a wife disobeys her husband, she forfeits her right to nafaqah.

The husband has the right to prohibit his wife from being employed if it entails interference in her duties towards him or it adversely affects her domestic responsibilities. This is especially the case if she has to leave home. A woman can only be employed without the husband’s consent if he fails to provide her with nafaqah. If she earns a salary, it is hers to keep, and if she does choose to help out with family expenses, she can enforce this as a debt which is owed to her by her husband.

The obvious problem with this is that a woman’s right to freedom of economic activity is contingent upon her husband giving her permission to work. If her husband earns enough to make their lives comfortable, he is well within his right to forbid her from working, despite her own will and any aspirations she may have. A more subtle problem is that the upkeep of the family is the husband’s sole responsibility. This is paternalistic – women are perfectly capable of taking on this responsibility. In doing so, a woman has more say in marital finances, and gains some measure of autonomy within the relationship.

In Islam, a man has the unilateral right to divorce his wife. This is called Talaq. The first two times a husband gives his wife a talaq are revocable – the two may reconcile and get remarried. The third talaq is irrevocable. A woman has no rights of talaq unless she stipulates in the marriage contract that she will be able to use delegated talaq (Talaq-i-Tafwidh) in specific instances. If she does not have this delegated right, she has to apply to the ulama Muslim Judicial Council for a faskh. Polygamy is not a ground for a woman attaining a faskh, since it is seen as the man’s right to take more wives. Instead, the wife can stipulate in the marriage contract that if her husband acquires another wife, she will have the power to divorce him.

The power of talaq gives husbands the right to divorce their wives on a whim, without any judicial process. A wife has to go to the Muslim Judicial Council (MJC) to obtain a quasi-judicial divorce on a number of very specific grounds, which must be proved. Clearly, wives have to overcome many more procedural barriers than their husbands in attaining a divorce.

Islamic marriages are always out of community of property. Imam Moutie Saban, my marriage counsellor, explained it thus: A man inherits the house his father has worked all his to obtain. He gets married in community of property, and after a year, his wife divorces him and takes half of what his father worked hard to give to him. This explanation was one-sided and simplistic, reducing potential wives to gold-diggers. Yet this view is quite prevalent amongst the many conservative clerics who make up the MJC. Men who marry according to South African civil law are seen as foolhardy.

Islam is open to the accrual system, but many women are unaware of this. This property regime was omitted in marriage classes, yet it is a viable alternative. The argument against accrual is that since it is the husband’s sole responsibility to maintain the children after a divorce, and a wife only has to take care of herself, the husband should not have to divide his estate in favour of the wife. Yet this presupposes that the woman has the skills and means to provide for herself. The reality is that women incur the opportunity cost of foregoing employment and skills development in order to enable their husbands to go out and earn an income.

Islamic marriages are unregulated in South Africa. The courts have recognised Islamic marriages in terms of the Intestate Succession Act – the word ‘spouse’ is deemed to include de facto Islamic spouses. However, most Islamic unions are outside the law, since most Imams prefer not to be registered as official marriage officers. This leaves Muslim women especially exposed, since they cannot appeal to common law process or benefits. However, courts have begun to recognise and enforce the rights and duties arising from an Islamic marriage, such as the wife’s right to nafaqah and enforcement of the bridal price (dowry).

The problem facing potential reform of Muslim personal law is the fact that many believers consider the law to be God’s law and therefore immutable. However, there is a growing trend of scholarship which emphasises the recognition of equality between men and women. Many Islamic jurists have emphasised ijtihad, which is the use of independent reasoning to arrive at legal principles in modern times. They have used a contextual approach, limiting the practices of 7^th century Arabia to that time. Most Islamic texts were first interpreted and analysed by men, and voices which initially called for more progressive interpretations were silenced by the mainstream. Thus it is possible for women to work within Islam to realise their rights.

Many countries have used this progressive thinking to give more rights and remedies to women. Malaysian courts allow housewives to claim a share of the matrimonial assets upon divorce. Tunisia has banned polygamy using Quranic verses read together. Surah Nisaa says: ‘If ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two or three or four, but if ye fear that ye shall not be able to deal justly with them, then only one.’ Another verse says: ‘Ye are never able to be fair and just as between women, even if it is your ardent desire.’ Thus it can be seen that by using a contextual approach of the Quran as a whole, it is possible to reach a progressive outcome.

Thus there remains a sliver of a hope that Muslim personal law can be reformed in terms of the Constitution. There is much more room for interpretation than many people have imagined. Yet the effectiveness of reform depends on the mind-frame of adherents of the religion. People will have to undergo drastic changes in perception. The legitimacy of progressive interpretation lies in its acceptance by believers and more importantly, the MJC, since they have been vested with the moral authority to guide the community.

By Nabeelah Martin

Understanding Customary Law: Developing It

What is customary law?

Customary law is a specific type of custom which emanates from cultural groupings. In South Africa, it ordinarily stems from the indigenous knowledge systems of people of native African descent, as well as the religious practices of Hinduism and Islam which derive from people of Indian and Malay descent amongst others. Customary law carries with it great potential insight into the beliefs, ideologies, values and behaviors of these diverse, marginalized peoples. This article is about the need to take African Customary Law (ACL) seriously.

Different conceptions of law and justice: the dwindling image of African Customary Law

There are many different angles from which legal problems may be evaluated. The culture of the observer has a tremendous effect on the particular view they choose to adopt. This choice has significant bearing on how a legal system answers fundamental questions such as: What constitutes justice in the social, moral and legal sense? How do we go about achieving justice? A Western or European view, for example, embraces individual autonomy as paramount to its philosophy of social, legal and political freedom. This differs markedly from indigenous African philosophy which considers individuals as intrinsic to much greater social orders, such as family and community, to which generalized obligations are attached. These differences of perception regarding the individual have resulted in many misconceptions. One key misconception is that which deems ACL as an unnecessary, outdated and inadequate complication of a functioning legal system – particularly in the context of family and law. This stance is unacceptable as it would amount to paying lip service to the constitutional acceptance afforded to ACL a source of law. It is not in contest whether or not ACL ought to be developed. The more important question to be addressed below is how we should go about achieving this development.

Important considerations when developing ACL

An analysis of the development of ACL must recognize from the outset the fact that a ‘western idea of legal order has consciously and subconsciously been imposed’ on indigenous African communities to the wholesale exclusion of the ideas and beliefs of these communities (Bennett). African Customary Law, for example, traditionally never contained categorisations such as property, delict and contract or distinctions between criminal and civil law. These were partly imposed through the misinterpretation of ACL rules resulting in their eventual superficial codification. This codification created what we now refer to as ‘official’ ACL. This development of ACL looks suspiciously like an attempt at moulding ACL into the Euro-style common law. The ‘repugnancy clause’ contained in the now repealed Native Administration Act 38 of 1927 best exemplifies this. To some extent the impulsive temptation of treating both African customs themselves and ACL as one homogenous unit can be linked to this codification.

Codification of ACL has however not merely created generalizations of the practice of ACL amongst various clearly distinctive African cultures, but has also downplayed another existing type of ACL - making the already complicated interpretation of ACL an even more difficult task for the ‘ordinary’ civil and criminal courts. This different version is what is termed as ‘living’ ACL. Thus far, the courts have been left helplessly unequipped and uneducated with regards to living ACL and this has increased the likelihood of ACL being approached from the official ACL perspective.

This has lead to findings of constitutional flaws and invalidity of practices which in many instances, under living ACL, have already been subject to changes, if not discontinued. I should emphasise, again, that I am not arguing that those rules that are not in keeping with the constitution ought to be left alone. Rather, my point is that informed considerations owing to current practices be taken into account by the courts, as has on occasion been done by the Constitutional Court (see Shilubana v Nwamitwa).

Access to justice: What is the appropriate location for the development of ACL?

Access to justice, which is perhaps one of the most fundamental principles underlying the rule of law, is generally accepted to be attainable through ‘ordinary’ court processes. In South Africa, however, this is not all cut and dry. The majority of the people have historically not seen the courts as a place of justice. This is still true today. The general lack of knowledge and understanding of rights only serves to increase the insufficiency of courts as the sole means of access to justice. Additionally, socio-economic factors create a financial wall preventing the vast majority of South Africans from having access to courts. One of the leading legal scholars on ACL, Professor Tom Bennett notes:

“In the African continent, approximately 70% of legal disputes are resolved through Traditional Court. In South Africa, this percentage would jump to nearly 95% if criminal courts were removed from the equation.”

The common law may have a clearly favoured dominance over customary law in many of the legal transactions of the country, but its use ‘on the ground’ is not as self-evident. I would venture to say that it is on the basis of economic practice, under a very western global system of capitalism, that the common law finds its extreme significance. The fact remains, however, that Traditional Courts and tribal authorities, as they are recognised by the Constitution, play a more crucial role than civil courts in administering customary law – and dare I say understanding it. These courts are very often the domain of tribal authority through which Traditional Leaders play the central role in the resolution of the community disputes which involve the application of living ACL.

Traditional courts therefore have the potential to be of greater use in showing how a more nuanced and truly pluralistic legal system can function.

The future adjudication concerning customary law matters in ordinary courts requires that judges and lawyers involved have a much wider knowledge of the various customs under ACL. If a matter of ACL comes before an ordinary court, and the court cannot with confidence ascertain which rules or aspects of ACL are in question, or what the state of living ACL is in reality, I would suggest that the court be able to defer this particular point of law to a Traditional Court.

Deferment of legal matters would of course require that there be some sort of basic legislative guideline to be into place.

Possible legislative intervention

A possible alternative to the deferment described above would be wholesale intervention by the legislature in order to ‘update’ ACL taking into consideration its current state. The legislature would have to step in and grapple with the issue of rules under living ACL. Some would argue that in doing this, the legislature would effectively be codifying living ACL and thus risk recreating the current problem in the future. This need not be the case. It is advised that a consultative arrangement with the Traditional Authorities is necessary as they directly affect the practices within their various cultural communities. Further, continued assessment of current practices would have to be compiled and updated so that anomalies may be identified. Any legislation would have to be regularly reviewed for potential updates.

Conclusion

Regardless of these unnerving requirements, I am inclined to believe that living ACL is such that finding a number of common principles cannot and should not be problematic. In many of the indigenous cultures, differences tend to be with regards to practices themselves and not the principles behind them. Therefore development oriented legislation regarding ACL must be informed by these factors so that the dynamism of it is not lost.

By Mpho Moshe Matheolane