My reading journal consists predominantly of cases and legal readings as I am an avid law student and this is a law blog after all. The readings I have listed here are all readings that I either found interesting, or that taught me something about the law or life. That being said, let’s talk readings!
This book illuminates the life and perspective of Edwin Cameron who rose through the ranks of the judiciary under the apartheid government, all the while trying to fight an oppressive system from within. The book touches upon Cameron’s childhood hardships, struggles with sexuality, and HIV stigma. Cameron’s account illustrates the power and limitations of the law coupled with his own life experience, following his rise from poverty to a Justice of the Constitutional Court. This book is a fascinating and inspiring read as it shows the rise of a man to one of the most prominent seats of power in our country despite battling stigma, and how he used that power for social transformation once he acquired it.
This year, I have been exceptionally busy and have for the first time found myself struggling to make time to read. But one book (or rather trilogy of books) has been my companion throughout these past four terms: The Lord of the Rings. Ugh. Such an obvious pick, I know. But I made it my goal this year to re-read this book, however long it took given my crazy schedule. But why re-read something? Well, simply put, because I didn’t appreciate it enough the first time. The first time I read this book, I was in grade nine, and I have not read it since. I appreciated the style of writing and the fantasy of it, sure. But you never truly appreciate something until you look at it again with fresh eyes and new perspectives. For the purposes of my reading journal, I shall elaborate upon each book and what I took from it, and why I chose to read it.
From The Fellowship of the Ring, the main lesson I took from it is courage. If Frodo hadn’t had the courage to step up and offer to take the ring to Mordor, all would have been lost. This reminds me that even the most unassuming of people can make the biggest difference and to never underestimate yourself. From The Two Towers, what stood out for me was the importance of friendship. Without Sam’s constant guidance and support, Frodo would never have even made it into Mordor in the first place and would likely have given up long ago. It is also in this book that Gollum tries to poison Frodo against Sam, which to a certain degree succeeds. This speaks to not trusting fake friends and believing those who have always stood by you as Frodo’s mistake of trusting Gollum over Sam eventually has dire consequences for Frodo. From The Return of the King the main thing that stood out for me was hope. There is always hope, even in the darkest of times and most difficult of circumstances, and while there is still hope, the fight is not lost. Towards the end particularly, The Lord of the Rings becomes a story about never giving up despite the odds, and this is something that I found extremely powerful.
Constitutionally Speaking by Pierre De Vos from https://constitutionallyspeaking.co.za/
Rather than review every post that constitutional law expert Pierre De Vos posts (as I usually browse through them as they come out), I would rather review the blog in its entirety. This blog was the inspiration for me starting my own law blog as De Vos unpacks both law and politics in his apt, razor-sharp critiques of current events as they unfold, recently dealing with issues such as Statue Capture and the possibility of President Zuma being prosecuted. All in all this blog showed me how to make law more accessible to the general public.
Distinction without Difference: The Constitutional Protection of Customary Law and Cultural, Linguistic and Religious Communities – A Comment on Shilubana and Others v. Nwamitwa by E.S. Nwauche in Journal of Legal Pluralism, 2009
This article was written by one of my law lecturers and basically shows that even though we may not recognise the laws of various communities, it does not mean that those communities will not continue to unofficially practice their own laws. It goes on to state that we should be able to recognise these laws and “normative orders” through s 31 of the Constitution, rather than just recognise the official Western legal order and various customary law orders.
This case was a landmark case and one of the first prominent judgments of the Constitutional Court. Makwanyane dealt with the constitutionality of the death penalty, which was found to be unconstitutional on the grounds that it violated the rights to life and dignity (which were found to be linked). Prison was found to be a less restrictive means of achieving the same purpose as the death penalty, namely the prevention of violent crime and the prevention of repeat-offenders. The death penalty was thus abolished from South African law, despite the fact that the general public approved it as our courts are courts of law, not public opinion. The case also dealt with the incorporation of African values such as Ubuntu into South African law. This case is probably the most famous case in South African law and is still quoted to this day as the principles regarding the link between the right to life and dignity, as well as the principles of restorative justice, sit at the core of our Constitution. It is a very fascinating case for anyone, regardless of their field of study.
This case is an extremely famous judgment of the Constitutional Court in which the court found that the common law offence of sodomy to be unconstitutional on the ground that it discriminated unfairly against homosexual men on the basis of their sexual orientation. The court also held that as a minority group, homosexual men need to be protected as they have been historically targeted and that the continued criminalisation of sodomy was a violation of their right to dignity. The judgement has been viewed as part of a growing acceptance of difference in an increasingly open and pluralistic South Africa, something that sits at the very core of our ideal society and aspirations for the future.
This case dealt with the extension of the common law definition of rape. Prior to this case, the common law definition of rape was not unconstitutional in that it “criminalised conduct that was clearly morally and socially unacceptable”, however the court held that the definition needed to be appropriately adapted because it fell short of the spirit, purport, and objects of the Bill of Rights. This is because the common law definition of rape fell short of the right to equality as men were not included in the original definition. As such, the common law definition of rape was extended from the non-consensual penetration of a penis into a woman’s vagina to the non-consensual penetration of a penis into a person’s anus or vagina. The court found that it was possible, when the interests of justice required it, for the appropriate courts to develop the common law prospectively only. The court found that should the common law be extended retrospectively, it would offend the principle of legality as “it would be unfair to convict an accused of an offence in circumstances where the conduct in question did not constitute the offence at the time of the commission”. As such, the accused was not convicted for anal rape as it was not a crime at the time of commission. This case is of particular interest as aside from permitting men into the definition of rape, it shows us the way in which the law is applied: prospectively.
This case, much like Makwanyane, concerned the right to dignity as corporal punishment was found to be a violation of this right and was accordingly struck down. The decision was taken with respect to five different cases in which six juveniles were sentenced by various magistrates to receive a number of strokes with a light cane as “moderate correction”. The court also found that corporal punishment was inconsistent with the Interim Constitution insofar as it violated the right of protection against cruel, inhuman, or degrading punishment. This case gave rise to the promulgation of the Abolition of Corporal Punishment Act 33 of 1997 and is something that has governed my schooling life as thanks to this case, I have never been subject to such treatment. It changed the way in which we think about discipline.
This case was a mammoth case concerning human rights and the s 26 right to housing in the Constitution. A group of people were evicted en masse from their informal dwellings, which were situated on privately owned land earmarked for low-cost housing. The evicted people then approached the court for an order requiring the government to provide them with adequate basic shelter or housing until they could find permanent accommodation. The court confirmed the principle that people are not entitled to claim shelter immediately, but rather that the State must just have a reasonable plan to provide them with housing as the court cannot dictate to the government how to use its resources given the widespread need for these resources. What I found most interesting about this case however is that it confirmed that civil-political rights are inextricably linked to socio-economic rights as your rights to dignity and life are not worth much if you do not have a house, access to healthcare, or water.
In this case, the President of the Cape Law Society declined to admit Prince as an attorney as Prince was a Rastafarian who had previous convictions for possession of dagga and had expressed an intention that he would continue to possess and smoke weed. Prince raised an argument that this infringed upon his right to freedom of religion as protected by s 15(1) of the Constitution. The court found however that it would impossible for the State to differentiate between Rastafarians and general weed-smokers and that this would hinder the State’s ability to enforce its drugs legislation. As such, Prince lost the case. I thought this case was quite cool as the arguments were well advanced however one of the main points was that Prince admitted to also using it for recreational purposes and not just religious purposes.
Prince v Minister of Justice and Constitutional Development and Others; Rubin v National Director of Public Prosecutions and Others; Acton and Others v National Director of Public Prosecutions and Others 2017 (4) SA 299 (WCC)
This case was extremely interesting as it is the case that has left the legal position regarding the private possession and consumption of weed very much up in the air. The Court declared parts of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act inconsistent with the Constitution to the extent that they encroach upon private use and consumption of cannabis for personal purposes. The Court suspended its declaration of invalidity for two years to allow Parliament time to correct the defects in the legislation. Until this period of two years has passed and Parliament has corrected the defects, we can only wait and watch this space with interested eyes as the legalisation of weed would have massive implications for South Africa and her economy. This case was also interesting as it was again bought by Prince, who appears to finally have been somewhat successful!
This was a fundamental case in recognising the rights of same-sex couples as it allowed same-sex couples to inherit from their partners if their partners died intestate, despite the fact that gay people could not get married. It was a great step in the right direction and shows the changed attitudes in South Africa.
The was the case that really got the ball rolling in recognising the right to equality as it was the case that finally found that gay people should be allowed to get married. The court in this case gave the Legislature a year to enact legislation recognising gay marriage, otherwise they would just read into the Marriage Act to allow for same-sex couples to get married. The Legislature passed the Civil Union Act on time however and gay people can now get married. This was one of the most visible steps towards equality that the courts have taken.
This case was also a very interesting case as the Court in this case extended the s 9 right to equality grounds for unfair discrimination to include HIV status, providing that it is unfair and unlawful to discriminate against someone on this basis. This case interested me as it shows that our courts are progressive and are prepared to extend even our constitutional provisions where needs be and where justice requires it.
This case concerned a policeman firing at a teenager on the belief that the teenager had been party to stealing a car. The teenager was shot in the spine while trying to run away, rendering him paraplegic. The court found this to be an unreasonable display of force as the teenager was no threat to the policeman and as such the plaintiff was awarded damages. This case interested me particularly after the student protests erupted across the country last year as it shows the limits within which the police must act and what reasonable force actually entails.