Legal News from Africa

02 December 2013 Issue No 556 CONTENT LINKS • AFRICA FOCUS • NEWS BY REGION  • North Africa • West Africa • East Africa • Central Africa • Southern Africa • GENERAL • AFRICA INTERNATIONAL • LEGISLATION UNDER REVIEW • AFRICA ANALYSES REGISTER NOW for a FREE subscription to LEGALBRIEF AFRICA Legalbrief Africa Links • Visit the Legalbrief Africa site • Subscribe • Unsubscribe • Contact Us • Advertise with Us • About IBA • IBA Membership • International Practice Diploma (Distance Learning) • Terms & Conditions Legalbrief Africa is supported by theOpen Society Initiative for Southern Africaand Legalbrief Quotes of the Week ‘From what I have heard, Angola is the first country in the world that has decided to ban Islam.’ – Elias Isaac, country director of the Open Society Initiative of Southern Africa, after Angola was accused of ‘banning’ Islam after shutting down mosques ‘It was through the spirit of give and take. We are happy that these new rules will help to strengthen operations of the ICC. The ICC has been telling us that our president and his deputy are mere suspects at the court and should be treated as such. Not anymore after this amendment.’ – Kenya’s Cabinet Secretary for Foreign Affairs Amina Mohammed after the Assembly of States Parties made key amendments to the rules of procedure and evidence regarding the cases against President Uhuru Kenyatta and his Deputy William Ruto ‘I am really busy in courts in the East Rand, but I'm here the most. My nation seems to spec ialise in spec ialised crime.’ – Comment by a Bulgarian court interpreter in the Johannesburg Spec ialised Commercial Crime Court, where Ivan Savov, the manager of Radovan Krejcir's Money Point business, appeared on fraud and money laundering charges ‘The United States believes in the importance of accountability for those responsible for crimes against humanity, and we have taken seriously Kenyan concerns about the ongoing trial proceedings.’ – Samantha Power, US ambassador to the UN, after International Criminal Court member states agreed to let defendants ask to appear by video-conference in a concession to a Kenyan campaign against the trial of their leaders ‘I regret my past actions. I ignored my inner man and we all have an inner man.’ – Lazarus Mazingane, the so-called Nasrec serial killer and r apist, quoted in theSowetan, expressing regret for the 17 murders and 24 r apes of which he was convicted ‘The prospective test case client, and the basis of his or her complaint, would need to be carefully selected to ensure that the real toll road issues are put cogently before the court.’ – Legal firm Findlay & Niemeyer Inc offering to defend the first non-paying e-toll road user as a test case free of charge ‘It is important also to just send a caution that we have got laws, yes some of them we will have to amend, but the continuing of flaunting of these pictures (of) a place which has been declared by the minister of police as a national key point is also not correct. It is a breach of law.’ – State Security Minister Siyabonga Cwele on the publishing of photos of President Jacob Zuma’s Nkandla homestead ‘We will continue to publish images... because we firmly believe there is immense public interest in doing so.’ – The South African National Editors’ Forum reacting to the Cabinet directive on publishing photographs of Nkandla At a glance * Seventy-five Indonesian fishermen who were stranded in the Cape Town harbour for weeks without pay or food have been sent to the Lindela repatriation centre in Gauteng. It is still not known who the boats belong toand who the real employer of the fishermen is. The vessels were earlier arrested and the Department of Fisheries is continuing its investigation. – Die Burger *AllAfrica co-founder and chair Amadou Mahtar Ba has been named for the third successive year as one of the 100 most influential Africans. New African magazine says in its current issue that Ba, in his role as chief executive of the African Media Initiative, ‘is possibly the best connected person in the media sphere, with access to the biggest media owners operating across the continent’. Others listed are N igerian television host Mosunmola Abudu, South African media bosses Koos Becker and Khanyi Dhlomo, Ghanaian-born BBC newscaster Komla Dumor, Kenyan lawyer-turned-journalist Julie Gichuru, South African-born host on Al Jazeera television Redi Tlhabi and N igerian media executive Alex Okosi. – allAfrica.com  *Chocolate lovers who want to ‘have a break’ and ‘have a KitKat’ would not confuse their favourite sweet treat, produced by Nestlé, with the alternative Tiffany Break. A North Gauteng High Court judgment found the company manufacturing the Tiffany Break chocolate was not infringing on the KitKat trademark belonging to Nestlé. Nestlé had asked the court to find that UAE company Iffco – which distributes the Tiffany Break – infringed on its trademark rights as the four-fingered and two-fingered wafer chocolates appeared very similar.  – Weekend Argus *The families of two British women targeted in an acid attack in Zanzibar say the UK Government must apply more pressure on the Tanzanian authorities. There was no ‘sense of urgency’ from the Foreign Office and a photo of a suspect arrested by police had not been shown to them, they said.Kirstie Trup and Katie Gee, both 18 and from London, were attacked by two men on a moped in August. – BBC News *President Jacob Zuma has appointed six new female judges to the High Court in South Africa on the advice of the Judicial Service Commission. They are: Advocate Igna Tersia Stretch (Eastern Cape High Court in Bhisho); Segopotje Sheila Mphahlele (South Gauteng High Court); Advocate Maria Mabel Jansen (South Gauteng High Court); Advocate Nicoline Janse van Niewenhuizen (North Gauteng High Court); Somaganthie Naidoo (Free State High Court), with effect from 1 January 2014; Nolwazi Penelope Boqwana (Western Cape High Court).  – News24 * A senior N igerian football official and a club administrator have been banned for 10 years following their involvement in corruption, the country's football authority has announced. The N igeria Football Federation (NFF) banned the chair of its own disciplinary committee, Olaleye Adepoju, for 10 years for taking a bribe from a club.The NFF emergency committee also handed Dapo Lam-Adesina same sanction for his role in the scandal, excluding both men from all football-related activities following an investigation.  – BBC News  *N igerian police say they have arrested a man with $500 000 worth of cocaine stashed inside hi-fi speakers. The 28-year-old N igerian national was held at the northern Kano airport after flying in from Sao Paulo in Brazil. Police said they found 3kg of pure cocaine. – BBC News *Convicted murderer Molemo ‘Jub Jub’ Maarohanye may celebrate Christmas with his family if his lawyers have their way. The award-winning musician’s defence counsel asked the South Gauteng High Court to release him on bail pending the outcome of his appeal next year. Maarohanye’s legal representative, Willie Vermeulen SC, argued that the musician be released on bail because the Protea Magistrates’ Court’s decision to sentence him to 25 years in prison on four counts of murder and two counts of attempted murder would be overturned on appeal. – City Press BOOKSHELF Nat Nakasa: Boxed into dead-end despair Ryan Brown Jacana. R180 The seldom-practised discipline in South Africa of writing literary biography now brings in this much-lauded record of Nathaniel Ndazana Nakasa (1937-65). He was the bumptious, undersized youth who thrashed the famous Drummagazine literati of the Fabulous Fifties and who founded the literary quarterlyThe Classic (which ran for all of three issues under his editorship). Yet as the Fulbright-fuelled author here, Ryan Brown, seems unaware, devising such biographies at all tends to be a somewhat elitist Western exercise in terms of audience and subject matter. Whereas Brown's exemplary trawl of the available printed records, imperfect as they are, and of wide-ranging interviews during her stay- over in Johannesburg and of the obscurest archival sources will feed the slow-moving harem of scholarship for decades to come, perhaps more footwork than footnotes was called for. For example, how come this researcher did not pick up, analyse and interpret Nakasa's own description of himself: biologically Pondo, by habitat Zulu and strictly English-speaking? Why does she not note that his birthplace of Durban, which she goes on and on cutely calling a ‘sleepy coastal city’, was actually a British colonial backwater? Surely there he was taught to be everything his class and colour prevented him from being. Once Nakasa had escaped on an exit permit to Harvard to study journalism (not postcolonial politics) Brown should be more on her home ground. But once more a query arises: Why did she miss the long, award-winning story calledThe Exile, published in theMassachusetts Review in 1970, which summarises all the memorialising tugs about our Nat? Her publishers, Jacana, could also have chosen better than to encase Nakasa's image on the cover in pink and to have decapitated him on the spine. After all, when he hit the sidewalk after flying seven storeys, his blood exploded red. Like anybody else's. – Stephen Gray Latest judgments online Supreme Court of Appeal  National Commissioner of the South African Police Service & Another v Southern African Human Rights Litigation Centre & Another (485/2012): Rome Statute of the International Criminal Court – crimes against humanity – implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act) – interpretation of s 4 of the ICC Act – competence of South African Police Service to investigate crimes against humanity committed outside of South Africa – ss 13, 17 of the South African Police Service Act 68 of 1995 – powers of the National Director of Public Prosecutions in terms of the National Prosecuting Authority Act 32 of 1998 – circumstances of case warrant initiation of investigation. Judgment Maseti v The State (353/13): Criminal law – s exual offences – improper splitting of charges – attempt to commit a s exual offence – need to specify offence in the charge sheet – proper approach to evidence – inability of accused to proffer reason for allegations against him not, on its own, a proper ground for rejecting his evidence or convicting him. Judgment The views expressed in this newsletter are a reflection of those contained in the original reports to which they are linked, and are not necessarily those of the International Bar Association, Juta and Company Ltd or Legalbrief. Disclaimer Any information, including journalistic articles, in this electronic newsletter is not intended to constitute legal, financial, accounting, tax, investment, consulting or other professional advice or services. Before making any decision or taking any action, which might affect your personal finances or business, you should consult a qualified professional advisor. For more information, please read our Terms and Conditions. © 2013 Juta and Company, Ltd AFRICA FOCUS CAR: ‘A human catastrophe of epic proportions unfolding’ The Central African Republic (CAR) is descending into ‘complete chaos’, the UN has warned amid growing calls for international military intervention. Legalbrief reports that the desperately poor landlocked nation prone to coups, insurgencies, banditry and mutinies, was plunged into anarchy after a rebel coalition known as the Seleka (Alliance) ousted President Francois Bozize on 24 March. The rebels opened the way for one of their leaders, Michel Djotodia, to become the first Muslim president of the Christian majority nation. Djotodia has officially disbanded the Seleka, but the predominantly Muslim insurgents have attacked villages, killing inhabitants who fail to flee. A report on the News24 site notes that Paris last week presented the UN Security Council with a draft resolution aimed at reinforcing a regional African military mission in the CAR (Misca), with the goal of turning it into a UN peacekeeping force. French envoy to the UN Gerard Araud has said the resolution could be passed this week, according to the report. It says French troops have begun to deploy to the CAR, airlifting men and equipment to Bangui in preparation for an intervention to restore order. French Defence Minister Jean-Yves Le Drian has announced plans to deploy 1 000 soldiers to help halt mounting violence in the country, where unprecedented religious clashes have aroused international fears of sectarian massacres. UN deputy Secretary-General Jan Eliasson is also calling for urgent action. BBC News reports that he urged the Security Council to strengthen the African Union-led force in the country, and to turn it into a UN peacekeeping operation. The report states that 460 000 people – 10% of the population of 4.6m – have fled their homes, while more than a million need food aid, according to the UN. Full report on the News24 site Full BBC News report  In an editorial, The Guardian notes that the toll on the people of CAR is huge with reports that men and women have been tied together and thrown to crocodiles, a father had to watch his four-year-old son's throat being slit, r ape is endemic and children are being forced into the militias. ‘International troops, too few to prevent the conflict growing, are there. The crisis in CAR is not yet a genocide or a sectarian civil war but, as the UN and France said again on Sunday, it is headed in that direction. The international powers are moving to action. The deputy secretary general of the UN, Jan Eliasson, acknowledges the situation in CAR is deteriorating fast. This week the UN security council is likely to commit to turn the African Union-led force into a UN peacekeeping operation, but it will take months to organise. There are also, however, some signs of hope. After a prolonged period of failure, the rebel M23 militia were suddenly defeated after the UN force adopted a more aggressive role in DRC. Meanwhile, the African Union mission in Somalia (Amisom) has had some success against al-Shabab. Any intervention carries great risk, but boosting the international force in Central African Republic for a limited operation may yet prevent the crisis turning into a catastrophe. It must not be delayed.’ Full editorial in The Guardian Djotodia on Saturday denied European assertions that his country was on the brink of genocide and all-out inter-religious war. A report on the gulfnews.com site notes that although Djotodia has dissolved the rebel coalition, which has been accused of human rights abuses, his government’s failure to stem the violence has prompted calls at the UN Security Council for international intervention to restore order. Speaking at his residence in Camp de Roux, a colonial military camp on a hill that overlooks the Oubangui River, Djotodia attributed the violence to settling of scores between those loyal to the previous government and some Seleka elements. ‘We hear people talk of inter-religious war, sometimes they talk of genocide. What group wants to exterminate the other? Who is planning to exterminate the other?’ Djotodia asked, according to the report. ‘For me, there is nothing to show that we can even talk of what is going on as genocide,’ Djotodia is quoted in the report as saying. Full report on the gulfnews.com site  Shocked by the escalation of killings, r apes and other abusescommitted by Muslims against Christians, leading clerics from both faiths recently travelled together to preach peace and listen to tales of horror. A report on the allAfrica.com site notes that the level of violence, lawlessness and impunity that prevails in CAR – where ‘a human catastrophe of epic proportions is unfolding’, according to Amnesty International – is so great that Archbishop Dieudonne Nzapalainga and Oumar-Kobine Layama, the country's leading imam, had to travel under an armed escort. ‘Now we need to ask ourselves, do we want to push this country towards inter-confessional war, or should people work together and build this country? This is what leaders need to consider,’ said Nzapalainga in Bossangoa – 300 km north of the capital, Bangui – where some 36 000 people are seeking refuge in the grounds of the Catholic mission as well as in a school. The country had ‘reached the worst of the worst’ in every sense, he said, according to the report. Full report on the allAfrica.com site NEWS BY REGION  North Africa Egypt: Constitution drafters protest over fresh clampdown Ten members of the panel drafting Egypt's new constitution have walked out in protest over the arrests of dozens of activists rallying in Cairo. BBC News reports that the activists were held in the capital after demonstrating against a new law which restricts public protests. But, notes the report, a spokesperson for the constituent assembly said he had received assurances that they would be freed soon. He also said a referendum on the amended constitution would be held before the end of the year, according to the report which notes it is a key first step in the political transition after Islamist President Mohammed Morsi was ousted in July. Interim Prime Minister Hazem Beblawi has described the referendum as a ‘critical moment’ for the country. The report says a committee of 50 members, few of whom are Islamists, began work in September on amending the constitution that was pushed through by Morsi. Another BBC News report says parliamentary and presidential elections are expected to follow after the constitution is passed. First BBC News report Second BBC News report Meanwhile, Egyptian prosecutors questioned a former lawmaker close to the Muslim Brotherhood over claims he incited protesters to torture an alleged government agent during the 2011 uprising. According to a report on the News24 site, Mahmoud El-Khodeiry, who is also a former Appeals Court judge, has been arrested in Egypt's second city of Alexandria. The report notes that he was questioned over allegations he ‘incited protesters to torture a lawyer in (Cairo's) Tahrir Square whom he accused of being a state security officer’. The incident happened during the mass protests that led to the overthrow of veteran strongman Hosni Mubarak, the report states. Full report on the News24 site A court in Egypt has sentenced 21 female supporters of Morsi to 11 years in prison. BBC News reports that they were found guilty of multiple charges, including belonging to a terrorist group, obstructing traffic, sabotage and using force at a protest in the city of Alexandria last month.Seven are under 18 years of age and will be sent to a juvenile prison, the report notes. It says the court also sentenced six Muslim Brotherhood leaders to 15 years in prison for inciting the protest. One report said the men had been tried in absentia. Security forces subsequently fired teargas bombs to disperse a student's protest set in support of the suspects. Clashes erupted between the security forces and the students shortly after they gathered to demonstrate near a university complex in Egypt's second city. A report on the allAfrica.com site notes that a great number of students withdrew membership from the student union of Alexandria University to voice objection to the verdict issued against the women. Full BBC News report  Full report on the allAfrica.com site Police yesterday (Sunday) used heavy tear gas to clear hundreds of Morsi supporters from Cairo's famed Tahrir Square shortly after they took over the plaza. A report on the News24 site says this was the first time in more than a year that Islamists entered the central square in significant numbers. The location has been the near-exclusive domain of liberal and secular protesters since shortly after now-deposed Morsi took office in June 2012. Police acted swiftly and appeared to surprise protesters, who quickly dispersed and took refuge in side streets. Full report on the News24 site Police have also arrested a prominent activist accused of calling for protests in defiance of a new law restricting demonstrations. BBC News reports that Alaa Abdul Fattah took part in a rally outside the upper house of parliament last Tuesday. Protesters were calling for the repeal of a new law that bans unauthorised demonstrations, according to the report which says Abdul Fattah played a leading role in the 2011 revolt against Hosni Mubarak. The report notes that the pro-democracy campaigner was previously detained under Mubarak’s government and questioned over demonstrations against the Muslim Brotherhood earlier this year. His father, prominent lawyer Ahmed Seif al-Islam, said his son's wife was beaten during the raid and that laptop computers were removed from the house, according to the report. Full BBC News report Algeria: Nine charged over football violence An Algerian court has charged nine people over football violence that erupted last month when supporters of rival clubs foug