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TABLE OF CONTENTS
6
Russian Sanctions Requier Regular Risk Review
Ramaposa Signs 3 new GBV Laws In South Africa
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What Is The Hague Known For?
8 Facinating Cases & Legal Ideas...
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Civil Law Disputes ... get a great lawyer ... Louis Caselaw ...
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RUSSIAN
SANCTIONS REQUIRE REGULAR RISK REVIEWS
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T
he swift escalation of sanctions against Russia is affecting a growing number of businesses, who must reassess their risk, examine the evolving regulations, and consider force majeure provisions.
T
he United Kingdom, European Union and the United States have taken coordinated action against Russia in the wake of its encroachment into Ukraine. The regulations allow for the freezing of monies and resources belonging to people or entities implicated in threatening the borders, sovereignty and independence of Ukraine, or who derive any benefit from or support the Russian government. “This
is very different from other previous sanctions over the past decades in their severity, their implementation in tandem especially with the EU, UK and multiple other jurisdictions, and coordination in imposing concerted export control restrictions,” explains
Arnold & Porter partner Soo-Mi Rhee.
G
ibson, Dunn & Crutcher partner Adam Smith agrees: “The timing,
implementation and aggressiveness make this round of sanctions significantly more robust than what we saw in 2014 following the Crimea annexation – both in tightening existing restrictions such as in the financial sector, but also in new restrictions regarding oligarchs and certain oil issues that weren’t touched in 2014.”
THE EU AND POST-BREXIT UK
T
European Union on behalf of all member states imposed measures for Russia’s annexation of Crimea. Following the Brexit vote, the UK enacted its sanctions and anti-money laundering (AML) measures such as the Sanctions and Anti-Money Laundering Act 2018, and also imposed unilateral sanctions.
A
ccording to London-based Ropes & Gray associate Andris Ivanovs there remain more similarities than differences between the regimes: “The set of
statutory instruments that came into effect carried over the existing EU sanctions, including those related to Russia, into UK law,” he says, with the latest sanctions being amendments to those existing laws.
I
vanovs has observed a sharp and significant rise in numbers of prominent Russian business figures such as Roman Abramovich, becoming a ‘designated person’ or subject to sanctions, creating difficulties for businesses that either operate in or have touchpoints to Russia:
“An asset freeze prohibits dealing in the funds or economic resources of the designated person or making funds or economic resources directly or indirectly available to the designated person. Under the UK statutory ownership and control tests, non-listed entities that are majority-owned or controlled by designated persons are also subject to the asset freeze. This can create business and compliance challenges for dealing with counterparties in Russia or elsewhere if they are owned or managed by designated persons.”
he United Kingdom has had a Russian sanctions regime since 2014 when the PAGE 7
T
here has been unprecedented targeting of the financial sector also, such as the designation of Russia’s second-largest bank VTB, which will affect the ability to make payments there, be they to employees, counterparty suppliers or otherwise. The capital markets have also not escaped, as prohibitions have been expanded to cover new credit or debt to companies in Russia.
THE US APPROACH
E
nforcement of financial sanctions is performed by the UK Treasury’s Office of Financial Sanctions Implementation (OFSI), while trade sanctions fall under the remit of Her Majesty’s Revenue and Customs (HMRC) and Crown Prosecution Service (CPS).
O
FSI has reported only six enforcement actions since 2019 to date, a remarkably low figure compared to the US Treasury Department’s Office of Foreign Assets Control (OFAC) which concluded 20 such actions in 2021 alone.
“There is a serious question about the effectiveness of OFSI promoting compliance without publicised and dissuasive enforcement practice and track-record,” says Ivanovs.
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T
he US has a similar multi-agency approach, with trade sanctions administered by OFAC, and export control by the Department of Commerce’s Bureau of Industry and Security (BIS). Additionally the Department of Justice (DoJ) last week established a multi-agency task force ‘KleptoCapture’, “sending a strong signal” according to Rhee, who agrees the speed and severity of the measures is unusual.
T
he 2014 Crimea incursion also garnered a sanctions response from the US imposing limitations on transactions with Russia, but they were far more limited in scope compared to those in recent weeks.
S
eoul and Washington, DC-based Rhee explains: “In the past, the
government would let sanctions measures kick in, and issue general licences allowing for winding down and allowing people to adjust their business to come into compliance; but it reflects the administration’s
intent that they want control measures to be strongly enforced immediately, and expresses intolerance for noncompliance.”
O
n Tuesday (8 March) President Biden also issued an executive order essentially banning the importation of crude oil and petroleum products originating from Russia and forbidding new investment in its energy industry.
T
here have also been greater restrictions on companies in the US, and globally regarding US-controlled items being sent to Russia, with the Secretary of Commerce Gina Raimundo speaking of strong penalties for breaches including withdrawal of US technology or facilities required to manufacture the said items and even placing offending companies on a restricted entity list, which Rhee considers “much
more severe than serving a penalty on a company, as it limits access to US goods and technology”.
S
he believes it to be highly likely in the current tense atmosphere that the US government will initiate investigations of potential sanctions violations, but
“whether we would know about them publicly is doubtful, as most enforcement actions are non-public
until there is a public resolution. The formation of the KleptoCapture task force and the other resources that have been made available suggests the government will be vigilant”.
MANAGING THE SITUATION
S
ome attention-grabbing enforcement has taken place in Europe in recent PAGE 9
days, with private yachts and aircraft being seized in France and Italy, and a transatlantic task force taking shape, observes Smith: “Everyone recognises
that enforcement will be critical, especially if the sanctions are going to bite going forward.” “Business leaders considering their Russia business are facing a ‘toxic stew’ of moral concerns, political tension, and shareholder activism, let alone concerns about their bottom lines” he notes, predicting that force majeure, impossibility and illegality will be argued extensively about commercial contracts in the coming weeks and months.
W
hile the pace of change is challenging, he describes the new sanctions conversely as “fairly straightforward
as the restrictions in place are listbased – so long as you are up to date on who the targets are”.
I
vanovs strongly suggests businesses operating in Russia take stock of the situation if they have not already: “This
is the moment to consider not only the permissibility of continuing business under current sanctions but also the viability and suitability of that business,” he says while observing
increasing ‘self-sanctioning’ by companies on account of the conflict, as well as closer scrutiny of the economic rationale.
H
e recommends a dispassionate evaluation of rights under existing contracts and applicable laws, which could provide for contract termination under force majeure provisions or in the event that counterparties face direct sanctions.
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“It highlights the importance of due diligence and strong contractual protections that would allow a business to walk away in the event of sanctions making the performance of a contract challenging.”
US
export control regulations now cover a widening list of foreignmade items, and Rhee strongly advises that non-US companies not delay in reevaluating whether they are caught by the new rules, “especially if they rely
on US technology to manufacture items”, and that they “conduct extra due diligence to ensure parties are not diverting goods to Russia”. “In the past, everyone thought the US’ sanctions and export control were most stringent, and by complying with such US laws, they would generally be in compliance with other jurisdictions’ laws; but this is not the case now as everything has been implemented in tandem albeit with slight differences, so it is incumbent on businesses to look at all the applicable sanctions and export controls and their differences,” she
adds.
A
ll of this underlines the importance of staying current with the rapidly evolving circumstances: “Sanctions
are being rolled out daily, so every company should make resources available to continually monitor the situation - what I say today might be very different from yesterday,” Rhee
concludes.
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Ramaphosa signs 3 new GBV laws in South Africa
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P
resident Cyril Ramaphosa has signed into law three new pieces of legislation aimed at strengthening efforts to end gender-based violence and crime in South Africa.The laws aim to change the landscape in terms of how government departments, law enforcement, and the courts deal with cases of violent crime in South Africa – especially violence against women and the vulnerable.
“The enactment of legislation that protects victims of abuse and makes it more difficult for perpetrators to escape justice is a major step forward in our efforts against this epidemic and in placing the rights and needs of victims at the centre of our interventions,” Ramaphosa said. “This legislation demonstrates democracy at work. Civil society’s demands from the gates of Parliament were heard and listened to, and gave rise to our nation reaching a point where the demands of citizens are now cast in our law.”
The Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill The bill amends Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act to: • Expand the scope of the National Register for Sex Offenders (NRSO) to include the particulars of all sex offenders and not only sex offenders against children and persons who are mentally disabled; • Expand the list of persons who are to be protected to include other vulnerable persons, namely, certain young women, persons with physical, mental or intellectual disabilities and persons over 60 years of age who, for example, receive community-based care and support services; • Increase the periods for which a sex offender’s particulars must remain on the NRSO before they can be removed from the Register to 20 years. The bill’s prime goal is to improve the country’s prevention of sex crimes, particularly of paedophilia. It also proposes to expand the ambit of the crime of incest and introduces a new offence of sexual intimidation.
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The Criminal and Related Matters Amendment Bill • The Criminal and Related Matters Amendment Bill aims to address Gender-Based Violence and offences committed against vulnerable persons and provides for additional procedures to reduce secondary victimisation of vulnerable persons in court proceedings. • This includes the giving of evidence through intermediaries in proceedings other than criminal proceedings. • The new law also expands the circumstances in which a complainant can give evidence through an intermediary and provides for evidence to be given through audio-visual links in proceedings other than criminal proceedings. • This legislation also tightens bail and minimum sentencing provisions in the context of Gender-Based Violence.
The Domestic Violence Amendment Bill • The amended legislation includes new definitions, such as ‘controlling behaviour’ and ‘COERCIVE BEHAVIOUR’, and expands existing definitions, such as “DOMESTIC VIOLENCE”, to include spiritual abuse, elder abuse, coercive behaviour, controlling behaviour, and/or exposing/subjecting children to certain of listed behaviours. • The bill also introduces online applications for protection orders against acts of domestic violence and imposes obligations on functionaries in the Departments of Health and Social Development to provide certain services to victims of domestic violence.
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What is The Hague known for?
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Peace Palace PAGE 21
Where is The Hague located? How did The Hague get its name? When did The Hague become the administrative capital of the Netherlands?
A commercial district grew up around the Binnenhof in the 13th and 14th centuries, and it survives on shopping streets such as Venestraat, Spuistraat, Gravenstraat, and Hoogstraat. In the 16th century Holland became the chief centre of Dutch resistance to Spanish Habsburg rule, and in 1559 William I, stadtholder of the Netherlands, made The Hague his capital.
The Hague, Dutch ’s-Gravenhage or Den Haag, French La Haye, the seat of government of the Netherlands. It is situated on a coastal plain, with the city centre just inland from the North Sea. The Hague is the administrative capital of the country and the home of the court and government, though Amsterdam is the official capital. The Hague The Hague, Netherlands. Andrew Images
Ward—Life
File/Getty
The city’s name recalls the hunting lodge of the counts of Holland, which was located in a woodland area called Haghe, or “hedge” (whence ’s-Gravenhage, “the counts’ private enclosure”). Count William II built a castle there in 1248, around which several buildings came to be clustered, and these became the principal residence of the counts of Holland. These buildings now form the Binnenhof (“Inner Courtyard”) in the old quarter of the city. Among the great halls around this courtyard are the Ridderzaal (Knight’s Hall; c. 1280) and the Armistice or Truce Hall, designed by Daniel Marot in 1697. An artificial lake, the Hofvijver, just to the north of the Binnenhof, was dug about 1350 and still forms one of the many attractions of the city.
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About 1585 the States-General, along with other bodies of the Dutch Republic’s central government, established themselves in the Binnenhof. William’s son, Prince Maurice of Orange, soon took up residence in The Hague, and at his initiative in 1616, a web of canals was constructed around the city that continued to define its borders to the mid19th century. Around this time, imposing aristocratic mansions were constructed on the eastern side of the Binnenhof. To the southeast grew the Spui (craftsmen’s district) and small inner harbours and to the west the Prinsegracht (home to the wealthy middle class), which was connected to the horticultural area of the Westland by the Loosduinse canal. The Hague
Shoppers walking along Venestraat, The Hague.
of Scheveningen, Rijswijk, Voorburg, and other adjoining municipalities.
© Siraanamwong/Dreamstime.com
There is little heavy industry in The Hague, which is a centre of government and corporate administration. The StatesGeneral (parliament) meets in the Knights’ Hall, and government departments and foreign embassies occupy other buildings in the old quarter of the city. Most of the city’s business firms are engaged in trade, banking, insurance, or other services. Several large oil companies also have their international headquarters in the city. The Hague is also a leading centre for international conferences. The city’s industries include printing and publishing, electronics, food processing, and the production of ceramics, furniture, glass, and various luxury consumer items.
In the 17th century, when the Dutch Republic played a leading role in Europe, The Hague became a centre of diplomatic negotiation. From 1795 to 1808 The Hague served as the capital of the French-controlled republic of Holland, and, with liberation from the French, the city alternated with Brussels as the meeting place of the States-General of the enlarged Kingdom of the Netherlands from 1815 to 1830. After 1850, when the revenues from the Dutch East Indies started to pour in, the city prospered, and many of the older canals were filled in to allow for development. As a result of the international conferences (Hague Convention) held there in 1899 and 1907, The Hague became a permanent centre of international law. After a long sojourn in Amsterdam, the Dutch central government returned to The Hague in 1913. The city expanded rapidly in the early 20th century, with growth being characterized by broad avenues, parks, and public gardens. In the north, the Benoordenhout quarter was built, and the fine residential park district of Marlot was constructed near Wassenaar. In the southwest the Zuiderpark districts were laid out, containing many blocks of residential flats. Along the dunes, in the west and near the Laan van Meerdervoort and Loosduinseweg small villas were built, and middle-class housing was constructed in the Bomen- en Bloemenbuurt and the Fruit Quarter. These new districts linked The Hague with the popular seaside resort
European Patent Office European Patent Office in The Hague. Metatron The Binnenhof is surrounded by buildings dating from the 15th to the 18th century. Among these historical landmarks is the Great Church of St. Jacob (Jacobskerk; 1399), which has a hexagonal tower and a richly decorated late Gothic choir, as well as the largest carillon in the Netherlands; the Protestant New Church (1654); the royal PAGE 23
palace on the Noordeinde (16th century); the royal palace known as the House in the Wood (Huis ten Bosch; 1645–47); and the old Renaissance-style town hall (1564), which was subsequently enlarged several times.
palace, Huis ten Bosch, dates from 1640 and was designed by Pieter Post and Jacob van Campen. It has a beautiful hall with a domed roof. The Hague Noordeinde Palace, The Hague. Patrick Rasenberg
House in the Wood House in the Wood, The Hague; designed by Pieter Post and Jacob van Campen. Erik Baas South of the Binnenhof is the Buitenhof, a centre of the town’s activities and the site of several hotels and restaurants. The original entrance to it was the Gevangenpoort (Prisoner’s Gate), a tower and gate built about 1400. It is now a museum dedicated to the history of punishment and torture in the Netherlands. Just north of the Binnenhof lies the Hofvijver (Court Pond), a rectangular artificial pond with a small island in the centre. Close by is the Old Catholic Church (1722), which has a beautiful Baroque interior. The Hague is home to two residences of the Dutch royal family. The Noordeinde Palace was first built in the 16th century. The other royal PAGE 24
To the north, the Permanent Court of Arbitration and the United Nations’ International Court of Justice is housed in the Peace Palace, an imposing building that was completed in 1913 with an endowment from the American industrialist Andrew Carnegie. Among the city’s more striking modern buildings are the headquarters of the Royal Dutch/Shell Group (1941), the KLM (Royal Dutch Airlines) building (1949), the United States Embassy (1959), Dr Anton Philips Hall (1987), a concert venue, and the headquarters of the International Criminal Court (2015).
Permanent Court of Arbitration Members of the Permanent Court of Arbitration, established at The Hague in 1899 to settle international disputes by judicial means. Library of Congress, Washington, D.C.
International Criminal Court Headquarters of the International Criminal Court, The Hague.
Dutch school. Other notable museums are the Mesdag Museum, the Mesdag Panorama, the Municipal Museum, and the Museum for Communication. The Royal Library, established in 1798, has the most important collection of old books and manuscripts in the country. There are several art academies, and musical life is dominated by The Hague Philharmonic
orchestra. The city also has some notable parks and recreation areas. It has excellent road and rail connections with Rotterdam, Amsterdam, and Utrecht. Pop. (2017 est.) 524,882.
© aniel127001/Dreamstime.com The numerous museums in the city comprise a wide range of collections. The Royal Picture Gallery, housed in the famous building known as the Mauritshuis (1633– 44), has a remarkable collection of the works of the Dutch masters: Rembrandt, Johannes Vermeer, Jan Steen, and others. The Bredius Museum (1645) also has a fine collection of old paintings of the
“There are several art academies, and musical life is dominated by The Hague Philharmonic orchestra.” PAGE 25
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8 PAGE 28
Fascina
and Le
the Law
ating Cases
egal Ideas for
w Enthusiast
About the Author Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course PAGE 29
THIS IS JUST A SPRINKLING OF LEGAL CASES WHICH SHOULD BE ACCESSIBLE TO ANYBODY, WHETHER YOU’RE THINKING ABOUT LAW AS A POTENTIAL SUBJECT OR JUST WANT A BRAIN WORKOUT!
prepared a syringe of heroin for the victim who voluntarily injected himself, and then died afterwards. The defendant was found not guilty of unlawful act manslaughter because of the victim’s free and informed decision to take the heroin.
Some introduce you to an area of law, whereas others go into specific rules, but hopefully they all raise questions which are worth thinking about. There’s one common theme throughout them, though, which is a common theme throughout legal study – what makes us treat very similar circumstances differently, and how do we know where to draw the line between them? These summaries are brief and only intended to introduce you to concepts, not to be a definitive account of cases for revision or application purposes. There is unfortunately never an alternative to doing the legwork yourself!
1
Taking your victim as you find them.
A victim’s choice to refuse medical care is insufficient to exonerate her killer. R v Blaue [1975] 1 WLR 1411 In criminal law, the illegal act of the defendant must have caused the victim’s injury or death without anything ‘breaking the chain of causation’. One way to break this chain is with a new and voluntary act of the victim or a third party which becomes the main cause of injury or death – a novus actus interveniens. This was the decision in R v Kennedy [2007] UKHL 38. The defendant PAGE 30
R v Blaue is interesting because the ‘act’ of the victim was to refuse the blood transfusion she would normally have received for stab wounds, because her religion forbade it. This refusal caused her to die from her wounds, when she would have survived. Did this mean she caused her own death by refusing medical care? The judge said that those “who use violence on others must take their victims as they find them”, meaning the defendant could not complain that an important part of the victim’s identity (her religion) meant that the injury affected her more than it would other people because she would not be treated. The stabbing was still an operative cause of her death so he was found guilty. The case protects the freedom of religion of the victim here. If the victim’s decision had been found to be a novus actus interveniens then the law would in a way would be blaming the victim’s moral beliefs and decisions, by saying they caused her death. What beliefs do we consider
important enough in this area? What if the victim refused a transfusion because she firmly believed that doctors were evil? Or was petrified of hospitals? Should the defendant take the victim ‘as he finds her’ in this case?
2
The duty to take care not to harm your ‘neighbours’
The ‘neighbour principle’ means you shouldn’t be finding one of these in your drink. Donoghue v Stevenson [1932] AC 562 Tort law covers areas where somebody’s ‘wrong’ causes loss to another person, without the two parties having to be in a contractual relationship. The name comes from the fact that tort is French for ‘wrong’ – this is the law of wrongs. The big case which expanded this area of the law is also a strange one.
in negligence, a part of tort law, saying that the bottle manufacturer had a duty to make sure that the ginger beer was made in a clean place where snails could not get into the bottles. This is where Lord Atkin set out the famous ‘neighbour principle’: I have a duty towards “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question”. This sounds like you have to think about the possible impact of everything you do on anybody it could affect, but in reality there are many limits on negligence law – including that you have to breach that duty of care. Lots of things are relevant to breach but it is overall about how reasonable the action (or decision not to act) was. One element is quite interesting though, especially for those of you who are about to start learning to drive… Learner driver?
3
Better learn quickly! The duty of care in negligence law
Even this learner driver has a duty to be careful and competent.
Mrs Donoghue was in a café with her friend, who bought her a ginger beer. She was ill after having drunk some of it because the bottle had a dead snail in it! However, she had not bought the bottle so she could not sue for breach of contract — she had no contract with the shop owner or the bottle manufacturer. Instead, she brought a case
Nettleship v Weston [1971] 2 QB 691 A learner driver injured her instructor when they were involved in a car accident. The instructor tried to claim against the driver in negligence, but the question was what the ‘standard of care’ was that the learner driver had to breach – do we expect learner drivers to be as careful as experienced ones? The Court of Appeal said yes: the duty of care was that of a competent and prudent PAGE 31
driver (that’s somebody who can drive and drives carefully), and because Mrs Weston had been driving below this standard she had to pay him money (damages) to cover his loss. She was covered by insurance anyway, so the decision just made sure the teacher received some money whilst he could not work.
This is interesting for anyone who is starting out in a profession, or doing an activity for the first time – you only get better with practice, so does it seem unfair to expect you to be at the level of a careful and competent person doing that activity the first time around? It’s probably important that there was insurance available in this case — if there is no insurance available the person who causes the harm often is not worth suing anyway. And in any case, if the claimant understood there was a risk of injury the defence of consent (volenti) may be available, so this isn’t as harsh a decision as it first sounds. The decision does show how the courts develop tort law with half an eye on policy considerations and the ‘real life’ situation, though — whilst Mrs Weston wasn’t really at fault this result only affected her insurance premium.
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4
Can you own parts of your own body? Should you be able to?
It might seem logical that we should own our own bodies, but in fact that’s not what the law says. Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37 The law has historically refused to say that anyone owns their own body. If you can own your body you can sell it, including selling organs, prostitution or selling yourself into slavery. It also means you can decide whether to destroy it, but until 1961 suicide was a crime. Obviously this was more important for prosecuting those planning or encouraging suicide, which is still illegal, or attempted suicide, than for trying to prosecute people who had succeeded in killing themselves!
However, this rule has been tested by changes in medicine which now mean that we may want to be able to say that (former) parts of our body are our ‘property’. The claimants in Yearworth had deposited semen samples with a clinic before undergoing chemotherapy for cancer, having been told that the therapy could make them infertile. The hospital did not store the samples with enough care and they were damaged, and
the men in the case suffered psychiatric injury when they discovered they now could not have children. The problem was that because the semen was no longer part of their body they could not bring a claim for personal injury, but the law would not have called bodily fluids personal property for the reasons set out above. However, the court did decide that the semen samples were personal property because of the control the men had over it – they were the ones who could decide what to do with it, despite some limitations set by the Human Fertilisation and Embryo Act 1990, and so the relationship had most of the hallmarks of ownership. The claimants could therefore claim for the psychiatric damage which resulted from the negligent damage of their property. This case seems like the right decision on the facts, but it opens a whole area of law which has normally been tightly closed. Can you think of similar cases where we might be less comfortable with such an outcome? And how should the courts decide where to draw the line? Is your kidney your property if you’re donating it to a friend, and the doctors damage it and you suffer mental distress because your friend can’t have a transplant? What if you change your mind about saving your friend and decide to sell it? What’s the difference?
5
Is a Stormtrooper helmet a work of art?
It turns out this is not sculpture. Lucasfilm v Ainsworth [2011] UKSC 39 Copyright grants a monopoly over the
reproduction of (mostly artistic) works for up to 70 years after the death of an author. That’s why the cheap editions of books only ever cover old works; once the copyright runs out then anybody can make copies, and because you don’t need to pay the author the costs of production are lower so the price goes down. There is also what is known as a ‘design right’ in the designs of functional products (like kettles or toasters) which is limited to 10 or 15 years after creation. This means that the protection of something against copying without the right-owner’s permission can vary a lot depending on whether it is a functional item covered by design rights, or an artistic one protected by copyright.
In Lucasfilm v Ainsworth the man who designed the Stormtrooper helmets for Lucasfilm to be used in the Star Wars films had begun to reproduce and sell them worldwide without their permission. Had Lucasfilm been able to show that the helmet was a “sculpture” under the Copyright, Designs and Patents Act 1988 and that they owned the copyright in it they would have PAGE 33
been able to claim money from Mr Ainsworth for the sale of those helmets already sold, and prevented him from making any more. However, the UK Supreme Court decided that helmets made for use in a film, even Stormtrooper ones which are more artistic than (say) a replica of a real battle helmet, are not “sculptures” under the Act because their use is functional instead of artistic. The design right protection in the sculptures had ended so Mr Ainsworth was free to continue making and selling them. This was great news for Mr Ainsworth. However, is it fair to say that something created for the purpose of being in a film is never a sculpture or work of art in its own right? The shorter protection period prevents creators of such works and the producers of the films from controlling reproduction of items which were created for the film and might have helped to make back a lot of the money put into it – think of the cost of replicas you buy in gift shops at amusement parks! Do we think a Stormtrooper helmet is ‘artistic’ enough to be a sculpture? Is Gandalf’s staff, or the Tardis? Do we think they deserve to be protected from copying without permission or a licence for over 70 years, the same as a painting? This case is also important for understanding how important it is that legislation is clear on what it intends to achieve, and that judges interpret it clearly. Had Mr Ainsworth lost his case, Lucasfilm were making a claim for around £20million, but the legislation says very little about what makes ‘a sculpture’ so the judges have to develop their own tests for what one is. “In accordance with the law” — prosecuting guidelines and PAGE 34
assisted suicide
6
Assisted suicide is legal in Switzerland,
leading to cases of ‘suicide tourism’.
Purdy v DPP (2009) UKHL 45 Mrs Purdy lives in England and has multiple sclerosis, a degenerative disease which affects your muscle movement, vision and balance. She had decided that one day her life will become unbearable and that she will want to go to Switzerland to end it, where this is legal under certain circumstances. If she did this relatively soon then she would be able to end her own life, but if she were to wait longer then her husband would have to help her and she was concerned that he would be prosecuted for assisted suicide when he returned to the UK. This has not however been prosecuted before in similar circumstances, and Mrs Purdy asked the Director of Public Prosecutions (DPP) for guidance as to what factors the Prosecution Service would use in deciding whether to prosecute her husband. The DPP refused to publish guidance and she brought a claim that this was incompatible with her Article 8 right to a private life under the Human Rights Act. This cannot be interfered with except ‘in accordance with
law’ and where necessary in a democratic society, but Mrs Purdy’s decision on when to take her life was being affected by the uncertainty of what would happen to her husband if he went with her to Switzerland – there was no clear law on the matter because she didn’t know the sentencing guidelines. The House of Lords agreed and sentencing guidelines have now been issued on the matter. There’s something really important to be noticed about this – human rights claims can be as much about procedure as about the actual law. Mrs Purdy wasn’t asking for the law to say one thing or another, but to know how the law would be enforced. This uncertainty was having a huge impact on major decisions about her life, and by refusing to issue guidelines the DPP was asking her to decide between taking her life before she felt it was necessary, or risking the imprisonment of her husband. The State can have a huge impact on our private lives in the least obvious way – you would think the law on this area is clear but the prosecuting guidelines are as important as the statute.
Mr Griggs’s complaint was that the company he worked for required a high school diploma and a certain result in an IQ test in order to work in its higher-paid department, when neither a high IQ nor a diploma were necessary in order to be able to do the job well. The company had also included a rule that black people could not work in the better paid department, but that was removed when the Civil Rights Act made such clauses illegal. The two remaining requirements did still however in practice prevent black people from moving into the roles, because they were much less likely to have passed their high school diploma.
‘Scene at the Signing of the Constitution of the United States’ by Howard Chandler Christy.
The Supreme Court applied Title VII of the Civil Rights Act, which said that if such a test has a ‘disparate impact’ on a particular minority group the employer had to prove that it was related to the job and ‘consistent with business necessity’. It concluded that this was not the case here and the requirements had to be removed.
Griggs v Duke Power Co 401 U.S. 424 (1971) This American Supreme Court Case on discrimination has had an influence worldwide and really makes you think about how a requirement, even if not outwardly discriminatory, may have that effect.
This is known as indirect discrimination – a company may not outwardly refuse to employ members of a particular minority group, for instance, or try to impact them more with a policy, but their policies or job requirements may have that effect.
7
Indirect discrimination – think about your impact!
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Examples include companies which will not (but reasonably could) allow flexible working so that Muslims can go home for prayers on Fridays, or which pay part-time workers less per hour – more women work part-time so the impact will disproportionately be on women. Indirect discrimination is subject to a defence in the UK so there is always the possibility of justifying a practice that affects one minority group more than another, but it is a very useful tool for going beyond the obvious discriminatory statements which have almost completely disappeared nowadays.
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“Sorry officer, I didn’t mean it” — mens rea and actus reus in criminal law
Assaulting a police officer is treated more harshly than common assault, even if the defendant is unaware the person being assaulted is a police officer. Fagan v Metropolitan Police Commissioner [1969] 1 QB 439. Mr
Fagan, the defendant, was asked to move his car by a police officer. He reversed his car as told, but accidentally drove onto the officer’s foot. When the officer told him to get off his foot, Mr Fagan told him to wait, and refused to move. He was convicted of assaulting a constable in execution of his duties, but complained that the two necessary elements of the offence – the act (actus reus) and mental state (mens rea, or guilty mind) – had not happened at the same time. When he drove onto the officer’s foot he did not intend to harm him, and at the point where he did intend to continue doing him harm he only omitted
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(failed) to move his car off the officer’s foot. In criminal law the two elements have to happen at the same time, so he argued that he should not be convicted.
This cunning submission however did not work. The court said that driving onto the officer’s foot and staying there was one long battery (unlawful touching of another), so that when he began intending to continue hurting the officer he was still performing the actus reus. Mr Fagan was therefore convicted of assault. Normally an omission is not an actus reus, apart from in certain circumstances such as gross negligence manslaughter, so it is interesting how the court managed to decide this was one long act rather than an act followed by an omission to correct the situation.
“
Sorry officer, I didn’t mean it”
RULE 46A AND JURISDICTION OF CON COURT Baloyi NO v Pawn Stars CC [2022] ZACC 10 Mr and Mrs Baloyi, acting on behalf of a Trust, entered into a loan agreement with Pawn Stars and borrowed R870,000. After failures to make payments, Pawn Stars obtained default judgment. The applicants then applied to rescind the order and after deliberation between the parties, a consent order was granted. Its terms provided that should there be default of payments, a property owned by the trust at which the Baloyis reside with their minor children, would become specially executable and a warrant of execution for the property could be issued. The applicants contend that the issue for determination is whether the consent order contravenes the provisions of Rule 46A of the Uniform Rules of Court. That rule requires judicial oversight, and consideration, by a court, of various factors, when a creditor seeks to execute against the residential immovable property of a judgment debtor. The applicants contend that the consent order was impermissibly granted without application of Rule 46A because the High Court erroneously assumed that it does not apply to property owned by juristic persons or trusts. Theron J discusses the applicants’ contention that that the application requires a determination of whether Rule 46A applies in respect of property owned by a juristic person or trust and that this is a constitutional issue which engages the jurisdiction of the Constitutional Court. The court finds that the applicants pegged their jurisdictional case entirely on the Rule 46A issue and have thus failed to establish that the court’s jurisdiction is engaged. The application for leave to appeal must therefore be dismissed. See paras [21]-[24].
http://www.saflii.org/za/cases/ZACC/2022/10.html PAGE 37
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Civil law disputes Get yourself a great attorney! Provided by Legal&Tax Why Legal&Tax exists We provide our members
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Attorneys practicing civil law must have a broad knowledge of the law and be superb litigators. Great civil litigation attorneys are as rare as hen’s teeth. Choosing yours is a critical and difficult decision, one likely to influence the outcome of your case. With Legal&Tax, you will speak to an experienced legal advisor immediately (no long wait for an appointment). Your dedicated legal advisor will assess your case, answer your questions and plan an effective strategy. If your case goes to Court, Legal&Tax will assign a Specialist Civil Law Attorney from our handpicked panel to represent you. We negotiate significantly discounted rates with our panel of attorneys giving you access to high-level yet affordable attorneys. Once you are in the hands of your panel attorney, we continue to monitor your case to ensure a high level of service.
Choosing the experts By choosing Legal&Tax as your Legal Expenses Service Provider, like hundreds of thousands of members since 1996 have done, you are guaranteed legal services of the highest order. Legal&Tax is your companion in law – helping you through civil law disputes and other legal matters. Contact us for expert legal advice and representation to be sure your matter is in good hands.
The sources of civil law in South Africa The term “civil law” refers to many legal fields. At its broadest, it refers to all areas of law except criminal law. The main areas usually referred to as civil law are contractual matters, business disputes, company law, property disputes and personal injury cases. It would take a thesis to describe the sources of South African civil law entirely – such is its complexity. We will, therefore, provide just a glimpse of this interesting mix of sources.
Mixed system of law South Africa has what is a called a ‘mixed’ system of law, it is made up of a number of legal systems. It has a civil law system from the Dutch, a common law system from the British, and several types of customary law systems from indigenous populations. These systems tend to be more dominant in specific areas of the law. Thus, English law is the primary influence over criminal and civil procedure, company law, constitutional law, and the law of evidence; while Roman-Dutch law is followed PAGE 42
in contract law, law of delict, law of persons, law of things and family law. With the institution of the Constitution in 1997, the picture becomes even more complicated.
Final word As can be seen, unravelling the sources of our civil law is a complicated exercise, best left perhaps, to academics. When you have a serious legal problem, it is anything but academic to you. With Legal&Tax, you can depend on our handpicked attorneys to find a practical and favourable solution to your legal difficulty. Frequently asked questions about civil law
What is civil law? The term “civil law” refers to a variety of legal fields. At its broadest, civil law refers to all areas of law except criminal law. But the main areas usually referred to as civil law are contractual matters, business disputes, company law, property disputes, and personal injury cases.
What is the difference between attorneys and advocates? Advocates are court specialists. Their primary function is going to court to argue cases. Another central role of an advocate is providing written legal opinions to attorneys. While an attorney may appear in court, this is not his/her primary function. An attorney drafts wills, agreements, contracts, and letters to other attorneys. Attorneys are involved in litigation, but usually in support of the advocate. Contrary to popular belief, an advocate is not more qualified than an attorney.
How costly is it to sue someone in the High Court? Very. An opposed High Court trial will cost a minimum of R100 000, going up to several million Rands, depending on the length of the trial. Does the loser in a case have to pay the winner’s legal costs? Generally, the rule is that the loser pays the winner’s costs. These costs are based on certain scales. The victorious party will not get back all his/her actual costs.
What is defamation? Defamation occurs where someone intentionally publishes a statement about you that damages your good name and reputation. The defamatory comment does not have to be in writing; a verbal statement can also be defamatory. Can you litigate without an attorney or advocate in the High Court? You can, but it is probably not a good idea. Litigation is a complicated process best left PAGE 43
to attorneys and advocates. People who attempt to litigate on their own behalf tend to stumble over the challenging procedural aspects. Furthermore, without attorneys to advise you, it is difficult to be objective, and you are likely to mishandle the case.
Is there an alternative to suing in court? Yes, there is another way, known as Alternative Dispute Resolution. This refers to Arbitration, which is a way to resolve disputes outside the courts. The dispute is decided by one or more persons, called the arbitrators. The rules applied are generally more straightforward than those used in court. The award is legally binding on both sides and enforceable in court. Costs are usually less than in the courts. Can you sue a supermarket if you slip and break your leg in the store? Yes, you can sue anyone if you injure yourself on their premises. However, you will have to prove that the accident was a result of the negligence of the property owner.
Can you sue the municipality for personal injury? Yes, if you are injured on public property, you can sue the municipality, if you can prove the accident was a result of the municipality’s negligence. Can I bring a civil claim in the Small Claims Court? Yes, you can. All claims brought in the Small Claims Court are civil claims. The most you can claim in the Small Claims Court is R15 000.
Can I use an attorney in the Small Claims Court? No, you may not be represented by an attorney or an advocate in the Small Claims Court.
What is the maximum amount I can sue for in the Magistrate’s Court? The maximum claim in the District Magistrate’s Court is R200 000. The maximum claim in the Regional Magistrate’s Court is R400 000.
Can you sue someone for breach of a verbal contract? Yes, you can. In general, a contract does not have to in writing to be valid. (Certain contracts, such as the sale of immovable property must be in writing.) The disadvantage of a verbal agreement is that it is exceedingly difficult to prove what the terms are. But in principle, such a contract is valid, and you can sue if it is breached.
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What are the most common civil cases in South Africa? Contractual disputes, property cases and personal injury claims.
WITH LEGAL&TAX YOU’RE NOT ALONE Legal&Tax Services is your companion – helping you through civil law disputes. Contact us for expert legal advice for staying on the right side of the law. Article sourced from Legal&Tax. (This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
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REFUND OF PENSION FUND CONTRIBUTIONS Municipal Employees Pension Fund v Mongwaketse [2022] ZACC 9 Ms Mongwaketse began employment with the municipality as its chief audit executive on an employment contract for a fixed term of five years. She joined the Municipal Employees Pension Fund and the contributions payable by her and the Municipality would be 7.5% and 22% respectively of her monthly pensionable emoluments. She later learned that the fund’s rules did not entitle fixed term employees to be members. The Municipality asked that she be withdrawn from the fund and that all contributions be refunded to her with interest. The fund refused and Ms Mongwaketse lodged a grievance with the Pension Fund Adjudicator. The Adjudicator found in favour of Ms Mongwaketse and ordered the fund to repay to her all contributions made in respect of her purported membership. The fund was unsuccessful in the High Court and its appeal was dismissed by the Supreme Court of Appeal, so it approached the Constitutional Court. Rogers AJ discusses the Pension Funds Act 24 of 1956; the definitions of “complainant” and “complaint”; the purported admission to membership of an ineligible member; whether such person is a “complainant” as envisaged in the Act; the Pension Fund Adjudicator and jurisdiction to grant unjustified enrichment relief; and whether a case for such relief was made out. The appeal is dismissed.
http://www.saflii.org/za/cases/ZACC/2022/9.html RULE 22 AND PIECEMEAL PLEADING Absa Bank v Meiring [2022] ZAWCHC 31 Absa instituted action against Mr Meiring for R1,1 million, being the amount still outstanding on five instalment sale agreements after a close corporation had been wound up. When the summary judgment application was called on the opposed motion roll, the defendant had not delivered a general plea incorporating the defences identified in his affidavit opposing PAGE 46
summary judgment. The application was postponed and on the resumption date the court refused summary judgment and directed that the matter proceed to trial. Binns-Ward J discusses the plea and Rule 22; whether it should be permissible for a defendant, at least in matters that could be affected by an application for summary judgment, to plead only those of its defences that can be specially pleaded and to withhold until a later stage its plea on those defences that fall to be generally pleaded; and the “Cape practice” which became an all-embracing allowance that it was not necessary for a defendant to plead over when a special plea was filed. The court concludes that Rule 22 should be interpreted to require a defendant to plead over, and that there is no scope for the continuation of the “Cape Practice”. It followed that a defendant in a summary judgment application which has failed to plead all its defences will be required to apply to amend its plea if it seeks to add any for the purposes of its opposition to summary judgment. See paras [19]-[20]
http://www.saflii.org/za/cases/ZAWCHC/2022/31.html ACCUSED FAILING TO ATTEND COURT State v Porritt [2022] SS40-06 (GJ) Porritt, who was in custody, failed to attend court for a trial hearing and it appeared that Correctional Services failed to hand him over to the police, who were responsible for transporting awaiting trial detainees between the detention centre and court. The court directed that Mr Porritt be brought to court and that certain correctional services officials attend, so that the court could determine why he was not brought to court. Spilg J discusses the reason given that Mr Porritt had a medical examination and refused to attend court; and his complaints about the transport trucks to court. The court makes clear that the accused have no discretionary power as to the operation of the court. They each are obliged to attend court; an obligation which only the court on application can relax – and not after the event. Mr Porritt is warned that the court will not hesitate to order that he be brought to appear forthwith to explain any refusal to co-operate with officials responsible for securing his attendance at court. The court will also consider investigating any delay which appears unreasonable and which could cause substantial prejudice as envisaged in terms of s 342A of the Criminal Procedure Act 51 of 1977.
https://drive.google.com/file/d/1JmTeYV8KvZj0ypTgyGyVfu2yA0mduuqu/view PAGE 47
An activist is a person who intentionally performs acts to bring about civic, cultural, economic, political, or social change. They also campaign for bringing about changes in occupational and professional functions. There are many kinds of activists. For example, an animal rights activist may work for the stoppage of the fur industry, a women’s rights activist works for the protection of woman against exploitation, a consumer rights activist works for the protection of consumer rights. Palaver is a legal activist company, and we believe that justice all over the world is broken. All people have the right to freedom, and the right to a fair trial, the right to legal representation, dignity and whatever the constitution allows people to live under. When we receive a case to review, we look at that case from all angles. We look at the Rule of Law, how the evidence was applied from both the State and the Accused. We do not take sides. We put the facts in our report with references to demonstrate those errors, inconsistencies and anything else that will assist the accused person with any further legal actions. It is then up to the accused and his legal team how they will deal with that information going forward. We highly recommend that the information not be ignored if there is clear evidence of any injustice done to the accused. PAGE 48
When we receive a case it does not mean we take it. We look at the merits first, and only then when we find that there is a possibility of irregularities or the possibility that errors are made we do the review. The review is done with only the details that were dealt with during the trial. When we assess the case we will apply the law based on the law of that land. We cross-reference everything to the judgement and court record. We will write our findings after every charge, this includes footnotes where clarity is needed. The biggest challenge we have seen with criminal cases we have reviewed is that the willingness from attorneys and counsel to assist on Probono is almost foreign. We understand that there are costs with matters that need to go to appeal or review. We always get referred either to the Law Centres at the Universities or Legal Aid. Sadly, neither of them has shown interest in offering us any assistance. Our services are not free, but we do use all the funds we get from our paying clients to assist and review cases when people do not have the finances. If we do not have the support of lawyers and advocates our efforts has no purpose. This magazine will be used to create a source to raise funds. All the advertising income will be dedicated to helping those who urgently need our help. You can help us in three ways, first, you offer us to help with cases on a Probono agreement, make financial donations to our organisation, or advertise in this magazine. PAGE 49
We also offer our services to assess documents, transcripts and evidence to prepare for court cases, appeals, petitions and any other form of legal proceeding. Our team is ready and willing to assist where we can. Should you need more information or would like to offer to assist us with clients needing your assistance please do not hesitate to contact us. We would like to establish a good working relationship to assess and then forward paying clients to all our partners and affiliates. This is a relationship we can establish going forward. Other Services we offer Administrative Services & Whistle-blowers Palaver and the team would like to thank you for taking the time to read the magazine, and we are looking forward to working with attorneys, advocates, solicitors, barristers, and any other legal professional. We further are looking forward to seeing you advertise your business in the magazine. Last, but not least... Send the magazine to anyone you know, it is free.
Regards, Jeff van Engelen Marketing Director Palaver Inc PAGE 50
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