FA
UCT Law Students’ Newsletter
Volume 4, Issue 1
CE
BO TH
OK E
IS
SU
August 2013E
HvW
Canvassed
A comprehensive
analysis of the
landmark case
Page 6
Legal Breaches in the Electoral Process in the July 2013
Zimbabwean Elections
Facebook
and Working
Facebook ‘sharing’
and how it impacts
your chances of
getting a job
Page 8
Pics on
Twitter
To the Point supplied
by ENS
Page 11
Join Altum!
Applications for the
2014 Altum Sonatur
Committee are now
officially open
Page 15
Where To
Work
A follow-up with
Muhammad Ebrahim
on doing articles at
ENS
Page 14
The
electoral
process
in
Zimbabwe’s recent election, held
st
on the 31 July 2013, breached
many provisions of the new
Zimbabwean Constitution and
1
Electoral Act . Thebreaches
include the following:
1. Illegal proclamation of the
Election
th
On the 13 June 2013, the
President proclaimed the election
date without consulting the
Cabinet,
breaching
Section
1
31H(5) of the Constitution . This
left just over six weeks to finalize
the election process, which
arguably contributed to some of
the illegalities.
2. Voter Registration
The Registrar-General of Voters
was required, under Zimbabwe
Electoral Commission (ZEC)
supervision, to conduct intensive
voter registration and voters’ roll
inspection, for at least 30 days
after
the
Constitution
was
1
published .However, registration
units were only allocated three
1
days in each location so voters
were not afforded the full 30-day
period to register and inspect
the rolls.
3. The Right to Vote
Section
155(2)
of
the
Constitution obliges the State to
ensure (a) "that all citizens are
1
registered as voters " and (b)
that all have an opportunity to
1
cast their vote . Neither were
complied with. Many were
denied the right to register and
on the day an additional 304
890 were denied the right to
1
vote .
4. Preparation of Voters’
Rolls
The
Registrar-General
of
Voters was responsible, under
ZEC’s
supervision,
for
1
compiling the voters’ rolls . The
Research Advocacy Unit’s audit
of the voters roll has revealed
that
it
was
manifestly
inaccurate for the following
reasons:
Over 1,000,000 people on
the roll were either
deceased or had left the
country.
63 constituencies had
more registered voters than
inhabitants.
5. Copies of Voters’ Rolls
ZEC must provide copies of the
rolls, in printed and electronic
form, to parties and candidates
within a reasonable time after an
1
election has been called
.
However, copies were only
provided on the evening before
1
polling day .
6. Special Voting
Special voting (i.e. early voting by
electoral officers, police officers
and members of the security
forces who were on duty on
polling day) was poorly organized
andmany who were entitled to
cast special votes were unable to
1
do so .
7. Failure to Allow Absent
Voters to Vote
Section67(3) of theConstitution
entitles every adult Zimbabwean
citizen to vote. Section 155(2)
enjoins the State to take all
appropriate measures to ensure
Continued at Page 12
Quid quid lat ine dict um si t, altum son atur
Cyberbullying
The Dark Side of Social Networking
By Belinda Hlatshwayo
Intimidation and manipulation of an
individual by another is bullying. As our
social spheres grow beyond schoolyards
and university campuses, so too do
different forms of bullying develop.
It is a sad truth that most people do not view
cyber-bullying as a pressing issue. Rather,
it is seen as a problem for the future.
Unfortunately, the future is already upon us.
According to a study conducted by UNISA,
cyber bullying grew by 40.3% between 2010
and 2012, and this method of bullying
continues to grow exponentially. With such
statistics, and over one million people
affected by it every year (according to
internetsecurity.org),
it
is
becoming
abundantly clear that more and more people
will be victimised via the Internet. As a
result, more lawyers may well be called
upon in the pursuit of recourse. Sadly, so
too will psychiatrists, pharmacists and
doctors be called upon for rehabilitation.
According to cybercrime.org.za, victims of
bullying may be plagued by low self-esteem,
fall behind in schoolwork, or suffer from
anxiety and depression.
The Cyber-bullying Research Centre has
stated that one of the factors differentiating
cyber-bullying from traditional forms of
bullying, and thus making it more brutal, is
the often unknown identity of the bully,
which creates an ominous feeling of
omnipresence. Victims can never truly face
their bullies through a computer screen, as
disgraced American football player Manti
Te’o showed the world. It was revealed by
an investigation by sports website,
Deadspin, that his online girlfriend of 2
years had never existed. The woman he
thought he had lost to leukaemia on the
same day that his grandmother passed
away, and with whom he had shared many
intimate secrets, was actually a fabrication
created by one Ronaiah Tuiasosopo. As a
result of the cruel hoax Manti Te’o is now
known not for his football talents, but as the
focal point of a host of Internet jokes and
memes that ridicule the sham that was his
relationship, e.g. men’s interest magazine,
Maxim’s, inclusion of the fake girlfriend in
their annual “Hot 100” list. The celebrity
status of the victim and the high-profile
nature of the hoax should not detract from
the truth of what Manti Te’o really is: the
victim of continued cyber-bullying.
Page 2
The embarrassment and mass ridicule
which accompany cyber-bullying sometimes
leads to grievous consequences such as
suicide. In October, 2012, Amanda Todd, a
teenage girl who, no longer able to continue
facing constant humiliation and torment at
the hands of her peers, committed suicide
after posting a video on Youtube in which
she described her victimisation. In such
cases as this, where there is more than one
bully, it proves difficult for the law to zero in
on the culprits. Before the bullying goes
viral, however, it becomes easier to identify
and prosecute Internet wrongdoers.
In United States v Lori Drew, Lori Drew was
charged with contravening the Computer Fraud
and Abuse Act after her actions, with the
assistance of accomplices, drove 13 year-old
Megan Meier to commit suicide. Drew, who was
Meier’s neighbour and the mother of one of
Meier’s classmates, posed as a teenage boy on
MySpace, allegedly in order to discover whether
Meier had been spreading falsehoods about her
daughter. The fake profile eventually began to
send Meier negative messages, which
culminated in incitement to take her life.
According to the New York Times (2008), Drew
was charged with one count of conspiracy and
three counts of accessing a computer without
authorisation and via interstate commerce to
obtain information to inflict emotional distress.
The CFAA, an anti-hacking statute, was deemed
applicable because Drew, as a user of
MySpace, had violated the terms of use by
creating a fake account for the purposes of
inflicting emotional distress. There was no
cyberbullying legislation in effect at the time.
The jury was unable to reach a unanimous
verdict on the conspiracy charge, but a judge
acquitted Drew on the other felony counts,
holding that the language of the statute was too
vague to pass constitutional muster.
As
disappointing as the outcome of the case was,
and given the expression of some American
lawyers that the CFAA was not the statute to
enforce in such a matter, light has nevertheless
been shed on the global issue of cyberbullying.
Precedent in South Africa has already been set
in a fashion. H v W, handed down in the South
Gauteng High Court early this year, established
that one could be held liable for insulting
statements made on social networking sites
such as Facebook. One would hope that though
the facts might be distinguishable from those of
a cyber-bullying case, H v W could at least
constitute persuasive case law. The excitement
caused by this case is not unfounded. Rather, it
is South African law’s way of opening up the
actio iniuriarum to internet-based disputes; an
area that largely remains like the dark side of the
moon.
The important thing is that the law has begun to
ask questions on how to solve issues of cyberbullying and online harassment, and has begun
to formulate mechanisms with which to curb this
ever-growing problem. International law has
created the first shield for victims of cyberbullying. Article 5 of the Universal Declaration of
Human Rights protects any person from torture,
cruel, inhuman or degrading treatment. The
Convention on Cybercrime, with 50 signatory
nations, aims to develop the law to curb cyber
hate crimes – of which cyber-bullying is a
component. Foreign law also continues to make
strides into curbing the problem before it
becomes rampant. America leads the field with
the highest number of legislation against cyberstalking with the Megan Meier Cyber-bullying
Prevention Act and the Tyler Clementi Higher
Education Anti-Harassment Act, as well as
several state-level acts of legislation. India has
made amendments to the Indian Penal Code to
encompass situations of cyber stalking and
bullying; and New Zealand’s Ministry of Justice
is working on a Bill that will find those who
incite others to commit suicide or post
abusive material online guilty of an offence.
Returning to South Africa, S v Grotjohn
could be used to the same effect as the
New Zealand Bill, which could see inciting
someone to commit suicide punishable by
imprisonment or a fine. The law would
apply to all forms of incitement, not merely
through the Internet, and offences would be
punishable even if suicide were not
attempted. According to the Grotjohn case,
if X incites and foresees the suicide of Y,
then X is guilty of the murder of Y. This
case has potential to bring justice to those
affected by the online crime. Beyond this,
South Africa has become the first country in
Africa to enact legislation against cyberbullying: the Protection from Harassment
Act. Under the Act, victims can get a
protection order if they show that harm has
or will be caused to them. In addition to this,
the Act stipulates that Internet providers can
be forced to provide the identity of the
perpetrators – unmasking their identity from
behind their computer screens.
Cyber-bullying is a growing form of abuse.
Legal protection must develop with it. Some
detractors of cyber-bullying legislation cite
freedom of belief and opinion and freedom
of expression as being infringed by
increasing encroachment of the law into the
Internet realm. Though it may be true that
these rights are limited, it is so done for the
protection
of
non-derogable
rights
entrenched in our Constitution: the right to
equality with and protection from unfair
discrimination, the right to human dignity
and finally the right to freedom and security
of the person, particularly the right to be
free from all forms of violence from either
public or private sources. Free from the
violence of cyber-bullying! AS
THOUGHTS FROM THE EDITOR
Forgive me Facebook, for I have sinned…
By Kwadwo Ofori Owusu
I’ll admit to being slow on the UCT
Confessions uptake, having gone on a
self-imposed
Facebook
sabbatical
during the exam period—the time this
salacious site supposedly took off—but
as with most people who have ventured
into that dark part of the Facebook, my
interest was piqued.
Now, I think the reality of UCT
Confessions is that some people
couldn’t give a flying Voet about who
wishes they could be shagging whom in
the whichever secret nook in the
whatever restricted section of the
African Studies Library, while others are
only slightly, silently interested (perhaps
at a deep-seated voyeuristic level) in the
shameful shenanigans of their campus
colleagues and friends. More still, some
of us at Kramer, domiciled as we’ve
become in the Brand van Zyl Law
Library, have taken to living vicariously
through the anonymous confessors of
that page.
My own interest in the page grew in part
out of a lawyerly curiosity at the legal
ramifications of the existence of such a
page. There are a number of actors in
this saga: the anonymous confessors,
who use this platform to post in guised
openness about things true and untrue,
licit and illicit; we have the (sometimes
named)
people—let’s
call
them
Trumans—who often are the unwitting
subjects of these confessions; then
there are the unseen administrators of
the page, connected as they may or
may not be to the institution; and of
course, the University which gives its
name to this show, and which sets the
scene for much of the production.
Admittedly, the majority of so-called
confessions are rather mundane. The
run-of-the-mill Agony Aunt-type posts
are a familiar sight, as are the ‘our
campus is better than yours’-type posts,
ostensibly originating from disgruntled
students at rival institutions. And of
course, the page is awash with
hopelessly rehearsed pieces about
romps in Rochester Hall or Tugwellite
trysts. Occasionally page ‘likers’ are
made to suffer the sob stories of
wayward souls who have no connection
whatsoever to the University—or any
university—but who desperately need to
‘get ish off their chests’. And the Mean
Girl in each of us is like: ‘He doesn’t
even go here!’ Generally the comments are
more interesting to read than the original
confessions themselves, that is, until they
descend into the vitriolic racist, sexist,
homophobic hate-monger rants that leave the
reader thinking, ‘… but dude, do you even
realise that your comment isn’t anonymous?’
It’s that kind of comment and analogous posts
that haul a question mark over the
acceptability of UCT Confessions and other
confession pages, especially when they have
some real innocent (in a manner of speaking)
Truman as the subject.
For the University’s part it has made
statements to the effect that it is ‘aware of’ the
UCT Confessions page, but that it ‘distanced
itself from comments made on it’, and saw fit
to remind readers that ‘statements made on
the forum could be false’. Other universities
have had less blasé chilled tolerant responses
to confessions pages specific to their own
institutions. The University of KwaZulu-Natal
has
threatened
legal
action
against
contributors and administrators of the UKZN
Confessions page. A spokeswoman for the
university said, ‘In the case of serious
allegations that have no merit, the university is
exploring measures with Facebook to close
these pages and proceed with legal action
against persons who bring the university’s
name into disrepute.’
The University of the Free State has reacted
in a similar vein, which has led to that
university’s Kovsies Confessions page being
shut down—a victory for the Authorities.
Countless other universities in foreign
jurisdictions have tried, and some have
succeeded in having similar confession pages
connected to their institutions closed down,
though few, if any have done so with the
backing of the courts.
In a number of these cases, it is alleged that
the university in question has succeeded in
putting a lid on the pages on the basis of the
violation of some university rule. This appears
to be the case at the University of the Free
State, though this remains unconfirmed. Other
universities have provisions that could
possibly be used by the Authorities should
they decide that they’ve had enough: Rhodes
University, for instance, has a rule 4.17(d) in
their Disciplinary Code, which states that: ‘A
student may not engage in conduct likely to
bring the University, or any part of it, into
contempt or disrepute.’
No such rule exists on UCT’s books. The
most the University could hope to rest on is
rule RCS5.6 of our General Rules and
Policies, which provides that: ‘A student must
not make unauthorised use of the name or
badge of the University.’ The UCT
Confessions page does not use the
University’s badge, but a case could be made
against its use of the abbreviated for of the
University’s name. But in that instance, the
University’s own admission that it is ‘aware
of the page’ and subsequent failure to take
action could lay the grounds for the defence
that the University gave its tacit assent to
the use of it name. In any event, there are
countless pages created by UCT students
that use some variation of the university’s
name without being authorised to do so—it
would set a bad precedent for the University
to start caring only now.
Another possible avenue for the University
to pursue could be a claim for defamation.
But even this option presents some
challenges. While it is trite that defamation
in our law seeks to protect the reputation of
a person, the courts have been less than
clear about the extent to which juristic
persons, of which the University is one, are
protected against defamatory statements
that supposedly harm their reputation. [See
the cases of Die Spoorbond and Another v
South African Railways 1946 (AD) 999, and
Dhlomo NO v Natal Newspapers (Pty) Ltd
1989 (1) SA 945 (A) for more on defamation
and juristic persons.]
Regardless, it is interesting to consider how
any person might have recourse to the
courts if they felt particularly injured by the
existence on Facebook of a confessions
page or a particular post on such a page.
One might also consider whom they might
be able to join as a respondent party in
such a case. While there generally is a
dearth of South African case law on
Facebook and other social media, this is
changing as the law struggles to keep up
with
advancing
technologies,
communication channels and modes of
interaction. Consequently, there appears to
be a growing number of cases that broach
Continued at Page 15
Page 3
It has been several months since the
last issue of Altum Sonatur, and in
that interval it would seem that a new
scandalous phenomenon has taken
over our little community at the base
of the hill: UCT Confessions.
In Memoriam
Justice Pius Langa
I
As I write it, I realise that I have chosen the
title of this post deliberately, trite as it may be.
In memory. Is that not where we are? And
what we are in mourning? Memories. And,
moreover, of justice. Those who have studied
the human psyche, tell us that mourning is
the business of memory. In mourning we are
in memory — in remembrance of the Other
who is irretrievably and irreplaceably lost to
us, who is, from now on, for us only to the
extent that they are in us as memory. This is
how Justice is done to the Other — in
memory.
II
Wednesday. It is a cold and rainy Cape Town
morning. I am walking down the corridor of
my department at the faculty of law, in (my)
mourning, I suppose, one might say; in
memory, in any event. (Are we not always
already in mourning, asks Derrida.) Last
night, I dreamt that an important person had
died. When I woke up I could not remember
who it was that died in my dream. My
colleague who is organising a conference on
the judicial legacy of Pius Langa emerges
from his office. We meet in the corridor. In the
recent past, we have spoken often and at
length about the upcoming conference. There
is a pause before he asks me whether I have
seen that Justice Langa died this morning at
the age of 74. It was on the news.
When one is told about the death of a great
spirit, of the death of one who one has
admired, even revered, one does not want to
believe. One does not want to believe that
such greatness can depart from the world.
And yet, this is the inescapable fate of all
physical bodies that temporarily reside, as the
Hegelians say, in the Spirit. So we must
believe, which is to say, accept and come to
terms with the loss. I drift to the office of my
colleague in another department. His phone
is ringing off the hook. The press: a sound
bite, if you please. We talk about what there
is to say; about saying precisely when one
does not know what to say. For the sake of
memory. About being affected, about being in
affect by this death, despite the fact that we
By Professor Jaco Barnard Naude
did not know Pius Langa personally. On the
way back to my office, I am reminded of
Derrida’s problematisation: is mourning not
precisely the grief one feels for the one that
one does not know, for the stranger, for the
unknowable secret harbored in the heart of
every Other, for the unfamiliar in even the
one most familiar to us?
III
I do not know how many times I have written
a variation, a re-inscription, of the following:
The South African transition has been hailed
all over the world as an exemplar of
peaceful transition from totalitarian to
democratic rule. Given that the terms of the
transition were directed, from the outset,
through the prism of a constitution, United
States scholar Karl Klare has termed South
Africa’s
transition
‘transformative
constitutionalism’. Klare describes this
process as in the first place, a long-term
project committed to a future of ‘large scale,
egalitarian social transformation’ ‘through
non-violent political processes grounded in
law’. He envisages for South Africa a
transformation
‘vast
enough
to
be
inadequately captured by the phrase
‘reform,’ but something short of or different
from ‘revolution’ in any traditional sense of
the word”. In an address entitled
‘Transformative Constitutionalism’ delivered
at the Stellenbosch law faculty in 2006,
former chief justice Pius Langa located the
origin of transformative constitutionalism in
the postamble of the interim Constitution
and plainly described what he understands
transformative constitutionalism to be.
Referring to the postamble, he stated: ‘This
is a magnificent goal for a Constitution: to
heal the wounds of the past and guide us to
a better future. For me, this is the core idea
of transformative constitutionalism: that we
must change.’ ‘Transformation is a
permanent ideal, a way of looking at the
world that creates a space in which dialogue
and contestation is truly possible, in which
new ways of being are constantly explored
and created, accepted and rejected and in
which change is unpredictable but the idea
of change is constant. This is perhaps the
ultimate vision of a transformative, rather than
a transitional Constitution. This is a
perspective that sees the Constitution as not
transformative because of its peculiar
historical position or its particular socioeconomic goals but because it envisions a
society that will always be open to change and
contestation, a society that will always be
defined by transformation.’
Langa went on to highlight the massive socioeconomic transformations that still need to
happen in South Africa, stating that ‘the
levelling of the economic playing field’ is
‘absolutely central to any concept of
transformative constitutionalism’. He then
described a direct link between transformation
and reconciliation, stating: ‘Transformation is
not something that occurs only in court rooms,
parliaments and governmental departments.
Social transformation is indispensable to our
society. In South Africa — it is synonymous
with reconciliation. If there is no reconciliation
between the people and groups of South
Africa we will simply have changed the
material conditions and the legal culture of a
society that remains fractured and divided by
bitterness and hate.’ Langa went on to say
that ‘[t]here is no right way to deal with the
immense violation that was apartheid. But, as
a society, we must keep alive the hope that
we can move beyond our past. That requires
both a remembering and a forgetting. We
must remember what it is that brought us
here. But at the same time we must forget the
hate and anger that fuelled some of our
activities if we are to avoid returning to the
same cycle of violence and oppression.’
Memory, then. And the memorial words
of a man whose legacy, whose justice
(expressed so powerfully in the words
above) we cannot afford to forget. And
Tennyson’s famous memory poem
comes to mind:
Let knowledge grow from more to more,
But more of reverence in us dwell;
That mind and soul, according well,
May make one music as before
IV
Page 4
In memoriam: Justice Pius Langa (19392013)
(Originally published in the Mail and
Guardian Thoughtleader, 25 July 2013)
The (un)banning Contextualised
A systematic account of the Film Board’s controversial decision
By Safura Abdool Karim
Lights, Camera Action…
It began Thursday, 18 July 2013.
An audience streamed into
Suncoast Casino’s movie theatre
to watch the Durban Film
Festival. Instead of seeing Jahmil
XT Qubeka’s ‘Of Good Report’,
they were met with an Orwellian
black screen that read:
mandate in line with that legislation.’
‘This film has been refused
classification by the Film and
Publication Board in terms of the
Film and Publications Act 1996.
Unfortunately we may not legally
screen the film Of Good Report as
to do so would constitute a criminal
offence’.
The film board stated that they had been
unable have a screener review the film
prior to its screening slot. The final
sentence read ‘The film has not been
classified by the Board.’
Shockwaves rippled through the
industry,
the
South
African
community at large and eventually
the international community. It has
been reported that the Film Board’s
refusal to classify the movie marked
the first movie banning since 1994.
The Film Board’s refusal was based
on viewing only twenty-eight
minutes of the movie.
Why twenty-eight minutes? The
Film and Publications Act requires
that classifiers stop watching the
movie, the moment there are
depictions of a minor having sex.
‘Of Good Report’ centers around a
common, though rarely discussed,
problem of older men engaging in
sexual conduct with minors. As
depicted in the movie, this is
particularly
prevalent
between
teachers and their students.
Fast-forward a few days and once again
festival goers are met by a black screen
instead of the movie they were hoping to
see. ‘Look of Love’ directed Michael
Winterbottom was the second film
disallowed from being screened at the
festival.
However, Winterbottom’s story ended
somewhat happily as the Film board
reviewed the film and allowed it to be
screened in time for ‘Look of Love’ to
qualify.
During this time, the Film Festival – and
its company of movie-loving lawyers
were attempting to expedite an appeal
on the board’s decision regarding ‘Of
Good Report’. This appeal was granted
and set down to be heard on Saturday,
27 July 2013.
While the transcript of the hearing and
judgement was not available at the time
of going to print, various individuals
suggested that the matter turned on the
applicability of a Constitutional Court
decision dating back to 2004. The
landmark case – De Reuck v Director of
Public Prosecutions, Witwatersrand –
penned by the late then-Deputy Chief
Justice Langa called for a consideration
of the context in determining whether
material was of artistic worth or merely
porn.
“Where … the aesthetic element is
predominant, the image will not
constitute pornography."
This sentiment was echoed – and
perhaps clarified – by Pierre De Vos
who stated that one ought to consider
whether the whole amounted to child
pornography with sufficient regard to the
context.
Given that less than a half hour of the
film had been viewed, it seems unlikely
that the ‘context’ guideline had been
applied by the board. Despite all of the
above, Ndamase insisted, ‘We agree
with artistic merit, but it is not legally a
basis for exemption.’
On Sunday, 28 July 2013 the papers
were flooded with two headlines. The
first was that the Film Board decision
had been overturned and ‘Of Good
Report’ was given an R-rating, allowing
those, 16 and above, to view it.
This news might have been bittersweet
to those in the festival and perhaps to
Qubeka as well since the late
reclassification meant that his film could
not qualify for entry to the film festival.
The night of the appeal, the Film
Festival jury announced that ‘The Land
of Hope’ had won The Best Feature Film
Award.
However, that same Saturday, Qubeka
became the first recipient of the Film
Festival’s new award for Artistic
Bravery. ‘Of Good Report’ was screened
on Sunday, the last day of the Durban
Film Festival.
Annnd Cut…AS
In defence of their decision,
board member Prince Ndamase
said, ‘The legislation is very clear
when
it
comes
to
child
pornography. No exception is
made, including artistic merit and
therefore we have executed our
Page 5
Twenty-eight minutes into the film
the 16-year-old student, depicted
by 23-year-old actress Petronella
Tshuma, performing oral sex on
her teacher. While the age of
consent in South Africa is 16, the
publication laws set the minimum
as 18 years of age.
Case Noted: H v W
The Next Step in South Africa’s Defamation Jurisprudence
By Stefanie Busch
With the introduction of numerous
online platforms that allow for the
interaction of thousands of people
simultaneously,
comes the huge
potential for conflict. Introducing the
modern battlefield that is Facebook,
feeding off rumours, accusations and
momentary social outrage. Time and
again our reputations come under
serious attack by other users, who
believe that they are protected behind
the electronic curtain that is the Internet,
backed up by their right to freedom and
expression.
However, in steps the knight in shining
armour that is defamation law in order
to protect our digital replications from
such cyberbullying. With the gradual
adaptation of defamation principles to
meet the needs posed by the Internet,
civil cases of defamation on the social
media
platforms
are
blooming
worldwide, proving that the sphere of
the net does not provide the bulletproof
vest most thought it did.
With the landmark court ruling in the
South Gauteng High Court in January
this
year
concerning
Facebook
defamation, the H v W case, the South
African law on defamation has been
modified to include
liability
for
slanderous and malicious statements
posted on social media. Judge Willis
granted the applicant an interdict
ordering the respondent to remove all
the postings she had made on
Facebook referring to the applicant,
many of which were insulting and
slanderous to his reputation.
Thus, a new precedent has been set in
our law, allowing for the protection of
our online reputations. Yet, I can’t help
shake the feeling that what we are
dealing with in this case is not
defamation at all, as it goes far beyond
what the principles of defamation allow
for. Also, is such an order even
comprehensible and justifiable in a
world that prides itself with freedom of
expression
and
speech?
What
Pandora’s Box filled with cruel and
threatening
consequences
of
censorship has Judge Willis opened
here by means of this judgment?
Page 6
Yet, let’s first look at Willis’ reasoning
for this order. Whilst evaluating the
different remedies available to the
courts, Willis is quick to decide that an
action for damages, accompanied by
‘needless expense, drama, trauma and
delay’, could be avoided simply by
issuing an interdict that the respondent
is to remove the posting. Whilst he
considers the court’s general reluctance
to interdict publications, a concern which has
been labelled the ‘chilling effect’ of court
orders, Willis emphasises his opinion that
the ‘stopping of the press’ is ‘justifiably
different’ from the removal of items from
social media. Thus, he chooses to ignore the
concern made by cases such as National
Media Limited v Bogishi concerning the
chilling effect, merely based on the
reasoning that such cases dealt with the
news media specifically and could not be
applied to a case concerning social media.
Quickly he moves on to state that the
electronic media is vastly different to the
traditional media, thus necessitating a
different
approach:
‘Not only can items be posted and travel on
the electronic media at a click on a computer
in a moment (...) but also they can, with
similar facility, be removed therefrom. This
can be done at minimal cost. The situation is
qualitatively different from the scenario
where newspapers have been or are about
to be printed in hardcopy and distributed.’
However, Willis does not address the fact
that merely because a statement on the
Internet can be deleted at minimal cost, it
does not necessarily follow that it is
justifiable and just to do so. Instead, this
onerous premise is used by Willis to justify a
remedy that is completely contradictory to
the very essence of the law of defamation. In
this law, something defamatory that had
been said or printed could never be ordered
to be undone, merely apologised for or
retracted. Therefore, the statement still
remained in the public sphere, although the
person under attack would receive some
form of redress. Thus, this judgment goes far
beyond what the law of defamation provides,
whereby it essentially is attempting to
achieve a sort of restoration of the status
quo ante, being basically a complete act of
censorship and destruction of speech.
However, one could argue that the order
was a necessary adaptation of the law of
defamation, essentially stepping beyond
what the authorities had allowed for, but still
necessary to protect our online reputations
that have become oh-so fragile by a mere
posting on our wall or tagging of a picture.
Personally, I believe that we have to
question at what point it becomes irrational
to mechanically apply legal principles
established in a time where a concept such
as the Internet was far beyond anybody's
frame of imagination. Instead of merely
rigidly applying such out-dated principles,
the courts rather have a duty to develop the
common law in order to adapt the law to suit
the changing realities of our Information age.
Judge Willis did exactly this - he stepped
beyond the legal principles and remedies
encompassed in the law of defamation, and
upheld his constitutional duty to develop the
common law to take the social media, and the
general technological progress, into account.
However, I question the manner in which he
approached this, and whether such a
development was even necessary to begin
with.
When developing the common law, section
39(2) of our Constitution expressly requires
that the courts are to ‘promote the spirit,
purport and objects of the Bill of Rights’. Thus,
when evaluating the validity of Willis’ order in
contrast to what is expected of him,
procedurally, it becomes evident that he
completely failed to fulfil his constitutional
obligation. Not even does he measure his
development in the common law made against
the spirit, purport and objects of the Bill of
Rights, but he also fails to acknowledge the
fact that he is actually choosing to develop the
common law. No mention whatsoever is made
of s 39(2). Hence, Willis sneakily avoids having
to measure his development against the Bill of
Rights – specifically s 16’s right to freedom of
expression – as well as having to go through
the process of s 36’s limitations of such rights.
Additionally, I question whether this, although
unauthorised
and
unsubstantiated,
development of the common law was even
necessary. Willis justifies his radical order by
emphasising the fact that the maintenance of
one’s reputation on the net is more vulnerable.
Citing the European Court of Human Rights,
Willis
states:
‘The electronic network serving billions of
users worldwide is not and potentially cannot
be subject to the same regulations ad control.
In Response:
H v W examined from a
different perspective
Whilst I can agree with the fact that the very
nature of the Internet can destroy a
reputation within minutes, as well as
maintain such defamatory publications for
generations to come, I think Willis failed to
understand the very nature of the platform
he was dealing with here.
If Willis would have engaged more with the
nature of Facebook, instead of merely the
technicalities and the function of it, he might
have come to realise the fact that what
might be a defamatory statement when
made in the traditional media or even online
news media, cannot be considered to have
the same defamatory effect when made on
Facebook.
It is common knowledge – at least for our
generation, which has basically grown up in
the Internet Age – that everything posted on
Facebook should be taken with a pinch of
salt.
Triviality,
mob
mentality
and
exaggeration are a common companion
when scrolling down ones News Feed. We
users understand that such posts are based
on someone’s personal viewpoint, and that,
rather than being completely gullible and
accepting such information as the truth, we
will search the web for more opinions
regarding the same story. In this manner
we can evaluate the actual character of the
person involved in the attack, instead of the
reputation that is being tarnished on
Facebook. Thus, the counter-narrative that
can be found on other social media
platforms and online news sites can provide
a balanced viewpoint as to the actual
character of a person.
Merely because something is published on
Facebook does not necessitate its truth –
not like the general news media, which are
believable because they are accountable.
Ultimately, Facebook users are not
accountable, thus they cannot be held to be
credible. Without credibility, any statement
made on Facebook will clearly lack any
defamatory effect. Surely, a statement
made, but not believed by the ‘right-thinking
members of society’ – being in this case the
Facebook community – cannot be regarded
as defamatory.
Hence, it is important to ask ourselves –
what do we evaluate as defamatory in the
Internet Age? Surely such evaluation as to
what constitutes defamation in the present
boni mores of society will inform the extent to
which the courts by means of defamation
law, may limit and interfere with our right to
freedom of expression. Our perception of
that constitutes our online reputations, and in
which manner they might be attacked,
should be viewed within the platform that it
functions in, in order to evaluate the
magnitude and effect of the supposed
defamatory statement. Surely statements
made on Facebook should be understood in
reference to what Facebook is mostly
perceived to be – being all fun and games.
All about last night’s party, today’s hangover
and tonight’s drink specials. Not to be taken
too seriously.
Perhaps if Judge Willis had done this he
might have realised that the drastic remedy
he had chosen to inflict on the use of the
applicant’s right to freedom of expression
was not only unnecessary, but also
detrimental to the very law of defamation.
Instead of remaining the knight in shining
armour that the law of defamation is
supposed to be for the helpless reputations
of the damsels in distress, Willis’ precedent
might have morphed these heroic principles
of law into a chilly blanket of censorship.
Ultimately, it is in the hands of the courts to
recognise the ramifications of the remedy
chosen by Judge Willis. I doubt that the
courts can merely remain nonchalant and
ignorant to the fact that Willis has clearly
overstepped the boundaries set by the
authorities without even engaging in serious
deliberations as to the necessity and effect of
such an order. Whilst I believe that it is
necessary for our South African law to step
away from the safety net that is the RomanDutch and English principles of law, and
rather evolve the common law courageously
as is expected from them, it remains
imperative that a judge, when taking such a
considered step away from the common law,
explain and intensively engage with such a
move, instead of merely ‘winging it’ like
Judge Willis has done in H v W. AS
According to Currie and De Waal, an
investigation into whether the common
law right to privacy has been infringed
involves an assessment into its
lawfulness, i.e. the presence or absence
of any justification. Further, according
to Harms AJA in Janse v Vuuren v
Kruger, the defence to alleged
infringements of the right to privacy
must be assessed in the same manner
as justifications under the law of
defamation
are
formulated.
Unlawfulness in relation to the
infringement of a person’s right to
privacy
has
two elements:
the
infringement must be against the
person’s subjective will and it must be
objectively unreasonable. With regards
to this notion of unreasonableness,
Willis J quoted Corbett CJ in Financial
Mail (Pty) Ltd v Sage Holdings Ltd,
where the learned judge held that in
demarcating
the
line
between
lawfulness and unlawfulness in the field
of personal privacy, the particular facts
of the case must be judged in light of the
contemporary boni mores and the
general sense of justice within the
community, as perceived by the court.
This naturally involves balancing the
interests of all parties involved.
Society’s current sense of justice is,
arguably,
to
be
perceived
as
complementary to the current state of
the law. There is therefore a need to
keep legal rules up to date with
technology as much as possible in order
to maintain people’s respect for the law.
With regards to defamation itself, the
SCA in Mthembi-Mahanyele v Mail &
Guardian held that unlawfulness is
established by determining whether a
reasonable
person
of
ordinary
intelligence would have understood the
material as defamatory. Willis J took it
for granted in paragraph 26 that the
Page 7
The risk of harm posed by content and
communications on the internet to the
exercise and enjoyment of human rights
and freedoms, (...) is certainly higher than
that posed by the press.’
The significance of the right to freedom
of expression in a constitutional
democracy that is younger than most of
us cannot be gainsaid.
However,
significance does not equate supreme
reign. Indeed, the Constitutional Court
has confirmed that the right does not
enjoy superior status under South
African law. The right to privacy was
recognized by the Constitutional Court
in Bernstein and Others v Bester and
Others NNO as an independent
personality right, often included in the
common law concept of dignitas by
courts. Within the Constitution, a close
link has been established between the
rights to privacy and dignity. In H v W,
there was an apparent conflation of the
common law rights to reputation, dignity
and privacy, all subsumed under the
actio iniuriarum.
Responses: H v W
A response to the case note on H v W
By Farai Chikwanha
respondent’s
post
was
indeed
in a way that allowed an order for the
defamatory of the applicant, but this
removal of the contentious material from
appears to be where the problem lies.
the respondent’s Facebook wall and from
Continued on page 7
any other social networking sites on which
Under the law of defamation, it matters
she may have made posts about the
not whether the people receiving the
applicant.
A procedural issue in the
publication actually believe it or whether
motion proceedings had to be settled. It
the person making the allegation is
related to having the applicant establish
credible. What matters in establishing
that there was no other, ordinary remedy
unlawfulness is the response of a
that would offer similar protection. It was
constitutionally informed, right-thinking
found that an order calling for the removal
member of society who is not overly
of the material in question would involve
sensitive. Surely such a person would
minimal costs and almost no delay,
consider a man less worthy of esteem if
provided the respondent co-operated.
he were made to come off as a
However, what ramifications would an
neglectful father with an unhealthy
order of this nature have on the future of
affinity for intoxicating substances. In Le
freedom of expression on the Internet
Roux v Dey, the importance of context
was emphasised. While it is true that
Facebook, and indeed all social
Facebook is not France24, this may not
networking sites, insofar as they relate to
necessarily (and did not, in the case)
the efforts made to record the triumphs
take away from the effect that a
and/or tribulations people experience in
statement made by an adult woman may
their lives, cannot be likened to journalism
have
on
the
in its electronic medium
reputation of an
because
it
mainly
there are important
adult man on the
involves people sharing
legal safeguards in
social
networking
aspects
of
their
site.
place to protect against personal lives with their
‘friends’. The ‘chilling
an unfounded disregard effect’ referred to in
Returning to the
development of the
Media Limited
of the right to freedom National
law, Willis J did
v Bogoshi, concerned
acknowledge, albeit
the impact of stifling the
of expression
in a footnote, the
free flow of news and
section 39(2) duty
information
from
on courts to develop the law from a state
members of the media responsible for
in which it was applicable in centuries
their dissemination. In this regard, the
past to a state in which it may prove
emphasis on context by the Constitutional
responsive and appropriate in our
Court must be recalled. Willis J stated
current technological age; in particular,
that the social media is a sub-set, but
the need to develop the law as it applies
does not form the entirety, of electronic
to social media. Indeed, he held at
media. It is perfectly understandable for
paragraph 8: ‘It is the duty of courts
courts to make efforts to restrict the
harmoniously to develop the common
outright removal of information from the
law in accordance with the principles
electronic fora of news outlets as such
enshrined in our Constitution. The pace
conduct would echo back to the thought
of the march of technological progress
control exercised by the Apartheid
has quickened to the extent that the
government. However, when it comes to
social changes that result therefrom
social networking sites, where the privacy
require high levels of skill, not only from
of individuals (especially the Plain Janes
the courts, which must respond
and Joe Blows of the world) might be
appropriately, but also from the lawyers
infringed, not out of public interest,
who prepare cases such as this for
but merely because it would be
adjudication.’ Further, in paragraph 31,
interesting to members of the public,
the learned judge stated that such
is the granting of a court order
necessary development related to
directing the removal of invasive
remedies available to aggrieved parties
posts not preferable to obliging
in the face of infringements of their right
aggrieved
parties
to
initiate
to privacy.
potentially
time-consuming,
emotionally draining and costly
Both litigants were aware of the
litigation?
applicant’s right to institute action under
the law of defamation and his
The law is not a sledgehammer.
entitlement to damages in the event of a
Barring intervention by a higher court,
judgment in his favour.
However,
if in future interdicts may be granted
instead of leaving the parties to initiate
in response to infringements of an
the conventional process of a damages
applicant’s right to privacy in the
claim, Willis J opted to develop the law
social media, this does not mean that
all undesirable posts on social networking sites will
have to be removed. Indeed, Willis J even refused
to make an order barring the respondent from
making future posts about the applicant,
acknowledging that circumstances may arise
which justify such conduct. If the possibility of
factual distinction were acknowledged in a case
involving the same parties, surely the same would
apply to cases involving different parties under
circumstances which are also likely to be
dissimilar. Such distinction may have the effect of
barring the ordering of an interdict. Additionally,
there are important legal safeguards in place to
protect against an unfounded disregard of the right
to
freedom
of
expression,
namely
the
reasonableness standard to be met in establishing
unlawfulness (which, itself, relates in a fashion to
the maxim de minimis non curat lex); the defences
available to those who have been confronted for
infringing a person’s rights, which also negate
unlawfulness; and the concept of context, which is
a valuable guide for courts. AS
Sounds
Profound?
Continue the
Discussion
Page 8
altum.sonatur.uct
@
@AltumSonaturUCT
Case Noted
CMC Woodworking v Pieter Odendaal
Mr Odendaal purchased some equipment
from the plaintiff, failed to pay for it and was
sued for breach of contract.
The court
process was already at an advanced stage,
with pleadings exchanged. All that the parties
were awaiting was a court date when Mr
Odendaal mysteriously disappeared and his
lawyers withdrew from the matter leaving no
alternative address for the service of papers
upon their former client. CMC Woodworking
therefore effectively had no way of contacting
the evasive defendant, and the trial process
was at a standstill.
Audi alteram partem: Let the other party be
heard. A fundamental concept of the rule of
law and natural justice. But how is the other
party to be heard when he is nowhere to be
found, and indeed does not appear to wish to
be found? That was the dilemma facing CMC
Woodworking Company and their legal
counsel.
The service of papers is usually carried out
by the Sheriff and is done personally upon
the party whose interests are to be affected.
The Sheriff finds the person at home or work,
explains to him or her what the process
means and gets him or her to sign a receipt
which is retained as prima facie proof that the
person is aware that they must appear in
court. This is deemed the most effective
manner of ensuring that the person served is
not prejudiced and is able to have his ‘day in
court.’
Where conventional processes fail, as in this
case, the Rules of Court provide for
‘substituted service’. In terms of this process,
the plaintiff will approach the court for an
order authorising an alternative method of the
serving of summons. Leave will be granted
only after a very careful examination of the
facts by the court, and only after the court is
convinced that the defendant will indeed
receive the necessary information. Generally,
substituted service is ordered when the
defendant is believed to be in South Africa
but one of the normal forms of service cannot
be effected. The allegations that typically
need to be made in support of an
application for substituted service
include:
•
•
nature and extent of claim;
grounds on which the court has
jurisdiction in respect of the claim;
•
method of service which the court
is asked to authorise;
•
last known location of the person to
be served;
•
efforts to locate the whereabouts of
the person to be served; and
•
any information that will assist the
court in deciding whether leave
should be granted for substituted
service and on what terms
The case was an ex parte application
heard by Judge Steyn in the Durban
High Court. Having exhausted the
conventional methods of attempting to
contact the defendant as per the rules of
court, CMC Woodworking’s attorneys
approached the court with a rather unusual
request: for the defendant to be served via
Facebook.
Facebook is a social network with over a
billion users which has experienced, and
continues to experience exponential growth
since it was first started back in 2004. It is
undeniably a worldwide movement and this
fact is exactly the basis on which Judge
Steyn justified her judgement. In her
opinion, despite the nature of Facebook as
a social network, it serves the equally useful
function of allowing the law to reach
individuals it might otherwise have been
unable to reach
The Uniform Rules of Court have recently
been amended to reflect changes in the
Electronic Communication Act 25 of 2005,
specifically in Rule 4 A. These changes
allow litigants to serve court documents by
e-mail or fax and were created expressly to
ensure that the defendant is aware of the
stage of court processes. Judge Steyn in
her judgement reiterated this idea, stating
that there would not be a blanket use of
Facebook to issue summons and it would
be used only on a case-by-case basis,
when the court was satisfied that the served
party would indeed become aware of the
stage of the court process. The object of the
amendment was to ensure that the
defendant came to court when required.
The applicant in this case was allowed to
serve summons upon the defendant using a
personal Facebook message. To cover all
bases, and for reasons of “legal certainty”
the court ordered a notice in the newspaper
to reinforce the effectiveness of the
summons and ensure that the
defendant, one way or another, became
aware of the summons issued.
The judgement has been widely
discussed and deemed inventive. It will
inevitably have its critics and obvious
shortcomings.
The
most
urgent
questions relate to the issues of privacy
and reliability of Facebook as well as
the effectiveness of the process.
Facebook is a social network and
susceptible to hackers and viruses. A
person might well have a Facebook
account which they check only
sporadically. They might appear active
on the network when it is merely the
actions of others, who might have
“tagged” the person in current photos.
No receipt of service is retained and
there is no definite proof that a person
is aware of the summons issued. Legal
certainty is certainly compromised to an
extent.
Despite the questions raised, it remains
one of the most unusual and novel
judgements to come out of the South
African courts. It made the best of an
unusual set of circumstances and
incorporated technology and social
media in a manner which is laudable. It
is certainly in line with the approach of
courts around the world: courts in New
Zealand, the UK, Australia, Canada and
the US have all embraced the role of
social media and technology in
substituted service cases. Time will tell
how much impact Facebook will have
on legal processes and how effective it
is as a tool beyond a merely social
context. It is a clear sign of an evolving
legal system, albeit to a limited extent.
AS
Page 9
Technology has undeniably revolutionised
the way the world works. The courts
however, have been somewhat reluctant to
implement technological changes in how they
function and have been roundly criticised for
this rigid approach. They have however cited
the very real need for legal certainty and
established procedure, which form the basis
of the legal system, as their underlying
reasons for not being as technologically
innovative and accommodating as they could
be. Be that as it may, the effect of
technological advances has been felt.
Nowhere is this reflected more than in the
case of CMC Woodworking Machinery v
Pieter Odendaal Kitchens.
By Matilda Nengare
Facebook and the Job Hunt
‘Liking’ and ‘Sharing’ could send you spiralling down the corporate ladder
By Kevin Minofu
I was recently having a conversation with a
good friend of mine who told me that he was
terrified of meeting his girlfriend’s mother for
the first time. He explained to me that she
had developed the knack of stalking his
Facebook account and his reputation with
her was about as low as the average Greek
bank account. Seeing him so emasculated
by a woman he had never met before got me
thinking of how the entangled social web
called Facebook could affect my life. See, I
am single and currently, at least, in the need
to mingle so the fearsome mother-in-law was
not one of my concerns. On the other hand
however, in the not too distant future I will be
a graduate in need of a pension package
and maybe a company car and that got me
thinking about how employers may use
Facebook to separate the proverbial wheat
from the proverbial chaff.
My first port of call was seeing whether the
stress people had over the interview process
was actually misplaced considering that
employers spent their ‘recruitment’ time
going through pictures of you stumbling
around Long Street. A couple of studies have
gone into assessing how prevalent the use of
social networks is within the job recruitment
market. A study of 300 firms in the US
showed that about 91% of them used social
media as a tool to hire recruits. Furthermore,
69% of the companies surveyed said they
had declined a candidate’s application based
on what they had found out about them
through social media. For those worrying
about what they could start ‘hiding from their
timelines’, it appears that, more than
anything, employers appreciate honesty. Of
the 13% of the reasons for being rejected,
lying about qualifications was the biggest
reason to deny a job application. Trailing
behind that, the usual suspects of drug and
alcohol abuse were the other major reasons
for rejections at 10% and 9%, respectively.
Conversely, for those who think worrying
about your Aunt Hilda’s inquisitiveness is
enough strife, 69% of employers stated that
social media had actually helped them hire
candidates. The qualities that employers
rated highly were evidence of organizational
skills, creativity, well-roundedness and
honesty (yes, I’m also confused about how
your prowess on FarmVille could show this).
Despite this being an American survey, there
are now numerous services on the Internet
that will further help employers to access and
ascertain information about prospective
candidates. But, for those who feel the
Orwellian ghost creeping up behind them,
what of the legal implications surrounding
this behaviour?
Page 10
Considering that the right to privacy is
explicitly protected in South Africa by section
14 of the Bill of Rights and furthermore,
section 14(d) protects the right to privacy
over the ‘right not to have the privacy of their
communications
infringed’, South Africa
at
least
has
the
backbone
of
such
protection. But, as with
most rights (as you may
have discovered Prelim
student) it is subject to
interpretation
and
limitation.
This
constitutionally
protected right also
intersects
and
converges
with
the
common-law. In this
regard the common law
has always protected
your right to dignity,
reputation and privacy.
Privacy is described as
the
condition
that
‘embraces all those
personal facts which the
person concerned has
himself
[or
herself]
determined to be excluded from the
knowledge of outsiders and in respect of
which he [or she] has the will that they be
kept private’. Following from this infringements of privacy are situations where
someone learns true private facts about a
person against his ‘will or determination’.
Such information can be gained from
intrusions and disclosures. An infringement
of someone’s privacy rights will only be
considered unlawful if it goes against the
boni mores of society. In trying to determine
what constitutes an interest that the right to
privacy protects, it is important to keep in
mind whom the information is disseminated
to. This dovetails with the common defence
to privacy violations – that of consent. If the
scandalous liaison you had the other night is
shared to your erstwhile best friend, it seems
intuitive that you have approved of your
(former) best friend knowing this information
but not for the news to be shared with the
rest of your Delict class (the irony is not lost
on me). The question, in this case, is what
have we consented to when we post things
on Facebook? Do we expect this information
to be readily available only to your 800
friends? Or do we recognise that we have
now placed this information in the public
domain and consented to every peeping
Tom, Dick and Harry to have access to it?
With this in mind, there have been
understandably a few cases that have dealt
with this specific point, but a recent
defamation case in the South Gauteng case
dealt with one of the few judicial
pronouncements on Facebook. Despite the
hilarious imagery of a judge who is well
versed in Voet, Hart and Fuller attempting to
grasp the anomalous and abstract concept
of ‘tagging’, the learned Willis J presided
over a matter in which the plaintiff was
referred to as a deadbeat, alcoholic and
broke father (in a matter of words). The
judge in that case, held that the effect of
publication on Facebook was no different
to publication in the form of telling a third
party and ruled that the respondent had
defamed the applicant.
The moral of the story effectively goes to
considering what you agreed to when
signing up on Facebook. If the posts,
comments and pictures you have on
Facebook are generally available to the
public despite the fact that Facebook has
settings that would prevent this from
happening, it appears that an employer
would be able to use the defence of
consent in that scenario. Naturally, it
follows that employers who hack into you
account and pose as others to find
information about you will be acting in
violation of your privacy. But they are
interesting areas where the answers
seem less clear, what of relentless
‘stalking’ online? Is it akin to ‘stalking’ or
‘shadowing’ in real life and can the
defence of consent be stretched to these
scenarios?
Until we get more people with deep
pockets to litigate these aspects of the
law, the answers still seem hazy.
Perhaps the best advice is to be the
online hermit and share absolutely
nothing online. But, that’s cumbersome
and perhaps better heed must be taken
to self-regulating your own privacy on
Facebook. But that may mean I have
nowhere else to discover that you have
put on 10 kilograms since high school.
Alas. AS
To the Point
Supplied by Edward Nathan Sonnenbergs
Alicia Castelman
Trademark Attorney in ENS’ IP Department
Pics on Twitter
Because the earthquake was major
news, a number of media companies
contacted Morel and asked him for
permission to use the pictures. Agence
France-Presse (AFP) - a news agency
that offers an international photo
service - however simply downloaded
13 of Morel’s photos on to its ‘Image
Forum’, and then transmitted them to
the company Getty Images, which in
turn licensed them to
various
newspapers including The Washington
Post. In the circumstances, the court
had to decide whether AFP’s conduct
constituted copyright infringement.
A photograph is protected by the law of
copyright, and in terms of the South
African Copyright Act photos form part
of a larger category, namely ‘artistic
works’. The owner of the copyright in a
photo is generally the photographer,
and the owner has the exclusive right
to do various things, for example, to
reproduce the photo or to publish the
photo. There are certain exceptions to
the owner’s rights as discussed below.
During the court proceedings, AFP did
not contest Morel’s copyright claims in
the photos. The company’s argument,
however, was that it was entitled to use
the photos because they were freely
available on Twitter.
As a result,
Twitter’s Terms of Service became very
relevant. These terms included the
following:
‘By submitting...content...you grant us a
worldwide, non-exclusive, royalty-free
licence... to use, copy... such content”,
followed by, ‘Tip: This licence is you
authorizing us to make your Tweets
available to the rest of the world. But
what’s yours is yours – you own the
content’;
‘We encourage and permit broad reusage of content’. Twitter will have the
right to make the content available to
companies ‘who partner with Twitter’,
as well as a licence to use photos on
‘Twitpic.com or affiliated sites’.
In his judgment the judge said that
AFP was neither a partner nor an
affiliate of Twitter’s. He said further
that,
simply
because
Twitter
encourages sharing, it does not follow
that the person posting the content has
waived all their rights. He said that
Twitter’s Terms of Service make it
quite clear that the person who posts
the photos owns the photos. He said
that, whilst the Terms of Service make
it clear that the user who posts photos
does allow the re-posting or rebroadcasting of images in certain
circumstances, such as re-tweeting,
the user does not grant a licence to
others for commercial use. The judge
also said that it was self-evident that
the unauthorised commercial use of
the
photos
would
impair
the
photographer’s ability to license the
photos, and dilute the value of their IP.
In the circumstances, APF’s defence of
having a licence to use the photos
failed. The company’s defence that it
was a so-called ‘third party beneficiary’
of an agreement between Twitter and
Morel also failed because clearly Morel
had never understood that Twitter was
granting rights to other parties.
Therefore, the judge found that Morel’s
claim of copyright infringement had to
succeed. As for the issue of damages,
this was left over for determination by
a jury, although it is anticipated that the
damages could be in the order of
US$1.2 million.
There
has
been
considerable
commentary on this case, because it is
thought to be the first decision that
deals with this issue. Until now most
of the focus has been on the question
of whether the people who post
material like photos on social media
sites may be infringing copyright,
rather than whether the people using
that material are liable.
It has been pointed out that Twitter
could very simply change its Terms of
Service to make it quite clear that the
person posting content agrees to its
use for commercial purposes.
However, there has also been
mention of the fact that, when
Facebook’s photo sharing site,
Instagram, made certain changes to
its Terms of Service - which were
interpreted to mean that Instagram
could sell pictures that had been
posted on the service, even without
the user’s permission – there was
such an outcry that Facebook
quickly backed down.
As mentioned, there are certain
exceptions relating to the rights of
the owner of the copyright in a
photo. The South African Copyright
Act states that the ‘fair dealing’
defence which enable newspapers
and
other
media
to
make
unauthorised use of written works
without permission, provided that
they are used for reporting current
events and provided that the source
is credited , does also apply to
artistic works to the extent that it
can. It seems that a ‘reporting
current events’ defence can be
applied to photographs. Therefore,
the question arises: Would such a
defence apply if a case like Morel
came up in South Africa? It’s hard to
say, but I suspect not for one very
simple reason – it seems to me that
it would not be regarded as ‘fair
dealing’ for a media company to take
a photo without paying for it, when it
is clearly the industry norm to pay for
photos. AS
To the Point is a segment sponsored by
Edward Nathan Sonnenburgs (ENS) to
provide students with the most uptodate
and accurate legal knowlesge and
opinions on current happenings in the
field.
Page 11
There was an interesting decision in
the US recently about the intellectual
property (IP) implications of posting a
photo on Twitter. The facts were that
a professional photographer by the
name of Daniel Morel – a man who has
apparently spent over 25 years in Haiti
– posted dramatic photos of the
earthquake that struck Haiti in January
2010 shortly after the event. Morel
posted his photos on Twitter’s Twitpic
service, saying that he had ‘exclusive
earthquake photos’. Although no
copyright notice appeared on the
photos, the name Morel did appear on
the Twitpic page.
In Class…
Preliminary Year
(Disclaimer: he has not confirmed we’re
friends), discussing the future of our lives, our
planet, our souls, and he asked, with eyes
clouding over in emotion, ‘Do you think our lives
will be like those people in Suits?’ I replied,
realising my single life was nothing like Sex in
the City, ‘I’m pretty sure, Mark, that our lives will
be exactly like Suits.’ I felt bad about lying, but
then again I needed a social life, and he has a
beard and eats at Woodlands Eatery. What
more could I want? Probably a real friend. But
there, I had a social life.
Continued from Page 1
‘An Unconstitutional Election’
that all eligible citizens have an
opportunity
to
vote.
No
such
opportunity was given to members of
the Zimbabwean Diaspora, even those
still registered on the voters’ roll.
Likewise, prisoners and hospitalized
patients were unable to vote.
8. The Media
Throughout the election period the
State-controlled broadcaster and print
news media strongly supported
President Mugabe and ZANU-PF.
Furthermore, the media ridiculed the
MDC Prime Minister and both
formations of the MDC were denied
effective access to the media. This
was in breach of Section 155(2)(d) of
1
the Constitution and Part XXIB of the
1
Electoral Act .
9. Investigation Committees
The
Zimbabwe
Human
Rights
Commission was obliged to establish
special investigation committees for
every province, to assist police liaison
officers in investigating cases of
1
political violence or intimidation . No
such committees were established.
10. The Election Adjudicators
Challenges to National Assembly
election results must be taken to the
Electoral Court, the judges of which
are High Court judges assigned by the
Chief Justice. The President appointed
six new High Court judges on the 15th
July without the Prime Minister’s
consent, thus violatingSchedule 8 of
1
the Constitution .
Page 12
In
conclusion,
South
Africa
understands the costs of political
oppression and human rights abuses,
but we are nowbenefiting from 19
years of Constitutional supremacy and
respect for the rule of law. As a nation
we should look beyond our borders,
and extend to the region the same
commitment and passion we have
invested in our own country.
It is essential to take a moral stand for
Zimbabwe. Pressure must be put on the
South African government to pressurize
SADC, to challenge the Zimbabwe election
results on the grounds that the elections were
unconstitutional.Ourneighboring states must
be held accountable to the rule of law. If they
are not, SADC’s legitimacy will be
undermined.
Supplied by Doug Coltart
Preliminary Year Class
By Christopher Smith
The first piece of advice I heard for my LLB
was profound and insightful: ‘Don’t shave,
don’t work out, and don’t dress too well. I
know you want to make an impression, but
make sure it’s mediocre. As the semester
continues, lose weight, get a haircut, shave
regularly and smarten up your look. That way,
girls will think, “that Chris Smith guy just gets
a little easier on the eye every day!” When in
fact, you ARE getting easier on the eye every
day.’ I would love to say this strategy has
worked out. It hasn’t. Apparently a dressed up
slimmer toad is still just a frog.
But alas, this was not the only piece of advice
I received. Orientation week drowned me in
considered instruction and knowing looks of
impending pain, looks I hadn’t seen since
moments before I was initiated into a drinking
club. It turns out that I would not in fact have
friends beyond the librarians helping me find
me obscure texts and Leticia serving me
cheap coffee and basic
sustenance.
But I have made friends.
Besides from Leticia, I
don’t particularly like
them, but now that I
have shelter and food,
other
human needs
have to be addressed.
Apologies friends, I do
like you. Or do I? What
is
friendship?
Existential...
One time, I stood with
one of my friends called
Mark
Johnson
Education has continued apace. I have tried to
apply the Orientation week advice, to varying
degrees of success. Someone told me to treat it
like a job. Last job I had was bar work, so
naturally I spend 8 hours frantically working until
2 in the morning, eat some fried food and then
seek refuge in my bed. I think I might have
misinterpreted the advice. Perhaps I should
have read Botha first.
Otherwise, the change in workload from my
undergraduate degree has been noticeable but
manageable. The benefits include making corny
jokes using Latin from Roman legal principles;
the drawbacks, hearing of everyone’s uniquely
onerous workload. I jest. We all deserve some
sympathy for strains of legal academia, and it is
best we cope in the spirit of collegiality, battling
together against the deluge of cases with
conflating names. I still can’t string a sentence
together in Afrikaans, but Law of Property has
given me enough names to write the Boland
phone book.
While I am sure intermediate and final year will
fill the technical void, I feel a gaping hole
remains in my legal repertoire. I have yet to
start my education of the long lunch. How am I
to entertain future clients without a solid
constitution and pickled liver?
I have noticed a lunch deal at the Hussar Grill
that could be good opportunity to test my mettle,
washed down with a magnum of Chateau
Libertas (I am a student still; Meerlust, I am
sure, will come with qualification). If any
students more advanced in this vital legal asset
would wish to educate me, know this: I am an
open vessel for your knowledge.
See you around Kramer, or perhaps even on
the razz. Make mine a double. AS
In Class…
Year
In Class…
‘Don’t be a negative loser,’
said
Intermediate
Year
Professor Paleker in one of our lectures,
advising
not to be
so negative
about
‘Don’t
be ausnegative
loser,’
said Professor
intermediate
year.
Rather,
we
are
to
Paleker in one of our lectures, advising us
focus
on so
thenegative
great and
positive
things
not
to be
about
intermediate
that we
havewelearnt
far.on This
year
year.
Rather,
are tothus
focus
the great
haspositive
taughtthings
us the
of thus
time
and
that importance
we have learnt
management.
courses
is no
far.
This year hasJuggling
taught us8 the
importance
we have all
learnt 8the
value is
of
ofjoke,
time and
management.
Juggling
courses
notime.
joke, No
and longer
we have
all we
learnt
valuewith
of
can
getthe
away
time.
No the
longer
we get
with
studying
nightcan
before
testsaway
or typing
studying
the night
or typing
out opinions
thebefore
nighttests
before
they out
are
opinions
due. the night before they are due.
When you enrol in law school, you are
informed
that enrol
you cannot
a law you
degree
When you
in lawget
school,
are
oninformed
your own.that
Thatyou
nevercannot
made any
sense
in
get a law
first
year,
but
now
it
does!
The
community
degree on your own. That never made
spirit that is in our class is both inspiring and
any sense in first year, but now it does!
amazing, everyone is always readily
The community spirit that is in our class
available to assist each other.
New
is both inspiring and amazing, everyone
friendships are formed everyday and
is always
readilyhas
available
assist
each
meeting
people
never to
been
easier,
other. for
New
friendships
areUbuntu
formed
especially
a shy
guy like me.
is
and
meeting
people
has about
never
noeveryday
longer just
a fanciful
value
we read
easier,and
especially
for but
a shy
guy like
inbeen
textbooks
case law,
something
me. isUbuntu
is no
longer
fanciful
that
actually
alive
and just
wella in
our
value we year
read class.
about in textbooks and
intermediate
case law, but something that is actually
alive and
well
in our
Staying
on top
of the
workintermediate
has proven toyear
be
very
hard this year, and I believe I speak for
class.
everyone when I say the ONLY course that
we
are all on
on top
top of
of has
to be has
Delict.
This is
Staying
the work
proven
to
allbe
thanks
the fortnightly
whichI
very tohard
this year,class
and tests
I believe
leave
usfor
with
no otherwhen
choice
than
keep
speak
everyone
I say
thetoONLY
upcourse
with the
readings.
It would
if all
that
we are all
on topbe
of great
has to
be
the
courses
did
something
similar,
especially
Delict. This is all thanks to the fortnightly
Succession
Civilleave
procedure,
I
class testsand
which
us withthough
no other
may be beaten for expressing such a
choice than to keep up with the readings.
sentiment.
It would be great if all the courses did
The lecturers this year have had a very
something
similar,
Succession
positive
impact
on allespecially
of us; they
are all
and Civil
though something
I may be
inspiring
andprocedure,
have triggered
beaten
expressingPaleker
such a uses
sentiment.
within
us.forProfessor
every
opportunity available to assure us that law
The lecturers
very
school
is not as this
hard year
as wehave
thinkhad
and athat
positive
impact
on
all
of
us;
they
are
we can make it. Jacqueline Yeats has all
inspiringmany
and us
have
something
inspired
to triggered
become corporate
within us.
Paleker
every
lawyers,
whatProfessor
with all the
storiesuses
that she
has
shared. available
She comes
with first-hand
opportunity
to assure
us that law
experience
of what
awaits
law school,
school is not
as hard
as after
we think
and that
and,
a way
she isit.perhaps
not even
aware
we incan
make
Jacqueline
Yeats
has
of,inspired
she assures
us
that
we
do
not
need
to be
many us to become corporate
frightened
anxious.
lawyers, or
what
with all the stories that she
has shared. She comes with firsthand experience of what awaits after
law school, and, in a way she is
perhaps not even aware of, she
assures
that we service
do not need
to be
As
far as us
community
is
frightened or
anxious.
concerned,
when
I first heard
that we have to complete 60
As far
as community
service is
hours
I thought
it was nothing
concerned,
I first heard
and
could allwhen
be completed
in that we
haveyear!
to complete
hours to
I thought it
one
I soon60came
was that
nothing
could
realise
gettingand
60 hours
is, all be
incompleted
fact, not inthat
oneeasy.
year! IWe
soon came
have,
however,
found 60
those
to realise
that getting
hours is, in
few
fact,away
not from
thatKramer,
easy. doing
We have,
community
during the
however, service
found those
few away from
if it were done, when ‘tis done, then ‘twer
week,
quite
enjoyable.
It hasservice during
Kramer,
doing
community
well it were done quickly; for this blow
been
a greatquite
experience
and a It has been a
the week,
enjoyable.
forsooth the be-all and the end-all.
great
to meet new
greatway
experience
andpeople.
a great way to meet
if it were
done, when
‘tis done,
then ‘twere
new people.
Regardless
of who
we became,
or mor
This year has come with many stressful
well it were done quickly; for this blow is
accurately, those aspects of ourselves w
moments as well, however.
For
forsooth the be-all and the end-all.
This year has come with many stressful
left behind in order to be where we ar
example,
the
constant
state
of
moments as well, however. For example,
today, HERE... WE... ARE. Doubtful it stoo
nervousness, and the fear of moots and
Regardless of who we became, or more
the
constant
state
of
nervousness,
and
the
many athose
time as
we, like
spent swimmer
looming exams. Keeping up with all the
accurately,
aspects
of two
ourselves
we
fear
of
moots
and
looming
exams.
that
do
cling
together,
choked
ourare
‘art’. Bu
readings in not easy at all and
left behind in order to be where we
Keeping upforwith
all the readings
in nottoday,
weHERE...
did cling
together.
‘The Inquisitor’
researching
the opinions
has proven
WE...
ARE. Doubtful
it stood aske
easy
at all and
the opinionsmanymany
aiding ‘Th
to
be even
moreresearching
challenging,for
especially
a time aas question,
we, like twoinvariably
spent swimmers
has proven
bewe
even
challenging,
Mute’,
humility
example
fo
given
the fact to
that
havemore
not written
a
that do
clingwhose
together,
chokedset
ouran
‘art’.
But
especially
the fact that we have notwe did
‘The
Commandant’,
in turn
reveale
formal
essaygiven
all year.
cling
together. ‘The who
Inquisitor’
asked
written a formal essay all year.
difficult, invariably
and inescapable
realities t
manycertain
a question,
aiding ‘The
uswhose
all. This
entire
Time goes by so quickly. It feels like
Mute’,
humility
set experience
an example has
for bee
yesterday
all Itstarted
Commandant’,
turn revealed
Time goes when
by so we
quickly.
feels like‘The nothing
short who
of ain comedy-of-errors,
intermediate
year.weLet’s
soldierintermediate
on, for
certain
difficult, and inescapable
realities to
yesterday when
all started
Shakespearean
melodrama
involvin
the
endLet’s
is still
a longon,
way
This entire
experience
been
year.
soldier
for ahead.
the end And
is still aus all.
mistaken
identities
(more has
accurately,
th
always
remember:
be a negative
short competence
of a comedy-of-errors,
a
long way
ahead. ‘Don’t
And always
remember:nothing
mistaken
of our superiors
an
loser!’
Shakespearean
melodrama
involving
‘Don’t be a negative loser!’
contemporaries),
broken hearts
– and fo
By Ngcebo Mabizela
mistaken
(more
accurately,
those identities
of us lucky
enough,
strong the
bonds o
mistaken
competence of our superiors and
friendship.
contemporaries), broken hearts – and for
those of us lucky enough, strong bonds of
But where to from here? Those driven b
friendship.
Final Year
Final Year
Page 12
capital will have their ravenous appetite
sated with money. Others will veer from th
But where to from here? Those driven by
course,
embarking
upon appetites
new journey
MacKramer – A Tragicomedy
capital
will have
their ravenous
“Thou shalt be what thou art promised
untainted
by legal
theory.
Butfrom
to those
sated
with
money.
Others
will
veer
this wh
by the IEB – for several distinctions
‘Thou shalt be what thou art promised course,
would
remain
in
this
field,
and
not on
embarking upon new journeys
you –in for
goodly
stead;
yet I do fear
by stand
the IEB
several
distinctions
operate
herein,
but
intend
to effec
untainted
by
legal
theory.
But
to
those
who
thy you
nature.
It is too
full yet
o’ the
stand
in goodly
stead;
I do milk
fear of
systemic
transformation,
wouldfundamental,
remain in this
field, and
not only
human
kindness.
Thou
wouldst
be
thy nature. It is too full o’ the milk great,
of operate
wouldherein,
say this:but
Afterintend
three/four
years,
to
effect we ar
and artkindness.
not without
ambition
– yetbelack
human
Thou
wouldst
capable, and
changetransformation,
is possible. We
fundamental,
systemic
I hav
‘Theand
Illness’
attendambition
it,” spoke
great,
art nottowithout
– yetthe
forged
by three/four
enemy fire,
in the
wouldbeen
say this:
After
years,
wewilderness
are
Thane
is Kramer.
lack
“Thethat
Illness”
to attend it,’ spoke capable,
and
change
is possible.
havehung i
in the
dark
– when
our very We
futures
the Thane that is Kramer.
beenthe
forged
by enemy
in the
wilderness,
balance.
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have
overcome
CLH, Co
And so, a decision needed making. We
in theLaw,
darkCorps(e)
– when our
veryhave
futures
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– and
managed
And
so, aourselves,
decision needed
making.
asked
oh so long
ago,We
what
the balance.
We have overcome
Con of
to the handle-bars
of this CLH,
Leviathan
asked
oh so we
longwould
ago, what
type ourselves,
of Kramerian
be. ALaw, Corps(e) – and have managed to cling
degree.
We
have
persevered,
whilst th
type
of Kramerian
we would
be. A Inquisitor’,
handful to the handle-bars of this Leviathan of a
handful
became
‘The
memories
of
others
now
gone
persist.
If w
became
‘The Inquisitor’,
embodying
embodying
such milk and
readily such
lapping
degree.
We
have persevered,
whilstallthe
can
overcome
this
–
and
with
we
hav
milk and readilyup
lapping
up knowledge
with
knowledge
with the
viewmemories of others now gone persist. If we
learnt – society (and we ourselves) ca
the
view
to
effecting
to effecting change in our
can overcome this – and with all we have
benefit from this period of hardship, sel
change
our crack’d
crack’d in system.
Morelearnt – society (and we ourselves) can
doubt and trauma.
system.
More
became
‘The
benefit from this period of hardship, selfbecame ‘The Commandant’,
Commandant’, behind a doubt and trauma.
behind a smile silently
But before this wisp o’ idealism can be put t
smile silently shrieking ‘Let
shrieking “Let not light see
the test,
we o’ –idealism
Mutes,
an
not light see my black and But before
this wisp
canInquisitors
be put to
my black and deep desires;
deep desires; yet let that be the Commandants
all
must
face
what
test, we – Mutes, Inquisitors and
yet letthe
that
befears,
which
the iteye
which
eye
when
irrefutably allour- must
greatest
Commandants
face enemy
what is yet
fears,
when
it
is
done,
to
is done, to see’; in a word, irrefutably
November.
And
though
manyyetfear– failur
our
greatest
enemy
see”; in a Sadly,
word, avaricious.
avaricious.
though, November.
and disappointment,
a silent
battle
call stirs
And though many
fear
failure
Sadly,of though,
most the
of us
most
us exemplify
“Never shall suna that
morrow
see!”stirs:
and disappointment,
silent
battle call
exemplifyof ‘The
the Mute’,
persona
persona
our of
‘Never shall sun that morrow see!’
‘The Mute’,
heads
down our
withheads
pens down
at
By Benjamin Harri
with pens
at the –
ready all
– all
the
ready
By Benjamin Harris
characterized bybya asingle
single
characterised
goal:
after
all, all,
goal: passing.
passing.For,
For,
after
MacKramer – A Tragicomedy
Page 13
Intermediate
WHERE TO WORK
Articles at ENS (Edward Nathan Sonnenbergs
With Ayanda Mhlongo
AS: What is your position at ENS? And
your specialisation?
AM: Senior Associate – Corporate
Commercial
AS: How long have you been at ENS? Did
you start you career (ie do your Articles) at
ENS and if yes, why did you opt to do so?
AM: Since 2009, when I started articles.
So this would be my 5th year in total. I was
offered a bursary by ENS while studying,
which also gave me the opportunity to do
my articles at the firm. So, all in all,
probably not the most difficult decision I’ve
ever had to make!
AS: Why do you do what you do? What
made you want to study law, become an
attorney, and practise at a large law firm?
AM: My interest has always been of a
commercially-focused nature. As a result,
there were some times (i.e. the first 2
years of studying law at UCT) where I did
question whether it was what I wanted to
do as a career. Fortunately, once I started
studying the law of contract and corporate
law in my third year I could see clearly
exactly how my LLB related to what I
wanted to do on a daily basis, and
needless to say was properly hooked!
What attracted me to ENS was the variety
of fields that the firm practised in, and the
scale of the companies which practitioners
listed as clients. The opportunity to work
for and with people who dealt with such
massive names in the South African and
global economy was one I simply couldn’t
resist striving for. Importantly, the people I
had met from ENS also struck me as
being the opposite of the stereotypical
one-dimensional, Latin-obsessed boring
attorney, which resonated with my
personality as well.
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AS: Also – why did you choose your
specialisation? What made it stand out for
you?
AM: I have always had an interest in
commercial law, and this grew the more I
found out about the type of work and
clientele a commercial attorney deals with
on a daily basis. However, when I started
at ENS, I wasn’t sure exactly which
specific area of commercial practice I
wanted to specialise in, if any.
Fortunately I was placed in the general
corporate commercial department, and
was lucky enough to also end up in a team
which does an array of different types of
work on a daily basis, which is exactly
what I enjoyed. What I enjoy about the
area of law is that it offers opportunities for
deep specialisation in a particular field, as
well as the opportunity to have broader
expertise in a number of areas.
AS: Do you have time for any other
hobbies and what are they?
AM: I do have time to pursue hobbies
outside of work. I am fortunate enough to
work in a team where balance and having
and maintaining extracurricular interests are
strongly encouraged and we have flexibility
to pursue these interests.
My biggest interest is sport, especially
soccer, cricket and rugby. I take part in the
ENS soccer and cricket teams outside of
work as well.
A couple of colleagues and I also have a
supper club which we are part of, which has
been a great way to discover new
restaurants, foods, wines and styles of
cooking in Cape Town, a city which is
blessed with an abundance of all of these
things.
AS: Tell us a little about how your career
has progressed – what areas have you
worked in, the things you have done,
exciting moments or cases in your career
etc.
AM: I have worked in the Corporate
Commercial Department for all of my time
at ENS. This has given me the opportunity
to develop my career as a practitioner in the
firm with a clear path in mind, and so far all
is going to plan. The most important thing
has been the amount of learning which I
have done and been encouraged to do by
my team and fellow practitioners, and I think
the consistency of being in one practice
area has helped a lot in allowing me to
consolidate this learning and turn it into
deep expertise. It has also allowed me to
build and maintain more meaningful
relationships, both internally within the
department and externally with our clients.
AS: What are the best parts about your job
– both in terms of your specialisations and
in terms of position in the firm?
AM: From a specialisation perspective, I
would say the best part of my job is that I
am always learning. A variety of legislation
and common law principles can find
application in the commercial law sphere,
and when combined with the broad variety
of clients (which of course means a vast
array of transactions and problems!) this is
an area of law which I personally feel will
always stimulate and grow me as an
attorney.
In terms of my position in the firm, I have
enjoyed the extra responsibility and
independence that has come with it.
However, I think it’s important to note that
this comes with experience and proving
yourself and your ability to your colleagues
more than having a particular title.
AS: Any perks? Do you get to travel much?
Any exciting cases?
AM: The firm takes very good care of its
employees, both in terms of remuneration
but also in terms of extracurricular activities
like retreats paid for by the firm and
other firm events such as the year end
function and Family Day. All in all, I think
we get a pretty good deal.
AS: What has improved in the course of
your career as you’ve become more
established?
AM: The biggest improvement would
probably be the ability to translate
theoretical legal principles into succinct,
helpful and practical advice that clients
can understand and use.
AS: And the worst parts?
AM: The hours can sometimes be quite
long, but more often than not your
principal is in the office next door
working just as hard and as late as you
are. It always helps to know that you’re
not in it alone and that everyone on the
team is making sacrifices.
AS: What do you like most about ENS,
from a long term and senior perspective?
(So far we have only chatted to the
CAs.) What, for you, makes it stand out
as a place to work?
AM: The people I work with. To work
with people who are intellectual, highly
motivated and who take a creative,
dynamic approach to solving legal
problems all while maintaining a positive,
supportive work environment with a
(sometimes wicked) sense of humour is
something I enjoy immensely and am
lucky enough to have on a daily basis.
AS: Is there anything else novel, quirky
or exciting about your job or ENS that
you can tell us?
AM: We have an awesome L-shaped
pool table in our coffee lounge. If ever
one needed any incentive to drink coffee
or take an extra 10min off work, there it
is! AS
Belinda Hlatshwayo ,Farai
Chikwanha, Matilda Nengare,
Resheditswe Kgomo, Kevin
Minofu, Safura Abdool Karim,
Benjamin Harris, Kevin Minofu,
Douglas Coltart,
Ngcebo
Mabizela,
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This issue of Altum
Sonatur was made possible
through the generous
sponsorship of Edward
Nathan Sonnenbergs
the subject of Facebook and
the law, and specifically liability
for things posted on Facebook
(some of which are discussed
elsewhere in this issue of
Altum Sonatur).
Although the question of
whether the University would
have recourse to the courts if it
were aggrieved by [posts on]
the
UCT
Confessions
Facebook page is up in the air,
there seems to be more
certainty where the aggrieved
party is a natural person. One
of the more relevant cases is
Dutch
Reformed
Church
Vergesig
Johannesburg
Congregation and Another v
Rayan Soknunan t/a Glory
Divine World Ministries, which
was decided in 2012 by
Satchwell J of the South Gauteng High
Court.
In Dutch Reformed Church, the applicant
and respondent were two Christian
organisations whose relationship soured
after the Dutch Reformed Church sought
to sell unwanted premises owned by the
Church and rented by Glory Divine, to a
Muslim organisation because the latter
made an offer that GloryDivine could not
beat. Outraged, Glory Divine’s owners
and members took to the Internet to
conduct a campaign calling into question
the morality of the Dutch Reformed
Church’s leadership and comparing the
sale to the betrayal of Jesus Christ by the
biblical villain Judas Iscariot for ‘thirty
pieces of silver’. This campaign was
waged most aggressively on a Facebook
page named for Glory Divine.
After finding that the respondent was the
true owner of the Facebook page, and
discussing the difficulty of establishing
the true identity of posters or the veracity
of their posts, Sacthwell J held that the
creator or the administrator of a
Facebook page had control of that page
and was thus responsible for the
regulation of, and ultimately liable for, what
is posted on it. It would seem to me that in
the case of an anonymous posting page
like
UCT
Confessions—where
the
administrators not only have the ordinary
powers of removing inappropriate posts,
but are indeed the ones who actively
upload these posts, their liability is
irrefutable. An individual who is identified in
one of the ‘confessions’, a Truman, and
who could prove the delictual elements of
defamation would have an action at least
against the owners or administrators of the
page … if they could find them.
For the most part, UCT Confessions and its
cousins at other campuses are harmless.
At best, they offer a good platform for
people to be open; to air those things that
trouble the waters of their souls without the
fear of being marked with a scarlet A for the
rest of their university careers. And while
these pages may at times test the bounds
of acceptable expression (and sometimes
set the bounds scandalously aflame,
people who are offended would do well just
to stay away. It’s just not that important.
And to the confessors and Trumans: for
Voet’s sake, don’t do dumb things! AS
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Sonatur Committee 2014 are now
open!
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Altum submit your CV, unofficial
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before 31 August 2013
Page 15
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