Abstract

The Alien Tort Statute (“ATS”) of 1789 was part of the first law to be enacted by the First Congress of the USA. Its original purpose was primarily to remedy harms suffered by aliens at the hands of US citizens. For two centuries it remained dormant. Then it became a vehicle to advance human rights.

Sosa v Humberto Alvarez-Machain 542 US 692 (2004) was the first of four ATS cases decided by the Supreme Court of the United States (SCOTUS). Kiobel v Royal Dutch Petroleum Co 569 US 108 (2013) followed and with it, the court limited the application of the ATS. It coined the term “touch and concern” whereby only those with a nexus with the US could pursue grievances. It also enforced the principle of extraterritoriality. Jesner v Arab Bank, PLC 584 US ___ (2018); 138 S Ct 1386 (2018) brought further clarity by imposing clear limits on which parties may be defendants in ATS cases. Nestlé USA, Inc v John Doe I; Cargill, Inc v John Doe I 593 US ___ (2021); 141 S Ct 1931 (2021) precluded future cases of human rights abuses against corporations when allegations can only be made that general corporate decision-making occurred in the US. In future, plaintiffs will have to establish a strong domestic nexus with the US for a claim under the ATS to be successful.

Eventually the statute lost its attractiveness for foreign plaintiffs wanting to settle in US courts human rights scores committed in foreign places. Yet some aggrieved Namibians tried to pursue a case against Germany in an attempt to extricate monetary compensation from the former colonial power as restitutional compensation on the basis of the provisions in the ATS. Their attempts failed. Compensation for German atrocities committed during the colonial era in German South West Africa was pursued by the Namibian government outside of the courts.

This article illustrates that, at the hand of decisions by the highest court in the US involving particular groups of foreigners, legal avenues using the ATS as a basis have now been closed.

Abstract

The traditional focus of both legal practice and legal education is on the substantive and procedural law itself, and how it applies to a set of facts presented. This the practitioner or law lecturer commonly calls “the case”: whether it be a real-life case in legal practice, a decided case in the law reports, or a hypothetical case presented to students in a problem-solving exercise. What is frequently overlooked or under-emphasised is that there are people behind every case, who bring into the lawyer-client relationship their own peculiar history, personality, hopes, fears, economic realities, home and work contexts, and much more; and that these personal factors often impact significantly on the issues, both legal and non-legal, that are presented by the client to the lawyer. Indeed, these personal factors can have a significant bearing on how the lawyer advises and represents the client, and so to discount them could amount to a manifest disservice to the client.

This article considers in turn the interrelated concepts of preventative lawyering, therapeutic jurisprudence and relational lawyering, which have in common a recognition of the importance of giving attention to the human factor in context: to consider the need to counsel the client to optimise arrangements and minimise risk; to practise in a humane and empathetic manner, giving attention to psycho-social as well as legal issues, and with a view to promoting the general wellbeing of the client; to attend to building rapport and trust with the client in order to establish a mature professional relationship, with consequent improved outcomes for the client. The article also stresses the importance of educating law students and practitioners on the values and skills needed to promote these objectives, with a particular focus on the formation of professional identity.

Abstract

Increased attention to vocational education in both law firms and in law schools in South Africa can improve the skills base in the legal services sector by upskilling junior attorneys. The location for this series of interventions should be in law practice and in law schools. We situate our discussion in the global literature of corporate lawyering, including some studies on legal services in Brazil. This contribution sketches the corporate lawyering vocational education which South African law graduates receive from law schools during an undergraduate law degree and the ad hoc practical training they may subsequently receive at law firms. Finally, it identifies and develops several options for improving South Africa’s corporate lawyering skills base, including experiential learning, the use of case studies, law school teaching partnerships with practitioners, and expanded clinical offerings

Abstract

The initial response to the early stages of the lockdown precipitated by Covid-19 was for institutional legal education to shift to an online teaching and learning platform, which exposed many barriers to online teaching and learning within the socio-economic fabric of South Africa as well as the rise of academic dishonesty in online assessments. Three broad groups of academic dishonesty in assessments are highlighted. The first being test-cheating and collusion (referred to as “crowdsourcing”), in which two or more students work together to complete an assessment. The second takes the form of plagiarism which is advanced by the practice of “copying-and-pasting” in assessments. Finally, academic dishonesty can occur in the form of “contract cheating” where the assistance of third parties is solicited in completing an assessment. Although academic dishonesty is not something new, Covid-19 created the perfect breeding ground for academic misconduct in which not only the online teaching and learning environment was a situational temptation ready for exploitation but the pandemic itself impacted students’ day-to-day lives and academic success largely due to the socio-economic conditions in which students found themselves. The contribution considers potential responses to academic dishonesty and takes a moralist stance to addressing academic dishonesty by drawing on principles from Aristotelian value-based ethics. In doing so, it is found that a moralist stance is not necessarily out of step with the South African Qualification Authority’s learning outcomes for the Bachelor of Laws degree (LLB) and that of the values and requirements for successful participation in the legal profession. In this, ethics is practiced and reinforced by past conduct, which is reflective of future conduct. Therefore, institutional legal education should respond decisively and effectively to academic dishonesty which may include applying traditional disciplinary actions but should be precipitated by a pervasive and integrative approach to ethics education within the curriculum, which includes general ethics (or value-based ethics), legal ethics (a sub-branch of general ethics and reflective of professional accountability) and finally also techno-ethics (which relates to the ethical conduct expected of students within an online environment). It is only by equipping students with the necessary competencies and ethical courage that they will have the moral fortitude to overcome the temptation of academic misconduct in one small individual victory at a time.

Abstract

Following the Constitutional Court’s landmark judgment in University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services 2016 6 SA 596 (CC), significant legal reforms were introduced to the South African debt collection landscape in 2018. Amendments to the Magistrates’ Courts Act were aimed at combatting abuses in the popular emolument attachment order (“EAO”) process, where EAO debtors had suffered significant exploitation at the hands of unscrupulous creditors and their collection agents. These important amendments were aimed at requiring judicial oversight during the issuing of new EAOs. Correcting the undisputed devastation wrought by past and continuing EAO abuse remains the responsibility of individual debtors, their employers, and organisations like the Legal Practice Council. Efforts in this regard are severely hampered by the prevailing lack of transparency and the ambiguity of legislation associated with the EAO mechanism. Specifically, legislation calls on the enforcement of EAOs “until the relevant judgment debt and costs have been paid in full”, while no definition or explanation is tendered to elucidate what this entails. As a result, EAO debtors remain at the mercy of their creditors, who are able to escalate even minor debts into substantial EAO debt collections by the unilateral addition of interest, collections fees, and legal costs. Several important legal developments related to this issue have occurred since the relevant Constitutional Court judgment and subsequent legislative amendments. This article will consider these developments to establish if the position of EAO debtors, exploited post issuing of an EAO, has improved in recent years.

Abstract

A creditor is often very careful to file a claim against the insolvent estate of his debtor due to the fear of contribution. A person who became the creditor of another only after the sequestration of that debtor’s estate is often uncertain about his legal position vis-à-vis the insolvent estate. This investigation looks at the duty of creditors of an insolvent estate to contribute with particular focus on the position of the sequestrating creditor. The view is taken that this creditor is always obliged to contribute, regardless of whether he has proved his claim, withdrawn his claim, or whether he is a concurrent, preferent, or secured creditor. In certain circumstances he may even be the only creditor to pay contribution. Regarding the conclusion of contracts by an insolvent after the sequestration of his estate, it is pointed out that certain contacts are valid and enforceable and others voidable by the trustee, rather than void. Among other things, the view is taken that the Master of the High Court must first determine under section 24(5) of the Insolvency Act 24 of 1936 which part of the insolvent’s salary or earnings are not or will not be necessary for the support of the insolvent and those dependent upon him, before the insolvent estate will be entitled to any payment from his salary. Prior to such determination, the insolvent has no obligation to contribute to the estate and the trustee’s consent is then unnecessary when the insolvent concludes contracts in respect of these earnings or the fruits thereof. It is the duty of the trustee to take steps to request a determination from the Master concerning the insolvent’s “surplus” salary. If the trustee fails in this duty, he, the estate and the creditors must bear the consequences. There is no authority that such a determination by the Master has retroactive force.