Just Us Under a Tree

Tanveer and Johan have a very special guest: the founder of Johan’s old employer Natural Justice - Dr Kabir Bavikatte. Kabir unpacks his theories of biocultural rights - an interesting, original and different conceptualisation of property. Kabir reflects on multiple relationships that one might have to property and the land, and how this should affect how we view property rights. He notes law's trend towards recognising relationships that communities have with their land - including in cases such as Maledu and Baleni - and argues that we can all learn from this.

Frequent guest host Tanveer Jeewa is now a Master of Laws. In this episode, she joins Johan to unpack her brilliant dissertation on whether courts should expropriate land in large and complex eviction matters. Spoiler alert: the Constitutional Court can do better - and should! Final mix and master by Will Shoki. Tanveer's thesis can be downloaded here: https://open.uct.ac.za/handle/11427/33726.

Johan and Elisha are joined by our friend, Kevin Minofu, for a discussion focusing on South Africa's (black African) immigrant communities and the legal forms xenophobia takes. Kevin describes a number of policy proposals which formed part of an emergent current of political xenophobia... and the shadowy network of online trolls and sponsored campaigns supporting it. We trade Twitter war-stories and vow to post another day. The team then has an in-depth discussion of the hearing and previews judgment in Residents of Industry House v Minister of Police, a case where the Court considers the rights of the SAPS to cordon off certain blocks of the inner city to conduct warrantless searches and otherwise harass communities the City of Johannesburg has decided to 'clean up'. Many are calling it the most important case of 2020. Judgment is expected soon. Tune in to Just Us Under a Tree. Mix and master generously donated by our friends at Kuyasha Media.

'President of Amici Twitter' Khaya Sithole joins Johan and Elisha for a deep dive into former President Zuma's appearances, or lack thereof, at the Zondo Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector. Khaya first explains the origins of the Commission and summarises some allegations against President Zuma before setting out the numerous attempts to have President Zuma appear at the Zondo Commission. The discussion then turns to the Zondo Commission's application to the Constitutional Court to compel President Zuma to appear before it, and the judgment the CC gave granting the order. We conclude with Khaya's thoughts on the way forward for the Commission. Final Mix and master generously donated by friend of the pod, Dan Corder.

Dan, Johan and Elisha are once again joined by Mbekezeli Benjamin of Judges Matter. https://www.judgesmatter.co.za/ We begin with a deep dive into the current make-up of the Court… who is on the bench, outstanding vacancies, and how we expect them to be filled. Mbekezeli helps us think about Acting Justices, the DCJ’s state capture commission and developments in the complaints against judges Hlophe, Parker, and Makhubele. How should judicial discipline work? In further news, Elisha outlines recent triumphs of democracy in Malawi and threats to democracy in the United States. Then, an argument preview: Dan covers an interesting lease dispute between the University of Johannesburg and Auckland Park Theological Seminary. Finally, two of the messiest areas in our law: Johan recaps Sithole, where the court again confronts the apartheid-era marriage system. Dan then recaps the 7-hour Qwelane argument, on how to deal with homophobic hate-speech. Final mix and master and outro by Daniel Basckin. Check out Dan's new EP: 'What Do You Hear Underwater' https://ditto.fm/what-do-you-hear-underwater

Elisha is finally back! He's joined by Tanveer, Jason and Johan and they start by discussing the latest developments at the Constitutional Court including who is acting on the bench, whether DCJ Zondo is on leave, the type of matters the CC is hearing, and the apex court in the Zoom era. Then, a quick preview of the upcoming Sithole matter before recapping the Court's first arguments over Zoom: first, whether the Public Protector can subpoena the Commissioner of SARS; second, the Centre for Child Law's challenge to section 10 of the Births and Deaths Registration Act with Advocate Jatheen Bhima (who argued the matter for CCL). Finally, judgment recaps: Jason explains the recent Chisuse judgment on citizenship for persons born outside of South Africa to South African parents, Tanveer explains the latest round of Tasima messiness, and Johan revels in the Penwill dispute over legal costs. Final mix and master by Riley Pam-Grant.

Tanveer comes back to guest host with Dan and Johan. They start by discussing the partial revival of the Constitutional Court's website - noting the Court's refusal to hear the DA's direct access application to challenge the Disaster Management Act - before previewing new matters in September including Gauteng's appeal regarding the mayorship of Tshwane, a dispute regarding the Nazareth Baptist Church (Shembe), and a trio of matters involving the Public Protector (Bosasa, SARS, and Baloyi). Next, judgments! Tanveer explains the sensibility of the Beadica judgment, Dan discusses Telkom's failed appeal against the City of Cape Town, and Johan celebrates AMCU's win in Ngululu. Finally, Dan leads a discussion on the Chief Justice's comments on Palestine, Tanveer notes SASSA's unsuccessful stand against asylum seekers receiving social grants, and Dan updates us on the complaints against the Public Protector and Judge President Hlophe. Final mix and master by Daniel Basckin.

In December 2019, the Constitutional Court dismissed an appeal against a conviction of rape under the common law doctrine of common purpose with two concurring judgments. In reaching this conclusion, the ConCourt was guided by the submissions of amici curiae, including the Centre for Applied Legal Studies (CALS). Johan sat down with Sheena Swemmer and Advocate Lerato Phasha from CALS to discuss their incredible intervention. Pupil Advocate and long-time friend of the show Letlhogonolo Mokgoroane joined with general comments on the amici's intervention and the judgments. Final mix and master by Daniel Basckin.

Dan is joined by guest host Tanveer Jeewa, a former ConCourt clerk. They begin by discussing the unexpected retirement of Justice Froneman, developments in judicial discipline complaints, and the JSC process generally. They then discuss big legal matter in the news, including the 'De Beer' High Court judgment which ruled that lockdown regulations are unconstitutional, the US Supreme Court ruling that LGBT employees are protected by sex discrimination laws, and developments at the NPA. Next is judgment recaps. First, they discuss the EFF's failed appeal against an interim interdict of the implementation of the Public Protector's findings and take a deep dive into the court's decision on when it is appropriate to award personal costs orders. Then they consider New Nation's success in challenging South Africa's electoral system. Finally, previews. But there are no previews because there are no set downs.

During the middle of coronavirus lockdown Elisha sat down with Kimera Chetty, a legal researcher with the Helen Suzman Foundation, to discuss the role of the legislature in ensuring representation, participation and accountability. The conversation zooms in on oversight over police and army misconduct, both by the legislature and watchdog bodies such as IPID and the Military Ombud.

Elisha, Johan and Dan are joined by Mbekezeli Benjamin of Judges Matter to update you on judicial governance under lockdown, including the relationship between the Office of the Chief Justice and the Department of Justice. We bring to your attention the Chief Justice’s special Easter service: https://www.youtube.com/watch?v=PCvGzvH5zhQ. We then focus on the role of law in the Covid lockdown. Dan covers the appointment of former ConCourt Justice Kate O’Regan as COVID-19 designate judge to oversee the government’s information-gathering for a contact-tracing database. We then provide an overview of some of the legal challenges to the state’s lockdown measures. These include the threatened challenge to the liquor ban, Afriforum and Solidarity’s challenge of affirmative action provisions on the tourism fund, lawyers having trouble with permits to travel and appear in court, a challenge to the closure of mosques without exception, the sale of baby clothes, the regulation of police and military misconduct, and Durban and Cape Town’s efforts to demolish informal settlements. Bhavna Ramji of the Casual Workers Advice Office makes an appearance to explain their successful effort to compel employers to apply to the Disaster Fund set up to supplement the government’s Unemployment Insurance Fund on behalf of their employees. Mbekezeli then helps us all unpack the many controversies and conflicts in the governance of Western Cape High Court since Deputy Judge President Goliath filed a JSC complaint against Judge President John Hlophe. We also unpack a shadowy paragraph of DJP Goliath’s complaint and questions it raises about judicial appointments and transformation. We end by briefly discussing Justice Edwin Cameron’s appointment as Chief Judge of the Judicial Inspectorate for Correctional Services and why this is so important in the era of Covid-19. Edwin Cameron’s fight for humane prisons: https://www.newframe.com/edwin-camerons-fight-for-humane-prisons/. Final mix and master by Daniel Basckin. Outro music: ‘Monday Jam’ performed by Daniel Basckin, Jude Kenrick and Dominic Hurd (feat Zehir Omar).

On our much awaited first special episode of the year, Elisha Kunene chats to Indian lawyer and scholar Gautam Bhatia about writing, activism, and the role of law in society. Crucial listening in the time of COVID-19. A truncated version of this interview was published by Africa Is a Country: https://africasacountry.com/2020/05/what-are-courts-for Read the Indian Constitutional Law and Philosophy blog: https://indconlawphil.wordpress.com/

Elisha, Johan and Dan are joined by Jason Mitchell to bring everyone up to speed on the legal developments around the coronavirus lockdown, including correspondence from the Chief Justice and applications by Hola Bona Foundation and Fair and Equitable Society before touching on the appointment of South Africa's first Solicitor General. Dan, Elisha and Johan then catch everyone up on the latest on the Constitutional Court bench's composition, before looking at some of the Court's recent judgments on union majoritarianism (AMCU II), common purpose and rape (Tshabalala), the privacy of children witnesses in criminal proceedings (Centre for Child Law), the forfeiture of proceeds of crime (Botha), the jurisdiction of the Labour Court (Phillip Morris), union constitutions and membership (Lufil), petroleum and mootness (Normandien), and the ex lege removal and reinstatement of SANDF members (Maswanganyi). They end by previewing the three cases on the ConCourt's role for term two: Sithole, Sibuyi, and Qwelane.

Elisha and Johan speak with Zikhona Ndlebe, Alison Tilley, and Christopher Oxtoby of Judges Matter about the importance of judges, how they're appointed, and trends in South Africa's judiciary. Produced by Riley Pam-Grant.

In our first special episode, Elisha and Johan interview Advocate Michael Bishop of the Legal Resources Centre on the how the landmark Mwelase judgment came to be.

After a long recess, Elisha, Dan and Johan are back for episode seven of Just Us Under a Tree. After some discussion on new appointments to the Court, they briefly preview two cases set down for 2020, before recapping the host of judgments handed down since we last recorded, including: judgments on spanking (Freedom of Religion SA), the firing of Ministers (President v DA), mining rights (Magnificent Mile), suing schools (Moodley), pardons and pensions (Masemola), Afrikaans (Kanse), unlawful detention (De Klerk), and land tenure (Senqu). They wrap up discussing some general legal news including whether the State Attorney's office needs a Solicitor General and the appointment of all-male Senior Counsel to prosecute state capture.

It's been a busy ConCourt recess: Elisha, Johan and Dan catch up on all the developments with the Public Protector, unpack some of the legal stories in the news, and preview some exciting cases forthcoming in the ConCourt. William Shoki joins to explain India's decision to revoke the special status of Jammu and Kashmir. Produced by Riley Pam-Grant.

Alistair Dey Van Heerden swings by to recap some major judgments in competition law, Bhavna Ramji returns following NUMSA’s victory in the ConCourt, and Dan Mafora reappears to help Elisha and Johan preview some upcoming hearings plus all things newsworthy. Produced by Riley Pam-Grant.

Elisha and Johan are joined by Lubabalo Mabhenxa and Dan Mafora to discuss some blockbuster judgments from the ConCourt, the rest of Africa and even the United States. And perhaps they lose track of time. Produced by Riley Pam-Grant.

Elisha and Johan host special guests Bhavna Ramji of the Casual Workers Advice Office and Emanuel Waddell from Yale Law School to recap arguments in AMCU's challenge to union majoritarianism in retrenchments, preview AMCU's case from next term on res lis pendens, and compare notes between South African and US labour law. Produced by Riley Pam-Grant.