Authority holds that ss 38(2) and 50(1) of POCA, where they provide for preservation and forfeiture orders to be made in respect of property constituting the proceeds of unlawful activities, are not confined to cases where the activities constitute organised crime, money laundering and criminal gang activities or other offences created in terms of POCA. The sections may be invoked where the property in question constitutes the proceeds of a common law offence, such as fraud.
Source: SAFLII
Tuesday, November 30, 2010
Thursday, November 25, 2010
Blasphemy Resolution Passes U.N. Committee
A resolution combating the "vilification of religions" was adopted Tuesday by a United Nations committee, but religious freedom advocates who oppose the measure say support for it continues to diminish. The resolution by Islamic countries is scheduled to be considered by the U.N. General Assembly in December.
The vote -- 76 yes, 64 no, and 42 abstentions -- received fewer affirmative votes than last year, said Freedom House, a human rights group that has worked against the resolution. "We are disappointed that this pernicious resolution has passed yet again, despite strong evidence that legal measures to restrict speech are both ineffective and a direct violation of freedom of expression," said Paula Schriefer, director of advocacy at Freedom House. The U.S. Commission on International Religious Freedom, an independent bipartisan panel, said the measure's diminished support shows some countries think the resolution can do more harm than good. "Religious intolerance is best fought through efforts to encourage respect for every individual's human rights, not through national or international anti-blasphemy laws," said USCIRF Chair Leonard Leo.
Days before its passage, the Organization of the Islamic Conference relabeled the resolution as condemning "vilification of religions" instead of "defamation of religions," but U.S. officials and advocates continued to oppose it. "We are disappointed to see that despite our efforts and discussions on this resolution, the text once again seems to take us farther apart, rather than helping to bridge the historical divides," said John F. Sammis, an official of the U.S. Mission to the U.N., told the committee
considering the resolution. "Most importantly, the resolution still seeks to curtail and penalize speech."
Source: Huffington Post
The vote -- 76 yes, 64 no, and 42 abstentions -- received fewer affirmative votes than last year, said Freedom House, a human rights group that has worked against the resolution. "We are disappointed that this pernicious resolution has passed yet again, despite strong evidence that legal measures to restrict speech are both ineffective and a direct violation of freedom of expression," said Paula Schriefer, director of advocacy at Freedom House. The U.S. Commission on International Religious Freedom, an independent bipartisan panel, said the measure's diminished support shows some countries think the resolution can do more harm than good. "Religious intolerance is best fought through efforts to encourage respect for every individual's human rights, not through national or international anti-blasphemy laws," said USCIRF Chair Leonard Leo.
Days before its passage, the Organization of the Islamic Conference relabeled the resolution as condemning "vilification of religions" instead of "defamation of religions," but U.S. officials and advocates continued to oppose it. "We are disappointed to see that despite our efforts and discussions on this resolution, the text once again seems to take us farther apart, rather than helping to bridge the historical divides," said John F. Sammis, an official of the U.S. Mission to the U.N., told the committee
considering the resolution. "Most importantly, the resolution still seeks to curtail and penalize speech."
Source: Huffington Post
Mpuma health department, police in court for corruption
Eight ambulance officials and five policemen in the Middleburg are facing corruption charges for receiving bribes to call tow-truck drivers after an accident and before calling an ambulance, says Mpumalanga police. "When they got the alert that an accident has happened they will phone a tow-truck driver before they phone the ambulance.., and then they get a kick-back from the tow-truck driver," said spokesman Captain Leonard Hlathi. The five policemen, aged between 28 and 42, were arrested on Wednesday and appeared in the Middleburg Magistrate's Court on the same day facing charges of corruption.
They were granted bail of R1, 500 each and their case was postponed to January 14 for further investigation. Hlathi said seven of the eight ambulance officials, including four women, aged between 31 and 47, were arrested on Wednesday and the eighth one was arrested on Thursday morning. They are employed by the department of health to receive calls from the public or the police about an accident and then dispatch an ambulance to the scene, he said. The group would be appearing before the Middleburg Magistrate's Court on Thursday also facing corruption charges.
The Mpumalanga department of health was not immediately available for comment. "There is a lot of competition between tow-truck drivers to get to the scene [of an accident] first... they paid ambulance officials and the police between R700 and R1, 800 per call to be called first [about] an accident." He did not know how long this corruption had been going on for. "We still need to check when it all started... but we have been investigating this for three months. We have a lot of evidence."
Police and the ambulance officials were not working together in this activity, he said. "They were working uniquely." He said no arrests of tow-truck drivers had been made and he would not speak about possible charges that they would face. "It was different [tow-truck] companies that were paying the bribes." He would not comment on the possibility that lives were lost because tow-truck drivers were informed of an accident before an ambulance.
Source: Times Live
They were granted bail of R1, 500 each and their case was postponed to January 14 for further investigation. Hlathi said seven of the eight ambulance officials, including four women, aged between 31 and 47, were arrested on Wednesday and the eighth one was arrested on Thursday morning. They are employed by the department of health to receive calls from the public or the police about an accident and then dispatch an ambulance to the scene, he said. The group would be appearing before the Middleburg Magistrate's Court on Thursday also facing corruption charges.
The Mpumalanga department of health was not immediately available for comment. "There is a lot of competition between tow-truck drivers to get to the scene [of an accident] first... they paid ambulance officials and the police between R700 and R1, 800 per call to be called first [about] an accident." He did not know how long this corruption had been going on for. "We still need to check when it all started... but we have been investigating this for three months. We have a lot of evidence."
Police and the ambulance officials were not working together in this activity, he said. "They were working uniquely." He said no arrests of tow-truck drivers had been made and he would not speak about possible charges that they would face. "It was different [tow-truck] companies that were paying the bribes." He would not comment on the possibility that lives were lost because tow-truck drivers were informed of an accident before an ambulance.
Source: Times Live
Sunday, November 21, 2010
Huge profits from local land deals
A prominent businessman in Mpumalanga, who is linked to premier David Mabuza, has emerged as the central figure in questionable municipal land deals worth R45-million. The Sunday Times has established that town planner Patrick Chirwa used his company, Pacific Breeze Trading 474, to snap up private plots on the cheap and sell them to municipalities at exorbitant prices.
Chirwa is also the owner of Sisonke Development Planners in the province. At the time that most of the deals took place, the premier, Mabuza, was MEC for agriculture and land administration and served as a director of two companies - Above Average Trading Corporation 44 and 45 - with Chirwa. In one deal, a plot was bought for R3.1-million and sold to the Mbombela municipality for R11-million in one day.
At the time, Chirwa was a board member of the Mbombela Housing Association whose mandate included identifying properties for "social integration" on behalf of the council. He is now the chairman of the association. In another deal, Pacific Breeze bought a plot in the Emakhazeni municipality for R1.6-million and transferred it to the council for R17.4-million. Deeds and company records show that between 2007 and 2008 Pacific Breeze bought four smallholdings from private landowners for a total of R7.6-million and sold them to the government for R44.4-million - pocketing a profit of R36.8-million.
The purchases by the municipalities were all financed through the provincial government. Chirwa confirmed the details of the transactions and admitted to making "huge profits". But he claimed these were not "unseemly" because property developers took "large risks". The massive price hikes, which took place during a global property slump, were "due to normal market forces" for farm land "earmarked for development purposes", he said.
Pacific Breeze is not the only entity through which Chirwa made money out of lucrative government deals. The members of Pacific Breeze - Chirwa, Harrington Dlamini and Robert Burwise - also own a company called Lusito Development Specialists. In 2006, Lusito lodged an application to develop the very same properties bought and sold by Pacific Breeze into a "social housing" project. This project ran into stiff opposition from local landowners, who formed a pressure group, the White River Concerned Citizens Committee.
Committee member Stefanus Labuschaghne told the Sunday Times he had attended a residents' meeting in 2006 convened by Burwise, who claimed there were "very powerful politicians behind this development" and that "we won't be able to stop it". Another resident, Paul Clark, said Burwise "told me personally we will never stop this because there were 'very powerful forces' behind it".
Chirwa denied exploiting his political connections and positions to clinch the deals. He said his relationship with Mabuza was professional. "We have no business association whatsoever," he said, and Mabuza "had no influence on the decision of the Department of Human Settlements to finance the purchase of the land". He threatened to sue the Sunday Times, saying: "The questions raised ... are already defamatory." Mabuza, through a spokes-man, denied that he had benefited from the deals - or through any of his business links with Chirwa.
Asked if the Department of Human Settlements planned to investigate the sales for irregularities, provincial head David Dube said "proper processes were adhered to when purchasing the properties and there is nothing currently that warrants any legal action".
Source: Times Live
Chirwa is also the owner of Sisonke Development Planners in the province. At the time that most of the deals took place, the premier, Mabuza, was MEC for agriculture and land administration and served as a director of two companies - Above Average Trading Corporation 44 and 45 - with Chirwa. In one deal, a plot was bought for R3.1-million and sold to the Mbombela municipality for R11-million in one day.
At the time, Chirwa was a board member of the Mbombela Housing Association whose mandate included identifying properties for "social integration" on behalf of the council. He is now the chairman of the association. In another deal, Pacific Breeze bought a plot in the Emakhazeni municipality for R1.6-million and transferred it to the council for R17.4-million. Deeds and company records show that between 2007 and 2008 Pacific Breeze bought four smallholdings from private landowners for a total of R7.6-million and sold them to the government for R44.4-million - pocketing a profit of R36.8-million.
The purchases by the municipalities were all financed through the provincial government. Chirwa confirmed the details of the transactions and admitted to making "huge profits". But he claimed these were not "unseemly" because property developers took "large risks". The massive price hikes, which took place during a global property slump, were "due to normal market forces" for farm land "earmarked for development purposes", he said.
Pacific Breeze is not the only entity through which Chirwa made money out of lucrative government deals. The members of Pacific Breeze - Chirwa, Harrington Dlamini and Robert Burwise - also own a company called Lusito Development Specialists. In 2006, Lusito lodged an application to develop the very same properties bought and sold by Pacific Breeze into a "social housing" project. This project ran into stiff opposition from local landowners, who formed a pressure group, the White River Concerned Citizens Committee.
Committee member Stefanus Labuschaghne told the Sunday Times he had attended a residents' meeting in 2006 convened by Burwise, who claimed there were "very powerful politicians behind this development" and that "we won't be able to stop it". Another resident, Paul Clark, said Burwise "told me personally we will never stop this because there were 'very powerful forces' behind it".
Chirwa denied exploiting his political connections and positions to clinch the deals. He said his relationship with Mabuza was professional. "We have no business association whatsoever," he said, and Mabuza "had no influence on the decision of the Department of Human Settlements to finance the purchase of the land". He threatened to sue the Sunday Times, saying: "The questions raised ... are already defamatory." Mabuza, through a spokes-man, denied that he had benefited from the deals - or through any of his business links with Chirwa.
Asked if the Department of Human Settlements planned to investigate the sales for irregularities, provincial head David Dube said "proper processes were adhered to when purchasing the properties and there is nothing currently that warrants any legal action".
Source: Times Live
Tuesday, November 16, 2010
South African government violates Constitution at the UN
During action on the draft resolution on extrajudicial, summary or arbitrary executions, the Committee engaged in a debate over and ultimately approved by a vote of 79 in favour to 70 against with 17 abstentions an amendment removing “sexual orientation” as one of the discriminatory reasons that killings had been committed and warranted investigation.
Thursday, November 11, 2010
Asia Bibi: Pakistan: Blasphemy: Death Sentence
Asia Bibi, a Christian woman and mother of five, has been sentenced to death for "blasphemy" in Pakistan, the first conviction of its kind for a woman, the AFP is reporting.
The case originated in Pakistan's Punjab province when a group of female Muslim laborers complained that Bibi had made derogatory comments about the Prophet Mohammed. According to CNN, the women alleged that Bibi said, "the Quran is fake and your prophet remained in bed for one month before his death because he had worms in his ears and mouth. He married Khadija just for money and after looting her kicked her out of the house." A police investigation was opened, which led to a trial and guilty verdict for Bibi. The AFP reports: "Sentencing her to hang, Judge Naveed Iqbal "totally ruled out" any chance that Asia was falsely implicated and said there were "no mitigating circumstances", according to a copy of the verdict seen by AFP."
Bibi is proclaiming her innocence and says that she is being persecuted for her Christian beliefs in a Muslim majority nation, says the Telegraph. Human rights groups are condemning the verdict, and her husband, Ashiq Masih, told the AFP that he would appeal the verdict.
Last July, two Christian brothers were shot dead after being convicted of blasphemy, the BBC reported.
Source: Huffington Post
The case originated in Pakistan's Punjab province when a group of female Muslim laborers complained that Bibi had made derogatory comments about the Prophet Mohammed. According to CNN, the women alleged that Bibi said, "the Quran is fake and your prophet remained in bed for one month before his death because he had worms in his ears and mouth. He married Khadija just for money and after looting her kicked her out of the house." A police investigation was opened, which led to a trial and guilty verdict for Bibi. The AFP reports: "Sentencing her to hang, Judge Naveed Iqbal "totally ruled out" any chance that Asia was falsely implicated and said there were "no mitigating circumstances", according to a copy of the verdict seen by AFP."
Bibi is proclaiming her innocence and says that she is being persecuted for her Christian beliefs in a Muslim majority nation, says the Telegraph. Human rights groups are condemning the verdict, and her husband, Ashiq Masih, told the AFP that he would appeal the verdict.
Last July, two Christian brothers were shot dead after being convicted of blasphemy, the BBC reported.
Source: Huffington Post
Monday, November 8, 2010
Vodacom boosts first-half profit, lifts dividend
Cellphone operator Vodacom said on Monday first-half earnings rose 38,4% and lifted its interim dividend 64%, due to the removal of one-time charges. The dominant cellphone operator in Africa's biggest economy, Vodacom has been overshadowed on the continent by MTN Group and faces new competition from former shareholder Telkom, which last month launched its own mobile unit.
Also on Monday, Vodacom said it had put on hold its plans for a listing in Tanzania. It is majority owned by Britain's Vodafone, which has so far failed to its implement plans to use the South African company as a springboard to the continent.
Vodacom said headline earnings per share for the six months to end-September rose to 303 cents from 218,7 cents, and at the top end of its own forecast range of 285 cents to 307 cents. Headline EPS is the main gauge of earnings in South Africa and strips out certain one-time and financial items.
Last year it was hit by a R3,2-billion write-down at its network and satellite services unit Gateway, acquired in 2008. The company said it expected full-year capital spending to be lower at R6,8-billion and that it had bought back R959-million of its shares as it looks to increase returns to shareholders.
Source: Mail & Guardian -- Reuters
Also on Monday, Vodacom said it had put on hold its plans for a listing in Tanzania. It is majority owned by Britain's Vodafone, which has so far failed to its implement plans to use the South African company as a springboard to the continent.
Vodacom said headline earnings per share for the six months to end-September rose to 303 cents from 218,7 cents, and at the top end of its own forecast range of 285 cents to 307 cents. Headline EPS is the main gauge of earnings in South Africa and strips out certain one-time and financial items.
Last year it was hit by a R3,2-billion write-down at its network and satellite services unit Gateway, acquired in 2008. The company said it expected full-year capital spending to be lower at R6,8-billion and that it had bought back R959-million of its shares as it looks to increase returns to shareholders.
Source: Mail & Guardian -- Reuters
Friday, November 5, 2010
Cloud over murder statistics
A filing cabinet packed with about 100 postmortem reports of murders and other unnatural deaths, which were not referred to the police for investigation, has been discovered at the Salt River mortuary in Cape Town. The discovery was made last year and brought to the attention of Mzwandile Petros, the former Western Cape police commissioner, now the commissioner in Gauteng. It is understood that he did not act until health authorities confirmed the existence of the reports.
It has been reported that Petros is heading a task team that is conducting a countrywide investigation into the validity of crime statistics, particularly with regard to inquest and murder dockets. His latest appointment will raise eyebrows, given his lack of prompt action in solving the Salt River mortuary mystery and his failure to launch an inquiry into the alleged manipulation of crime statistics at police stations in the Western Cape.
The Salt River post-mortems are understood to date back three years. Although the bodies were removed for burial or cremation, the cases were not investigated as they were not registered on the police crime administration system. Police liaison officers were sent to the mortuary earlier this year to address the problem and by last month the final post-mortem reports were registered with the police, sources said.
Many of the names of the deceased were found recorded in the reports but some identities were unknown. A similar situation arose at Tygerberg mortuary, where a smaller cache of post-mortem reports was found, but these were later registered with the police. The issue of how to prevent a recurrence was raised at recent meetings of the health department (which runs the two mortuaries), the police and justice officials. Petros was handed a detailed report on the issue after the matter had been raised at previous meetings. However, the police have still not established who put the post-mortem reports in the cabinet, or why they were not referred to the police.
It is believed these cases could have fallen through the cracks, as bodies are sometimes removed from Groote Schuur and Tygerberg hospitals and taken to mortuaries without police obtaining particulars. The task team that Petros has been appointed to lead is reported to be analysing 31 253 inquest dockets opened in the nine provinces in the 2009-2010 financial year. The probe is intended to reveal whether police stations filed deaths incorrectly under "inquest" instead of "murder".
In September Nathi Mthethwa, the police minister, announced that violent crime had declined last year, with murders down 8,6%. But police say the nationwide probe could raise questions about the authenticity of these figures. Last year former Western Cape police commissioner Lennit Max accused Petros of ignoring a letter he had written to him and the former acting national commissioner, Tim Williams, calling for an inquiry into the information he had been given that crime statistics were being manipulated at police stations in Paarl, Paarl East, Mbekweni, Wellington and Oudtshoorn.
The Independent Complaints Directorate eventually investigated the matter, and said earlier this year that Petros had stalled the release of the long-awaited report. According to leaked internal police reports, Petros and one of his former assistants, Anwa Dramat, now head of the Hawks, were informed at least three years ago that police stations in the province were manipulating crime statistics.
Petros claimed that one of the reports was a fake and refused to discuss the others. Neither Petros nor the Western Cape police had responded to questions from the Mail & Guardian at the time of going to press.
Source: Mail & Guardian
It has been reported that Petros is heading a task team that is conducting a countrywide investigation into the validity of crime statistics, particularly with regard to inquest and murder dockets. His latest appointment will raise eyebrows, given his lack of prompt action in solving the Salt River mortuary mystery and his failure to launch an inquiry into the alleged manipulation of crime statistics at police stations in the Western Cape.
The Salt River post-mortems are understood to date back three years. Although the bodies were removed for burial or cremation, the cases were not investigated as they were not registered on the police crime administration system. Police liaison officers were sent to the mortuary earlier this year to address the problem and by last month the final post-mortem reports were registered with the police, sources said.
Many of the names of the deceased were found recorded in the reports but some identities were unknown. A similar situation arose at Tygerberg mortuary, where a smaller cache of post-mortem reports was found, but these were later registered with the police. The issue of how to prevent a recurrence was raised at recent meetings of the health department (which runs the two mortuaries), the police and justice officials. Petros was handed a detailed report on the issue after the matter had been raised at previous meetings. However, the police have still not established who put the post-mortem reports in the cabinet, or why they were not referred to the police.
It is believed these cases could have fallen through the cracks, as bodies are sometimes removed from Groote Schuur and Tygerberg hospitals and taken to mortuaries without police obtaining particulars. The task team that Petros has been appointed to lead is reported to be analysing 31 253 inquest dockets opened in the nine provinces in the 2009-2010 financial year. The probe is intended to reveal whether police stations filed deaths incorrectly under "inquest" instead of "murder".
In September Nathi Mthethwa, the police minister, announced that violent crime had declined last year, with murders down 8,6%. But police say the nationwide probe could raise questions about the authenticity of these figures. Last year former Western Cape police commissioner Lennit Max accused Petros of ignoring a letter he had written to him and the former acting national commissioner, Tim Williams, calling for an inquiry into the information he had been given that crime statistics were being manipulated at police stations in Paarl, Paarl East, Mbekweni, Wellington and Oudtshoorn.
The Independent Complaints Directorate eventually investigated the matter, and said earlier this year that Petros had stalled the release of the long-awaited report. According to leaked internal police reports, Petros and one of his former assistants, Anwa Dramat, now head of the Hawks, were informed at least three years ago that police stations in the province were manipulating crime statistics.
Petros claimed that one of the reports was a fake and refused to discuss the others. Neither Petros nor the Western Cape police had responded to questions from the Mail & Guardian at the time of going to press.
Source: Mail & Guardian
Wednesday, November 3, 2010
COP GETS JAIL FOR MURDERING SWAZI ACTIVIST
A former Mpumalanga police reservist will go to jail for 20 years for the murder of the deputy president of the Swaziland-based People's United Democratic Movement. Dumisani Maduna, 33, was sentenced in the Nelspruit circuit of the North Gauteng High Court on Wednesday. He killed Dr Gabriel Thandokuhle Mkhumane, 48, by shooting him execution-style at the Entokozweni Dam near KaNyamazane on April 2 2008. He also raped a woman who was with Mkhumane three times, and stole the couple's cellphones and the doctor's wallet. He later tried unsuccessfully to draw money at an ATM from Mkhumane's account.
Judge Legodi Phatudi described Maduna as a merciless and cold-blooded murderer. “You had no choice but confess due to the seriousness of the case. The reason for not getting a life sentence is that you pleaded guilty, you were under the influence of alcohol when the crime was committed, and you did not plan the crime," he said.
Maduna was sentenced to six months for assault, 12 years for rape, 10 years for robbery with aggravating circumstances, 20 years for murder, three years - suspended for five years - for attempted theft, six years for kidnapping, three years - suspended for five years - for illegal possession of a firearm, and 18 months for illegal possession of live ammunition. All the sentences will run concurrently, which means he will spend 20 years in jail. But Pudemo president Mario Masuku said the organisation was convinced that Mkhumane had been assassinated and that the rape and robbery were an attempt to disguise the hit as a straightforward crime. “Just because Maduna confessed, the police decided to close the case. Why did he follow Mkhumane and why he did not hand in his service pistol after knocking off duty? Justice was not done here. The Mkhumane family will discuss this matter and we will decide what to do next,” he said outside court.
Mkhumane was a Swazi revolutionary opposed to the absolute monarchy headed by Mswati III. He had been living in exile for 24 years, in Mozambique, Cuba and South Africa. At the time of his death, he was living in White River, where he worked as a paediatrician in Themba Hospital. "A family has lost a father, Swaziland will never get another leader of his calibre, and South Africa has also lost a well-qualified doctor,” said Masuku.
Source: Capital
Judge Legodi Phatudi described Maduna as a merciless and cold-blooded murderer. “You had no choice but confess due to the seriousness of the case. The reason for not getting a life sentence is that you pleaded guilty, you were under the influence of alcohol when the crime was committed, and you did not plan the crime," he said.
Maduna was sentenced to six months for assault, 12 years for rape, 10 years for robbery with aggravating circumstances, 20 years for murder, three years - suspended for five years - for attempted theft, six years for kidnapping, three years - suspended for five years - for illegal possession of a firearm, and 18 months for illegal possession of live ammunition. All the sentences will run concurrently, which means he will spend 20 years in jail. But Pudemo president Mario Masuku said the organisation was convinced that Mkhumane had been assassinated and that the rape and robbery were an attempt to disguise the hit as a straightforward crime. “Just because Maduna confessed, the police decided to close the case. Why did he follow Mkhumane and why he did not hand in his service pistol after knocking off duty? Justice was not done here. The Mkhumane family will discuss this matter and we will decide what to do next,” he said outside court.
Mkhumane was a Swazi revolutionary opposed to the absolute monarchy headed by Mswati III. He had been living in exile for 24 years, in Mozambique, Cuba and South Africa. At the time of his death, he was living in White River, where he worked as a paediatrician in Themba Hospital. "A family has lost a father, Swaziland will never get another leader of his calibre, and South Africa has also lost a well-qualified doctor,” said Masuku.
Source: Capital
EU expresses concern over Côte d'Ivoire vote count
European Union (EU) observers raised concerns on Tuesday about ballot counting in Côte d'Ivoire's first election since civil war erupted in the country eight years ago, criticising authorities for delaying the release of results and barring monitors from some centres where votes were being tabulated.
The head of the EU's 120-strong observer mission, Cristian Preda, said the failure to release any significant tally so far was fuelling tension among a nervous electorate. However, Preda said the EU had detected "no indications of fraud" in Sunday's poll and praised it for having been carried out peacefully.
Yves Tadet, an electoral commission official, said he was unaware of any observers being denied access to counting centres, but said they could have been turned away for failing to have proper paperwork. The commission has blamed logistical problems and heavy rains for delaying results for two days. Tadet said a final tally could be expected on Wednesday, as scheduled.
The vote is seen as a critical turning point in Côte d'Ivoire's history. Many hope it will restore stability and reunify the country, but some worry it could spark violence if political rivals fail to accept the outcome. Deepening fears over possible unrest prompted some businesses to close temporarily on Tuesday or send workers home early, and highways in skyscraper-lined Abidjan were void of usual traffic jams. The head of the armed forces, General Phillipe Mangou, went on state television to urge residents to resume normal life and stay calm.
The ballot has pitted 65-year-old President Laurent Gbagbo against 13 challengers, including 68-year-old opposition leader Alassane Ouattara, who is wildly popular in the pro-rebel north, as well as 76-year-old ex-president Henri Konan Bédié, who was toppled in 1999 in the nation's first coup d'état. If no candidate wins a simple majority, the top two finishers will face off in a second round on November 28.
Preda said EU monitors spread across the country had noted minor problems at polling stations during Sunday's poll. About 80% of stations opened hours later than stipulated because materials were not ready, not all electoral members were present in some, and one-tenth of ballot boxes were not properly sealed. However, he said the EU was generally satisfied with the vote itself and was preoccupied with the critical phase of monitoring the vote count. "The electoral commission, though, had refused to give 14 observers access to centres where ballots were being collated in several parts of the country," he said. Those included the crucial headquarters of the electoral commission's in the main city, Abidjan, where national results would be released.
EU observers at the electoral headquarters confirmed separately that since counting began on Sunday night, they had been unable to enter the room where national results were being tabulated. "It's an act that we deplore and there is no rational explanation for it," Preda said. "Everything must be transparent." Tadet, the electoral official, said that although monitors could observe counting at polling stations and regional centres across the country, they were not allowed to observe the final tabulation of results at the independent electoral commission's headquarters. Preda said that his observers were still being refused entry in some counting centres on Tuesday morning because authorities had told them "there is nothing to see".
The U.S.-based Carter Centre also said one of its monitors had been told to leave a vote counting centre in the capital, Yamoussoukro. But others had no problems and the mission generally praised the electoral process, as did the African Union. The Carter Centre said voter turnout had been at about 74% -- higher than expected. The vote had been delayed for five years because of disputes over voter rolls. Gbagbo, whose five-year mandate officially expired in 2005, stayed in office claiming elections were impossible because of a 2002-2003 war that left rebels in control of the north.
Côte d'Ivoire has been struggling to hold the vote since a 2007 peace deal broke years of political stalemate, leading to the dismantlement of a United Nations-patrolled buffer zone that had marked the divide between the rebel-held north and the government-loyalist south.
Source: Mail & Guardian
The head of the EU's 120-strong observer mission, Cristian Preda, said the failure to release any significant tally so far was fuelling tension among a nervous electorate. However, Preda said the EU had detected "no indications of fraud" in Sunday's poll and praised it for having been carried out peacefully.
Yves Tadet, an electoral commission official, said he was unaware of any observers being denied access to counting centres, but said they could have been turned away for failing to have proper paperwork. The commission has blamed logistical problems and heavy rains for delaying results for two days. Tadet said a final tally could be expected on Wednesday, as scheduled.
The vote is seen as a critical turning point in Côte d'Ivoire's history. Many hope it will restore stability and reunify the country, but some worry it could spark violence if political rivals fail to accept the outcome. Deepening fears over possible unrest prompted some businesses to close temporarily on Tuesday or send workers home early, and highways in skyscraper-lined Abidjan were void of usual traffic jams. The head of the armed forces, General Phillipe Mangou, went on state television to urge residents to resume normal life and stay calm.
The ballot has pitted 65-year-old President Laurent Gbagbo against 13 challengers, including 68-year-old opposition leader Alassane Ouattara, who is wildly popular in the pro-rebel north, as well as 76-year-old ex-president Henri Konan Bédié, who was toppled in 1999 in the nation's first coup d'état. If no candidate wins a simple majority, the top two finishers will face off in a second round on November 28.
Preda said EU monitors spread across the country had noted minor problems at polling stations during Sunday's poll. About 80% of stations opened hours later than stipulated because materials were not ready, not all electoral members were present in some, and one-tenth of ballot boxes were not properly sealed. However, he said the EU was generally satisfied with the vote itself and was preoccupied with the critical phase of monitoring the vote count. "The electoral commission, though, had refused to give 14 observers access to centres where ballots were being collated in several parts of the country," he said. Those included the crucial headquarters of the electoral commission's in the main city, Abidjan, where national results would be released.
EU observers at the electoral headquarters confirmed separately that since counting began on Sunday night, they had been unable to enter the room where national results were being tabulated. "It's an act that we deplore and there is no rational explanation for it," Preda said. "Everything must be transparent." Tadet, the electoral official, said that although monitors could observe counting at polling stations and regional centres across the country, they were not allowed to observe the final tabulation of results at the independent electoral commission's headquarters. Preda said that his observers were still being refused entry in some counting centres on Tuesday morning because authorities had told them "there is nothing to see".
The U.S.-based Carter Centre also said one of its monitors had been told to leave a vote counting centre in the capital, Yamoussoukro. But others had no problems and the mission generally praised the electoral process, as did the African Union. The Carter Centre said voter turnout had been at about 74% -- higher than expected. The vote had been delayed for five years because of disputes over voter rolls. Gbagbo, whose five-year mandate officially expired in 2005, stayed in office claiming elections were impossible because of a 2002-2003 war that left rebels in control of the north.
Côte d'Ivoire has been struggling to hold the vote since a 2007 peace deal broke years of political stalemate, leading to the dismantlement of a United Nations-patrolled buffer zone that had marked the divide between the rebel-held north and the government-loyalist south.
Source: Mail & Guardian
Tuesday, November 2, 2010
What can be done to make the dispute resolution process more rewarding?
In many instances a party who has suffered some form of loss at the hands of another does not have access to the documents, recordings or data which would enable that aggrieved party to enforce its rights against the perpetrator of the harm.
In the past the aggrieved party would institute action and would subsequently seek access to these documents, recordings or data in the course of the discovery procedures provided for in the court rules. This may mean that the true grounds of the action for recovery are only revealed at a fairly late stage once the discovered documents, recordings or data have been considered. Amendments to the pleadings (resulting in additional costs) may be necessary. At worst the discovery process may make it clear that the wrong party has been sued, and that the aggrieved party ought to have looked elsewhere to make good its loss.
These documents, recordings or data are only available once litigation is at an advanced stage. They may expose solid grounds for liability on the part of the Defendant. Had access to these documents, recordings or data been available at the outset, there would have been a strong incentive for the Defendant to settle the claim without compounding the harm by forcing the aggrieved party to embark on an expensive and time consuming process of enforcing its rights.
In the words of Cameron JA in his dissenting judgement in UNITAS HOSPITAL v VAN WYK AND ANOTHER 2006 (4) SA 436 (SCA) “Litigation involves massive costs, time, personnel, effort and risks. Where access to a document can assist in avoiding the initiation of litigation, or opposition to it, the objects of the statute suggest that access should be granted.”
The statute to which Cameron JA refers is the Promotion of Access to Information Act 2 of 2000 (PAIA). This Act is aimed at giving effect to every person’s right to access to information expressed in Section 32 of the Constitution. Section 32 of the Constitution provides:
Everyone has the right of access to:
(a) any information held by the State; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
An aggrieved party can therefore utilise the mechanism provided for in PAIA with a view to accessing documents, computer files, tape or video recordings, email messages and the like.
A decision regarding whether to employ the procedure embodied in PAIA must be made at an early stage of any dispute resolution process. Once legal proceedings (in the form of an action or application launched in a court of law) have commenced, the parties to that legal process are restricted to utilising the applicable court procedures and cannot then seek to apply for access in terms of PAIA.
An application for access to information under PAIA can be directed either at a public body such as a government department or a state owned enterprise, or at a private body such as a natural person or commercial corporate entity. The requirements to be met by an applicant when applying for access to information in the hands of a private body are more onerous, since in addition to meeting the requirements of an application directed at a public body, the applicant must show that the record in question is required for the exercise or protection of a right. The applicant need not disclose the reason for its request, where this is directed at a public body.
There are certain limited grounds on which either a public body or a private body may legitimately refuse to give access, and these include that access would involve unreasonable disclosure of personal information about a third party, or if the record in question contains trade secrets of a third party or information supplied in confidence by a third party which could reasonable be expected to put that third party at a disadvantage in contractual negotiations or commercial competition. Other grounds relate to the endangerment of the life or physical safety of individuals or of security of buildings, transport systems or other property. An obvious exception is a record which is privileged in legal proceedings since one cannot access records under PAIA which would protected from discovery in terms of the normal rules applicable in legal proceedings.
The obvious advantage of the PAIA process is that the aggrieved party will obtain the documentation much sooner. This fact has a number of important implications.
Very often documents, recordings or computer data are lost or destroyed over time. Obtaining copies at an early stage will avoid any prejudice arising from this type of incompetence. If the aggrieved party obtains all relevant records at an early stage it will be better placed, at the outset, to assess the prospects of success of litigation and to focus on the areas most likely to found a solid case at the trial, thus saving time and money. The lawyers representing the aggrieved party in any legal processes which may follow will be armed with the appropriate knowledge required for accurate pleading of the case, meaning that it should not be necessary to make amendments to the pleadings at a later stage, again saving time and money. The prospective Defendant will be in a position, at an early stage, to more accurately assess their prospects of successfully defeating the claim. If the evidence is such that they must accept that there is a high probability of a court finding against them, they are more likely to accede to a reasonable settlement of the claims, knowing that the aggrieved party is also in possession of this evidence.
Our Courts are very concerned that the provisions of PAIA not be used in circumstances where it is more appropriate to utilise the court procedures which have been in existence far longer. Our Courts do not allow what is termed as “a fishing expedition”.
The applicant would have to show that the records requested are required because they will afford the applicant with a substantial advantage or that there is an element of need. The fact that the records can be obtained from another source may be raised to substantiate a refusal by a private body. It would be helpful, in order to meet this requirement to show, for example, that the documents are necessary in order for the applicant to identify the correct Defendant and/or in order to properly formulate its claim.
When an aggrieved party contemplates proceedings aimed at the enforcement of its rights it would be well advised to first consider whether the mechanism provided for in PAIA can and ought to be employed before launching into formal court proceedings.
ENS - Edward Nathan Sonnenbergs
Janine Lee
South Africa
November 2 2010
Source: Lexology
In the past the aggrieved party would institute action and would subsequently seek access to these documents, recordings or data in the course of the discovery procedures provided for in the court rules. This may mean that the true grounds of the action for recovery are only revealed at a fairly late stage once the discovered documents, recordings or data have been considered. Amendments to the pleadings (resulting in additional costs) may be necessary. At worst the discovery process may make it clear that the wrong party has been sued, and that the aggrieved party ought to have looked elsewhere to make good its loss.
These documents, recordings or data are only available once litigation is at an advanced stage. They may expose solid grounds for liability on the part of the Defendant. Had access to these documents, recordings or data been available at the outset, there would have been a strong incentive for the Defendant to settle the claim without compounding the harm by forcing the aggrieved party to embark on an expensive and time consuming process of enforcing its rights.
In the words of Cameron JA in his dissenting judgement in UNITAS HOSPITAL v VAN WYK AND ANOTHER 2006 (4) SA 436 (SCA) “Litigation involves massive costs, time, personnel, effort and risks. Where access to a document can assist in avoiding the initiation of litigation, or opposition to it, the objects of the statute suggest that access should be granted.”
The statute to which Cameron JA refers is the Promotion of Access to Information Act 2 of 2000 (PAIA). This Act is aimed at giving effect to every person’s right to access to information expressed in Section 32 of the Constitution. Section 32 of the Constitution provides:
Everyone has the right of access to:
(a) any information held by the State; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
An aggrieved party can therefore utilise the mechanism provided for in PAIA with a view to accessing documents, computer files, tape or video recordings, email messages and the like.
A decision regarding whether to employ the procedure embodied in PAIA must be made at an early stage of any dispute resolution process. Once legal proceedings (in the form of an action or application launched in a court of law) have commenced, the parties to that legal process are restricted to utilising the applicable court procedures and cannot then seek to apply for access in terms of PAIA.
An application for access to information under PAIA can be directed either at a public body such as a government department or a state owned enterprise, or at a private body such as a natural person or commercial corporate entity. The requirements to be met by an applicant when applying for access to information in the hands of a private body are more onerous, since in addition to meeting the requirements of an application directed at a public body, the applicant must show that the record in question is required for the exercise or protection of a right. The applicant need not disclose the reason for its request, where this is directed at a public body.
There are certain limited grounds on which either a public body or a private body may legitimately refuse to give access, and these include that access would involve unreasonable disclosure of personal information about a third party, or if the record in question contains trade secrets of a third party or information supplied in confidence by a third party which could reasonable be expected to put that third party at a disadvantage in contractual negotiations or commercial competition. Other grounds relate to the endangerment of the life or physical safety of individuals or of security of buildings, transport systems or other property. An obvious exception is a record which is privileged in legal proceedings since one cannot access records under PAIA which would protected from discovery in terms of the normal rules applicable in legal proceedings.
The obvious advantage of the PAIA process is that the aggrieved party will obtain the documentation much sooner. This fact has a number of important implications.
Very often documents, recordings or computer data are lost or destroyed over time. Obtaining copies at an early stage will avoid any prejudice arising from this type of incompetence. If the aggrieved party obtains all relevant records at an early stage it will be better placed, at the outset, to assess the prospects of success of litigation and to focus on the areas most likely to found a solid case at the trial, thus saving time and money. The lawyers representing the aggrieved party in any legal processes which may follow will be armed with the appropriate knowledge required for accurate pleading of the case, meaning that it should not be necessary to make amendments to the pleadings at a later stage, again saving time and money. The prospective Defendant will be in a position, at an early stage, to more accurately assess their prospects of successfully defeating the claim. If the evidence is such that they must accept that there is a high probability of a court finding against them, they are more likely to accede to a reasonable settlement of the claims, knowing that the aggrieved party is also in possession of this evidence.
Our Courts are very concerned that the provisions of PAIA not be used in circumstances where it is more appropriate to utilise the court procedures which have been in existence far longer. Our Courts do not allow what is termed as “a fishing expedition”.
The applicant would have to show that the records requested are required because they will afford the applicant with a substantial advantage or that there is an element of need. The fact that the records can be obtained from another source may be raised to substantiate a refusal by a private body. It would be helpful, in order to meet this requirement to show, for example, that the documents are necessary in order for the applicant to identify the correct Defendant and/or in order to properly formulate its claim.
When an aggrieved party contemplates proceedings aimed at the enforcement of its rights it would be well advised to first consider whether the mechanism provided for in PAIA can and ought to be employed before launching into formal court proceedings.
Janine Lee
South Africa
November 2 2010
Source: Lexology
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