“Tell me and I forget, teach me and I may remember, involve me and I learn." -Xun Kuang
#SS35: SABWiL Shadowing Insights
On the 16 November 2023 I had an invaluable opportunity of shadowing Advocate Ori Ben-Zeev at the Constitutional Court of South Africa, Braamfontein Johannesburg.
I refer to this as an invaluable opportunity because a lot of aspirant legal professionals only see the inside of a courtroom for the first time when doing their articles which in my opinion can be overwhelming. Also, advocates are extremely busy people, but they still manage to give back by allowing learners to shadow them while they work.
Logistically, it is not hard to find the Constitutional Court as it is located close to the Gautrain. The security guards are welcoming and assist you in finding your way around the building.
The main objective of the shadowing program is for aspirant legal professionals to gain a realistic understanding of what practicing attorneys and advocates do every day. The program also helps students to enhance their academic experience.
The matter was brought before the Constitutional Court on appeal from the Supreme Court of Appeal and was enrolled to start at 10h00 am. One of the things that caught my attention was how punctual the parties were. Everyone arrived in court early and were engaging one another cordially. This reminded me of the saying “play the ball not the man.”
Closer to the commencement of the trial, counsel for both parties went to introduce themselves to the Justices in chambers and returned back into the courtroom. This for me confirmed what everyone says about the profession i.e. it is a noble profession.
I was also intrigued by how well put together and organized the Court Clerks and Support staff were and how they observe the court decorum. When you enter the court, you bow as you enter the court room or if you’re in the court room stand up and bow and then start with your submissions. When taking a comfort break bow, walk to the door, turn around and bow again.
Seeing the eight Justices walk in was an ow-so real moment for me. I had always watched these erudite Justices on the television and seeing them in person brought everything into perspective and re-assured me that I am meant to practice law.
Seeing how advocates argue a matter helped me to develop an understanding of the law in practice. The shadowing programme has a positive impact on both the Legal Professional and the learner as it allows those in practice to impart to future generation of attorneys and advocates the skills needed to be successful and is a good mechanism for developing a working and lasting relationship between both parties.
This experience has taught me the importance of preparation and harnessing one’s listening skills. In preparation for trial, parties go through volumes of documents and case law. During your argument you must factor in questions from the Justices and should be able to answer in a manner that advances your clients case/argument.
Because the matter has not been finalised, I will not go into details regarding the merits of the case.
The issue to be argued was premised around the question whether the legislative powers of municipalities as contemplated under section 43 (c) and section 151 of the Constitution includes the power to pass a by-law that restricts the transfer of property if that property does not comply with the laws of that municipality.
The Respondent contended that such by-laws infringe their right under section 25 of the Constitution.
“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
This experience has taught me the importance of preparation and harnessing one’s listening skills. In preparation for trial, parties go through volumes of documents and case law. During your argument you must factor in questions from the Justices and should be able to answer in a manner that advances your clients case/argument.
Because the matter has not been finalised, I will not traverse details regarding the merits of the case.
The issue to be argued was premised around the question whether the legislative powers of municipalities as contemplated under section 43 (c) and section 151 of the Constitution includes the power to pass a by-law that restricts the transfer of property if that property does not comply with the laws of that municipality.
The Respondent contended that such by-laws infringe their rights under section 25 of the Constitution.
“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
The Applicant alleged that the municipalities do have legislative powers under the constitution and that the impugned by-law constitute limited deprivation of property rights. This argument brought in section 36 of the Constitution I.e., limitation of rights in terms of the law of general application.
Counsel for the first Applicant cited case law that supported the argument that the limitation was reasonable and justifiable. The second Applicant did however stress that there is not enough case law available to support the Applicants argument on the “reasonably necessary restrictions” of the Respondents right under section 25 of the Constitution. This inevitably led to the Justices asking more questions and counsel for the Applicant bore the burden of convincing the court why they should find in the Applicants favour.
Both parties presented compelling arguments that propelled me to do further reading on the subject matter in order to gain a better understanding. Their arguments were logically structured.
Before attending the shadowing programme, I did not know that Municipalities derive their powers from the Constitution. In as much as law students/graduates are expected to know the law, theory and practice differ to a certain degree. It is only when you practice something that you gain a better understanding of it. Same can be said during a shadowing programme that most of the Constitutional provisions and legal principles make more sense when we hear an advocate argue, citing case law and applying the provisions and principles to a real-life matter.
Listening to this case I also learned that municipalities have the right to exercise any power concerning a matter that is reasonably necessary for, or incidental to, the effective performance of its functions. This means that municipalities have the authority to exercise their powers over matters that fall outside the scope of the powers conferred by the Constitution but because such matters are closely related to the effective exercise of their functions, they are considered to be part of the municipalities functional area over which they have authority.
I look forward to reading the judgement once it has been delivered. As mentioned above, counsel for the Applicant stressed that there is not enough case law on the matter, therefore, this judgment will set precedence for similar cases.
CONCLUSION
This whole experience taught me the importance of not boxing myself into a single field of law. Although this case was premised on section 25 of the Constitution, it also touched on Administrative Law, the interpretation of statutes and other aspects of law that a person wishing to practise law should appraise themselves. Malibongwe!
Nombulelo Gumede
5th SABWiL Deputy President
LLB Graduate