Igama lamakhosikazi malibongwe. 
SABWiL Alumni Insight Series : Herewith sparkles that perchance may adorn our journey in law. Alumna Cathrine Makwara studies the judgment rendered in the SABWiL Human Rights Court  #s25 SHRC2 and pens this prose.  

The content in the video clip of #s25 SHRC2 Property Rights Judgment can thoroughly be summarized in the quotation by Ludwing van Beethoven where he remarks that, “Don’t only practice your Art, but force your way into its secrets”. This gives a lucid picture of how the Art of Advocacy is two-folded, that is, a good brief combined with a good oralist, who seeks to go beyond what any regular counsel would do. SHRC Chief Justice Adv. Anthea Platt SC, with SHRC Deputy Chief Justice Adv. Samantha Martin concurring, poured out a fully comprehensive judgment in relation to the application of section 25(3) of the Constitution of the Republic of South Africa juxtaposed to free and equitable compensation in line with the context relayed in the facts. Drawing from the judgment and content thereof, the following is a detailing of the lessons learnt for one to be holistic counsel.

Heads of Argument

One of the lessons from the judgment is that “you are as good as your brief”. The first time anyone engages with one’s argument in practice is through Heads of Argument. Some say that this is a “make it or break it” situation as in most cases it will determine how strong your argument is or whether it will see the light of day in court. The SHRC Justices reinforced that care and caution must be used in dealing with the Heads of Argument from its structure, aesthetics in terms of formatting, grammar as well as coherence in the flow of the argument. This is of important as sometimes one can have a good argument but failure to use punctuation well or spelling might show a lack of care and concern from the legal practitioner which might also make the justices irritated and lose interest.

Authorities

I also learnt the importance of distinguishing between persuasive and binding authority. The SHRC Chief Justice Adv. Anthea Platt SC cautioned counsel against reliance on too much foreign cases if the same principles are dealt with in local cases in line with the judicial precedence doctrine. The reasoning behind this is that many judges might not have access to those foreign cases which might create loopholes in the counsel’s argument as the presiding judge may not be able to verify the principle. This thus means that a counsel should go a step further and may have the foreign case they are referring to availed to the Court to lessen the burden on the presiding judge to look for it.

Knowledge of the facts, Signposting and Pacing

The last lesson I wish to talk about is the importance of knowledge of facts, signposting and pacing when delivering oral arguments. SHRC Deputy Chief Justice Adv. Samantha Martin reiterated that it is always important to ensure that the presiding coram is following your arguments in their entirety. This can be implemented very well by a clinical knowledge of facts, signposting and pacing. Knowledge of facts will assist in the formulation of arguments as well as in answering questions as one will always have to go back to the facts. Signposting is also crucial as it will direct the judges as to where and what the counsel is referring to for example counsel might say, “I would like to direct the judges to Annexure B paragraph 3” of the case file to point out exactly where they are. However, these skills would bear no fruit if a bad choice in pacing is adopted. A “too quick” or “too slow” pacing might hinder the judges from following the argument. Hence, a moderate approach should be implemented.

All in all, the #s25 SHRC judgment was enlightening, and I hope that I will be able to utilize the critical skills highlighted by the learned SHRC Justices.

Golden nuggets abound in the #s25 SHRC2 Judgment, accessible on our channels or now at #s25 SHRC2 Judgment – SABWiL YouTube .   Contemplate this judgment streaming on our SABWiL YouTube Channel and others. Discover insights pertinent to your own journey.  

The annual SHRC court commemorates the signing of the Constitution of South Africa on 10 December 1996 by our first democratic President Nelson Mandela in Sharpeville, Soweto.  In issue in the second annual SABWiL Human Rights Court, held in December 2017,  is the  entrenched Right to Land and compensation for expropriation. Wathint’abafazi wathint’imbokodo.  What do you think?  Please share any thoughts in the commentary below.

Alumna Cathrine Ashley Makwara

SABWiL ALUMNI

27 December 2021

Vuk’uzenzele.

Ubuntu.