litigation – SABWiL

To Pupil – Advocacy

SABWiL Alumni — Sun, 11 Dec 2022 08:59:45 +0000

Self - actualisation in the legal profession

Law and Life Matters S1 E4 - a summation

Courageous Academic Journey

While studying for the Bachelor of Laws degree with University of South Africa, Mthombisi Mthimkulu was employed full time and that took most of his time. He had to make sacrifices by waking up early as three am to study and prepare to work afterward. This was not easy as he had to do this routine on a daily basis until he finished his studies.

University Days and Challenges

During University days Mthimkulu recalls that he liked the ladies. This created a challenge for him, since relationships require time. He had to juggle balancing between relationships, studies and his employment. Mthimkulu realised that he would not manage all this at once. He had to make the difficult decision of cutting out one of the aforementioned. He then reminded himself that one of the significant reasons that brought him to the institution was to obtain his law degree, this is how he realised and decided that relationships should take a back seat and he must focus his time on his law degree and employment.

The Decision To Do Pupilage

In the period of his studies Mthimkulu mentions that he was exposed to various attorneys. Thus he had a clear picture of what attorneys do in their day to day work from his neighbour who was an attorney at that time. However, knowing various aspects of what attorneys do on a daily basis he was not keen to work as an attorney.

Although he knew what attorneys’ work entails, he did not have much information regarding an advocate’s role within the legal system. He later found out through the mentor he shadowed. This is how he managed to come to grips with what advocates do in their day to day work. Through the shadowing, he also discovered his interest in becoming an advocate and as result he decided to do pupilage.

Day to Day Life As A Pupil – Advocate

Mthimkulu mentioned that on a day he normally does a lot of reading, drafting, research and attends lectures. Among other things pupilage also involves going to the chambers. He is allocated to a mentor who provides work and training with various aspects that is not ordinarily taught at the university such as writing skills. Counsel needs to draft court documents and other documents such as opinions, memorandum and the like. This journey continues.

Victory is the child of Preparation and Determination.

SABWiL Alumni — Fri, 28 Jan 2022 06:33:08 +0000

Right to Privacy #s14 SHRC Alumni Insights

Journey behind the scenes of the Sixth Annual SABWiL Human Rights Court (SHRC) with Amicus Curiae Counsel Alumna Shalin Arends. Our annual SHRC training court commemorates the signing of the Constitution of South Africa, Act No. 108 of 1996, by Nelson Mandela in Sharpeville, Soweto on 10 December 1996. The Right to Privacy entrenched in section 14 of the Constitution is engaged.

When I first was notified that applications for the 6th Annual SHRC was open, I was excited by the opportunity to participate in the human rights litigation training but too worn out to actually apply.

I sent the details to almost everyone else I knew encouraging them to apply for this amazing opportunity. It’s strange how life unfolds because no one I knew actually applied. I then decided to apply.

The case scenario was a bit complicated as it dealt with both the issue of privacy as well as children’s rights. I felt very overwhelmed as I was briefed to be the senior counsel for the applicant originally. However, due to miscommunication the counsel was revised and I became the counsel for the amicus curiae.

As the counsel we received a lot of support in terms of constant email communication from the administration with regards to preparing for the trial as well as having an assigned person to guide and mentor us.

My senior counsel was a really good mentor and truly taught me a lot. However, she informed me that she could no longer participate due to health reasons and had to withdraw a few days before the hearing.

At this point I was anxious and nervous. I wished to withdraw because I was not prepared to carry all this responsibility. Something about doing the research and being invested in wanting to see how the suit unfolds and be a part of that trajectory just kept me from quitting. The Heads of Argument of the Amicus Curiae was duly filed.

The SHRC Chief Justice presiding over the privacy suit was none other than erudite SCA Justice N. Dambuza, which further caused my anxiety to skyrocket. At the hearing, I somehow managed to keep a calm composure and answer all the questions in a fairly reasonable manner.

The preparation for the proceedings took longer than I expected. Still, the hearing and judgment itself was quick.

Regardless, I’m glad I seized the opportunity to participate in the training court and that I had the chance to present a case in front of an actual Justice. The experience was one that I will never forget and something for which I will forever be grateful and treasure.

A lesson I have learnt and will be taking away from this experience is that preparation truly is key. Doing the research and preparing for the case was more than half the journey. After that all that was expected was to show up and present to the best of our ability. A few other lessons I learnt was to have patience, believe in myself and trust the process.

The journey was quite an eventful and sometimes troubling path to walk but I think the destination was well worth it. Victory is the child of Preparation and Determination.

Alumna Shalin Arends, 28 January 2022

View the Right to Privacy Litigation Training Court streaming on SABWiL YouTube here or tune in on the podcast of your choice.

The Art of Advocacy: A two-fold combination of a good oralist and a good brief

SABWiL Alumni — Mon, 27 Dec 2021 08:10:40 +0000

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.

“Comprehend, Learn and Execute, for execution is meaningless without comprehension and learning.”

SABWiL Alumni — Thu, 18 Nov 2021 08:06:30 +0000

SABWiL Alumna Lerato

Igama lamakhosikazi malibongwe.

SABWiL Alumni Insight Series : This blog series delights us with pearls that perchance may adorn our journey in law. Alumna Lerato Mudau studies the judgment rendered in our inaugural court and pens the insight. Wathint’abafazi wathint’imbokodo.

The inaugural SABWiL Human Rights Court #s16 SHRC was held in December 2016. This training court commemorates the signing of the Constitution by Tata Madiba on 10 December 1996 in Sharpeville, Soweto. SHRC Justice Advocate Cornwell Dauds and SHRC Justice Attorney Sankari Reddy preside over the case with SHRC Chief Justice Advocate Lindi Nkosi-Thomas SC at the helm.

Some lessons gleaned from the judgment of the inaugural SHRC are that as legal practitioners we must be forthright and honest about the facts, the law, the requirements, and the relief we seek from the court. I also learnt that heads of arguments should be organized logically in order for the judges to quickly comprehend what the case is about, which laws apply, and which facts we should rely on as counsel. The decision encourages us to conduct rigorous and thorough investigation into the suit that has been brought before the court.

The judgment rendered emphasizes the importance of conducting a prepared execution in court. This teaches me that as a legal practitioner, I must set myself apart from other legal practitioners, make myself stand out in the legal profession by selling my time and presence. Another lesson gleaned is that we should not read our arguments in court because we are expected to know everything there is to know about the issue we are presenting. A thorough examination of the reading material is required, implying that the subject must be understood from beginning to end in order to allow for on-the-spot submissions.

The value of words in a courtroom is another point that the judges emphasize. We must be careful not to say anything offensive or irritating during the proceedings. This essentially means that legal practitioners must act competently, diligently and with complete candour when dealing with the court.

In conclusion, I realize the importance of presenting the court with sensible, well-researched heads of arguments, as well as knowing your case like the back of your hand. The decision emphasizes a number of key points that will influence future legal counsel in the coming years.

We invite our readers to enjoy the judgment streaming on our SABWiL YouTube Channel to discover the lessons pertinent to passage in law. Certainly, golden nuggets abound in the #s16 SHRC Judgment, accessible on our channels or now at #s16 SHRC Judgment – SABWiL YouTube

Alumna Lerato L.B. Mudau