Of tricky law questions and me

Law is a pretty voluminous subject and has various branches which one is expected to be well versed in. This article will look at some of the most common law phrases / questions and explain them
What is the difference between an action and an application?
Firstly the difference lies in the fact that the law specifically states which proceedings may be brought by way of action or application. For example an application for registration as a legal practitioner is by way of application whereas a lawsuit for damages or divorce is expressly restricted to action by our law.
The second difference is that where the law is silent on whether one should proceed by way of application or action, one should look at whether a material dispute of fact is likely to arise. Where there are material disputes of fact , one should proceed by way of action so that these disputes can be resolved at a trial. Where there is a settled position as to what the facts are , one should proceed by way of application for the court to adjudicate on the dispute of law.
If one proceeds using the wrong procedure the court can
√dismiss the lawsuit with costs
√order that the matter be referred to trial

What is a trial within a trial ?
This is an aspect in the law of evidence . A case in point whereby such a scenario may arise is during a criminal trial whereby an accused person may argue that his warned and cautioned statement was obtained by the police under duress. The court will thus conduct a "trial within a trial" ,that is , an inquiry to find out if the accused's arguments are correct and to find out if the evidence is thus admissible .

What are the requirements for an interdict ?
Firstly an interdict is an order that prohibits somebody from doing something unlawful
There are two types of interdicts : final and temporary

Requirements for a temporary interdict : lessons drawn from setlogelo v setlogelo 1914 AD 221 (for a summary of the case follow this link manswers-su-5-property-law - WordPress.com)
√applicant must prove a prima facie right
√a reasonable apprehension of irreparable harm
√there must be no other remedy available to the applicant
√the balance of convenience
Requirements for a final interdict
√a clear right
√ reasonable apprehension of irreparable harm
√no other remedy available

What are the requirements for spoliation : lessons drawn from the Nino Bonino v De Lange case
√peaceful and undistributed possession
√wrongful or unlawful possession

The rationale for spoliation is that no person should take the law into his own hands and should not unlawfully dispossess another of peaceful and undisturbed possession even if the thing belongs to you.

Xoxo

Many more tricky law questions and answers coming up

Ms Vee

IMMIGRATION IN INTERNATIONAL LAW

THE  WORLD AS WE KNOW IT HAS INDEED BECOME A GLOBAL VILLAGE. PEOPLE ARE ALWAYS TRAVELLING TO DIFFERENT COUNTRIES IN SEARCH OF GREENER PASTURES OR JUST TO RELOCATE. WHEN GOING TO ANOTHER COUNTRY ONE SHOULD CHECK THE REQUIREMENTS OF THAT COUNTRY. ONE MIGHT NEED A VISA, A WORK PERMIT OR A STUDY PERMIT. FOR COUNTRIES IN THE SADC  OR IN THE EUROPEAN UNION THERE ARE NO VISA REQUIREMENTS NEEDED WHEN ONE GOES TO A COUNTRY WITHIN THEIR REGION. A CASE IN POINT IS THE SADC SITUATION WHEREBY A CITIZEN OF ZIMBABWE CAN VISIT SOUTH AFRICA, TANZANIA, NAMIBIA, MOZAMBIQUE OR MALAWI WITHOUT REQUIRING A VISA. HOWEVER ONE NEEDS TO BE IN POSESSION OF A VALID PASSPORT OR AN EMERGENCY TRAVEL DOCUMENT TO ENTER THESE COUNTRIES. AT THE BORDER POSTS, ONE IS GIVEN SPECIFIC DAYS WHICH HE OR SHE CAN SPEND IN THE COUNTRY. IF A PERSON EXCEEDS THESE DAYS ONE WOULD HAVE BREACHED IMMIGRATION LAWS AND WILL BE LIABLE TO A FINE . FOR EXAMPLE IF SOMEONE EXCEEDS THE NUMBER OF DAYS WRITTEN IN THEIR PASSPORT IN SOUTH AFRICA , THEY WILL BE LIABLE TO A FINE OF R3000 OR $251 . IF ONE WANTS TO STUDY OR WORK , FOR EXAMPLE, IN SOUTH AFRICA , ONE HAS TO APPLY FOR THE SUITABLE PERMIT AT A SOUTH AFRICAN EMBASSY IN THEIR COUNTRY. IN ZIMBABWE , MOST EMBASSIES CAN BE FOUND IN MOUNT PLEASANT.

BEFORE TRAVELLING TO A FOREIGN COUNTRY , ONE SHOULD MAKE SURE THEY HAVE:

1  THE PROPER DOCUMENTS FOR TRAVELLING (PASSPORT, VISA, PERMIT ETC)

2   ENOUGH MONEY TO USE FOR  THE DURATION OF THEIR STAY

3   A SAFE PLACE TO LIVE SO THAT THEY DONT FALL PREY TO THIEVES

4  ADEQUATE INFORMATION ABOUT THE PLACE THEY ARE TRAVELLING TO

5  EMERGENCY PHONE NUMBERS

I HOPE YOU WILL FIND THIS USEFUL.

XOXO

MS VEE

me and self determination in public international law

Under public international law or national law for that matter , the right of people to self determination is universally acknowledged. Self determination is the right of people to determine their own fate, to determine which government they want to see in place and generally the people's freedom to determine their own freedom. In as much as this right is recognized , it is a contentious principle because some countries refuse to acknowledge self determination on the parts of some states. There are various partially recognized states in the domain of public international law which i shall discuss below. So then what is the point of recognizing the right of self determination when various countries refuse to acknowledge other states who freely choose their own political status? The following case studies will show the disputed territories and partially recognized states in the world.

THE STATE OF PALESTINE

The State of Palestine declared its independence in 1988 and it claims the West Bank, Gaza and Jerusalem as its territory. This has caused conflicts with Israel and most of the areas claimed by Palestine are occupied by Israel . The Israeli-Palestinian conflict has been ongoing for a long time now and the conflicts border around Palestinian freedom of movement , Jerusalem and also border issues among other things.However the declaration of independence by Palestine was recognized by the United Nations General Assembly and other countries such as Sweden. Some countries do not recognize the state of Palestine although it determined its own sovereignty . This shows that some countries simply do not recognize other states' self determination for political reasons.

KOSOVO

Kosovo declared its independence from Serbia in 2008 and is also a partially recognized state. Serbia does not recognize the independence of Kosovo along with other countries. It is also not a member of the United Nations and lacks diplomatic recognition from 85 UN members. Russia has strongly opposed Kosovo's declaration of independence but has supported South Ossetia and Abkhazia's independence showing double standards. America has also done the same by supporting Kosovo but not recognizing South Ossetia and Abkhazia's independence.

 KATANGA  V ZAIRE

The Katanga people wanted to secede from Zaire but its secession rejected on the  basis that secession would violate Zaire's territorial intergrity and sovereignty.

REFERENCE RE SECESSION OF QUEBEC

Quebec wanted to secede from Canada and sought an opinion from the Supreme Court of Canada which held that unilateral secession under Canadian law was not legal but if a referendum decided in favour of Quebec's independence there would be no basis for refusing its independence.

SOUTH OSSETIA AND ABKHAZIA

These two states successfully seceded from Georgia with the help of Russia. They are also partially recognized as states internationally.

PEOPLE SHOULD BE GIVEN THEIR OWN FREEDOM TO CHOOSE THEIR POLITICAL STATUS. BUT IT SEEMS THE INTERNATIONAL WORLD WANTS TO INTERFERE AND GIVE VALIDATION TO INDEPENDENCE OF STATES IT SUPPORTS ONLY. THESE DECISIONS ARE BASED ON POLITICAL EXPEDIENCY AND NOTHING ELSE.

till next time

xoxo Ms Vee

TIME TO SIT UP AND TAKE NOTICE

Many congratulations to Tanzania's newly elected president John Magufuli. He was born in 1959 and previously served as a Minister of Works in the previous government. Nicknamed the "Bulldozer" the new president has indeed been making drastic changes and it is time for the whole world to sit up and take notice. He scrapped out independence day celebrations so that the money that was set aside for that can be used to help people dying of cholera and also to help clean up the environment. He went on an unannounced trip to the national hospital and found patients lying on the floor. He then fired the Hospital Director and hired a new one. president Magufuli also ordered that 300 beds be bought for the patients he found lying on the floor. Now, that is what i call good leadership. A good leader does not allow people to sugar coat things for him or allow his ministers to take him to the best parts of the country he rules. A good leader is the one who keeps people on their toes and inspires them to work very hard. A good leader goes on unannounced visits to really notice the state of his country. President John Magufuli is making history by implementing austerity measures in Tanzania so that all the citizens in the country benefits.

Here a look at what the "Bulldozer" has been up to:

1.  He ordered the cost of the party to inaugurate new parliaments to be slashed from $100 000 to $7 000
2. He has ordered restrictions on all foreign travel by public officials
3.  He has ordered cuts in tax exemptions
4.  He reportedly refused gifts from people congratulating him when he won the presidency
5. He sacked the head of the main state hospital after he found patients lying on the floor 
6. He dissolved the governing board at the state hospital after discovering that main machines were not working and ordered the new director to get them repaired
7. Magufuli walked to the Finance Ministry and ordered that people must do their jobs after he found some people absent
8. He scrapped independence day celebrations and said the money should be used for a clean up campaign considering the citizens of Tanzania have been dying from cholera AND THIS IS THE FIRST TIME INDEPENDENCE CELEBRATIONS HAVE BEEN SCRAPPED IN TANZANIA
9. He scrapped Christmas cards to save costs and said the money should be used to pay off government debts
10. He has promised to create a special court to oversee all cases relating to corruption

 AND ALSO when he was the Minister of works he built the desperately needed roads in Tanzania.
He is reputed to be a no nonsense and results driven politician. President Magufuli is indeed a man of action and all African leaders and indeed all world leaders should sit up and take notice.

THE TANZANIANS VOTED WISELY.


XOXO MS VEE
till next time

 

ON A LIGHTER NOTE: I CANT LIVE WITHOUT THE LAW PLUS Mariah Carey - Without You (Official Video)

THE LAW MAKES ME FEEL THIS WAY. I FEEL I CANNOT LIVE WITHOUT THE LAW ANYMORE . EVERYWHERE I TURN IT IS LAW LEFT , RIGHT AND CENTER AND I LOVE IT.


XOXO

MS VEE

me and public international law

Public International law (PIL) is fascinating : at least from my own point of view. PIL covers a lot of things and one gets to understand why states do what they do. My understanding is that everything states do is for their own benefit and they do certain things if acting in such a manner benefits them. It is like the human nature really, people usually do something if it will benefit them. A few human beings, like Mother Theresa really do things out of their good hearts and expecting nothing. Now one concept of public international law has caught my eye and I am writing a dissertation on it. The concept that has stolen my heart and has got me salivating is none other than the controversial customary international law principle of universal jurisdiction. Universal jurisdiction is whereby a state can exercise its powers over an individual through prosecution regardless of where the crime was committed , whether the individual is a national of that country as long as it is in respect of heinous crimes such as piracy, war crimes and crimes against humanity. States can only exercise this power with regards to international crimes. The rationale for this principle is to make sure that no one can escape from crimes they committed in another country by escaping to another country. hence, no country can be a safe haven for criminals. This seems fair doesn't it? But doesn't this concept infringe state sovereignty . Wont this principle be used for political gains? Will it not create the tyranny of judges and result in a situation whereby the law is used to further political ideologies or further military strategies? In as much as the principle is theoretically sound , in reality bias, friction and disputes between states may arise when one country has tendencies to prosecute citizens of other countries without batting an eyelid. Will one ever be safe with universal jurisdiction?

Picking your brain......What do you think? Is universal jurisdiction fair /relevant / necessary in your own opinion?

xoxo

Ms Vee-

#FeesMustFall and the law

I have been following with interest the revolutionary students in South Africa in their campaigned famously called the #FeesMustFall campaign. What the South African students are doing is really commendable and should be applauded. The proposed fees hike is beyond the reach of many and the students have to be commended for standing up for their human rights. Every child has a right to education and that right must be protected at all costs. These days this right is under threat and many brilliant students cannot proceed with school for lack of finances. I once learnt at a South African school and i do understand how expensive the fees can be in that country. Most people as it stands cannot even afford tuition fees and to propose a fees hike to me is a violation of the right to education. The South African government is thus putting all students at  a disadvantage. Most parents cannot afford to pay these outrageous amounts given the measly wages they earn. I salute the South African students for standing up for their rights. I salute the South African students for protecting their rights to educations. Indeed fees must fall and they will fall. The students have shown that they are strong and united and this is something to be admired. Citizens of South Africa have also shown their unity as celebrities, campus control, various leaders and the community as a whole have shown their support for these students. The student uprising for justice is highly commendable and it has resulted in talks with President Jacob Zuma and student leaders today which is seeing many students march to the Union Building in a historic march. the movement has gathered momentum and is spreading throughout the country like the Ebola virus as my sister  called it. My only regret is that i was not able to be in South Africa to show my support for my fellow students . Be that as it may support can be shown through social media like Twitter and I will not stop supporting them. Twitter is already seeing 300 tweets per minute of #feesmustfall  and all students all over the world should show their support. These are students in anguish and fighting for their rights. I salute them.

I understand that these students are not just young people throwing tantrums but these are students addressing real issues on the ground. Imagine how a brilliant young students will feel when his or her parents tell him or her that they cannot afford fees and he cannot go to university. Obviously the chains of poverty will never be broken if this is allowed to happen.  Fees must fall to afford everyone the same opportunities in life. This is wrong and I will continue supporting these students. Education is the only hope most people have of getting out of poverty and if they are not able to afford it , then the government might as well be sentencing people to a life of poverty, especially the Black majority of people who are cannot afford tuition. Black people are at a disadvantage as opposed to white people in South Africa because of the apartheid era which people are still recovering from.

 Raising fees is as good as taking the black people to the apartheid era and this is contrary to what people like , Nelson Mandela fought for. Mandela must indeed be turning in his grave looking at the state South Africa is in now. It is truly sad and like the protesting students , I am anguished and am in pain.

I cannot help but think of my little sisters who learn and stay in South Africa this very moment. Are my parents going to be able to afford the tuition fees seeing that they are struggling to pay her high school fees at the moment? Will she be able to realize her dreams ? Will she be able to attend university at all? All these questions traumatize me and i thank the revolutionary students for standing up for their rights and for the rights of the future generations to come.

#FeesMustFall

The fees should fall and they will fall asap.