Ackneil M. (Trey) Muldrow, III, is a partner in the Corporate Department of Akin Gump Strauss Hauer & Feld LLP in New York City.Trey’s practice focuses on merger and acquisition transactions and corporate governance counseling. Trey serves as the Vice Chairman of the Board of Directors of the Dance Theatre of Harlem. He is a member of the Board of Directors of Bright Point Health and Friends of the High Line. Trey was identified as a leading lawyer in middle-market M&A by Legal 500 US in 2017. He was awarded Private Practitioner of the Year from the Metropolitan Black Bar Association in 2015, led a transaction selected as one of the most innovative transactions in the Financial Times in 2013, and was named a Council of Urban Professionals Cup Catalyst: Change Agent in Law in 2013 by U.S. Innovative Lawyers. He is a graduate of Princeton University and the University of Virginia School of Law.
Thandi Orleyn is a founder, director, and shareholder of Peotona Group Holdings, an investment company contributing to the development of women in business and of critical skills in the economy. The first ten years of her legal practice were spent as an attorney and regional director at the Legal Resources Centre, where she focused on litigation against the apartheid state and was responsible for the training and development of candidate attorneys, paralegals, and community advice centers. Ms. Orleyn served as the National Director of the Independent Mediation Service of South Africa, where she provided strategic leadership as an accredited mediator and arbitrator at a time when South Africa was moving from an apartheid state to a democratic country. She developed people skills, structure, and systems as National Director of the Commission for Conciliation, Mediation and Arbitration, and she was a senior partner at the commercial law firm Routledge Modise Inc (now Hogan Lovells). Ms. Orleyn has co-authored a book entitled, Sexual Harassment in the Workplace. Her current board memberships include BP Southern Africa (Pty) Ltd (Chairperson), Tokiso Dispute Settlement (Pty) Ltd (Chairperson), Industrial Development Corporation of SA Ltd, Toyota SA (Pty) Ltd, and Toyota Financial Services (SA) Limited. She also served as a non-executive director of the South African Reserve Bank. She chairs the Legal Resources Trust, the Shanduka Trust, De Beers Fund, Ceramic Foundation, and the Fort Hare University Council. She received her secondary education at Inanda Seminary School before studying law at the University of Fort Hare and the University of South Africa.
Judith Ogden Thomson has served as a trustee on the Boards of the Asia Society, the Archives of American Art, the American School of Classical Studies at Athens, and Boston University. She has also served as Chair and President of the Princeton Symphony Orchestra and Chair of the American Friends of the British Museum. Lady Thomson was Executive Director of the Chinese Legal Studies Program at Columbia University Law School from 1981 to 1986. From 1979 to 1981, she worked at the Chinese University of Hong Kong with senior curator James Watt on all aspects of the exhibition “Post Han Jades,” which was held at the Asia Society in 1981. From 1974 to 1978, Lady Thomson was special assistant to John Silber, President of Boston University, responsible for labor relations, visiting committees, and government and foundation relations. From 1970 to 1974, she served as staff officer in the Office of the Governor of the Commonwealth of Massachusetts, working with the Governor’s wife, Mrs. Frank Sargent, on areas concerned with welfare, female offenders, and juvenile drug abuse. She is a graduate of Radcliffe College.
For the past fifteen years, Scott Wallace has been Co-Chair of the Wallace Global Fund, a private charitable foundation founded by his grandfather, former United States Vice President Henry A. Wallace. The foundation has major program areas in environment/climate, corporate accountability, and promoting open and accountable democratic governance, particularly in the United States, South Africa, and Zimbabwe. It has played a lead role in promoting the movement to divest from fossil fuels and invest in clean energy solutions. An attorney since 1978, Mr. Wallace has specialized in criminal and constitutional law, as well as legislation and public policy. He has served as Counsel to the U.S. Senate Judiciary Committee, General Counsel to the U.S. Senate Committee on Veterans Affairs, Director of Defender Legal Services at the National Legal Aid and Defender Association, an advisor on criminal law reform to several East African governments, and on the board of directors of numerous nonprofit organizations. He has overseen numerous criminal justice projects for the U.S. Department of Justice and has published widely on criminal justice policy. He is a graduate of Haverford College and Villanova University Law School.
Paul F. Roye is Senior Vice President of The Capital Group Companies. He joined the firm in May of 2005. Previously, he was Director of the Division of lnvestment Management at the U.S. Securities and Exchange Commission. During his tenure, he received the Chairman’s Award of Excellence, the highest honor that can be bestowed upon an SEC staff member. Prior to becoming Director, he was a member of the law firm Dechert, where he was a partner in the firm’s financial services, investment management, and corporate securities practice group. He serves on the Investor Issues Committee of the Financial Industry Regulatory Authority and the Board of Directors of the Association of Securities and Exchange Commission Alumni. He also serves on the Executive Council of the Federal Bar Association. He is a graduate of Dartmouth College and the University of Michigan Law School.
Ninety-one students in the Eastern Cape will now receive help with getting to school – after LRC lawyers filed papers in the Grahamstown High Court that compelled the South African Department of Education to comply with its constitutional obligation to provide students with transportation to four schools in the Eastern Cape, where learners were walking long distances to school, often in dangerous conditions. This is the latest of several student transportation cases brought by the LRC.
Thousands of Eastern Cape students walk 10 kilometers (about 6 miles) or more round-trip every school day. Acting on behalf of the Khula Community Development Project and four schools, the LRC resorted to litigation after the Department of Education repeatedly failed to take action on applications for student transportation. The LRC sought a two-part order, providing urgent relief to the students at the four schools and seeking systemic relief as well.
The Department of Education acknowledged its Constitutional obligations to provide transportation to qualifying students and agreed to provide transportation to the 91 students. The Department argued that it is improving the systemic administration of student transportation by using a digital database, the South African Schools Administration Management System, to log and process applications. However, many schools have encountered difficulties when using the new system and have noted that training has not been provided. The LRC will continue, therefore, to pursue its claim for systemic relief.
Petros Majola, the Director of the Khula Community Development Project, stated: “Subsidized scholar transport will make a big difference in the lives of these children, who can enjoy their right to education without their parents spending scarce funds to pay for private transport.”
South Africa’s Supreme Court of Appeal handed down judgment confirming the Western Cape High Court’s position, which provides that children born in South Africa to foreign national parents are entitled to apply for citizenship through the South African Citizenship Act 88 of 1995 (Citizenship Act or the Act) even if they were born before 2013.
The LRC represented five individuals who were born in South African before 2013 when the Citizenship Act was amended. Due to the interpretation adopted by the South African Department of Home Affairs, they were prohibited from applying for citizenship in terms of section 4(3) of the Citizenship Act which provides that:
“A child born in the Republic of South Africa of parents, who are not South African citizens or who have not been admitted into the Republic for permanent residence, qualifies to apply for South African citizenship upon becoming a major if –
(a) he or she has lived in the Republic from the date of his or her birth to the date of becoming a major;
(b) his or her birth has been registered in accordance with the provisions of the Births and Deaths Registration Act, 1992 (Act 51 of 1992).”
The court rejected the position adopted by the Department of Home Affairs which interpreted the amendment of the Citizenship Act to infer that only children born after 2013 were able to apply for citizenship in terms of section 4(3) of the Citizenship Act. The Supreme Court of Appeal affirmed that ”it is not in the interest of justice and neither is it just and equitable to send the respondents from pillar to post simply because the Minister has adopted a supine attitude that the regulations will only be promulgated in due course.”
The matter had been before the Western Cape High Court, which held that the Department of Home Affairs is to enact the necessary form/s to allow for applications in terms of section 4(3) and to accept applications on affidavit pending the enactment of the form/s. The Department of Home Affairs argued that the ruling encroached upon the principles of separation of powers. The Supreme Court of Appeal confirmed that the order of the High Court does not encroach upon the separation of powers.
Accordingly, the Supreme Court of Appeal dismissed the appeal with costs. The Minister of Home Affairs was ordered to make provisions for application for naturalization in terms of section 4(3) of the Act. The Court also ordered the Department of Home Affairs to accept applications for naturalization by the respondents and others similarly placed pending the promulgation of the regulations.
The LRC welcomed the judgment which confirms the rights of its clients to nationality and ensures that they are not to be rendered stateless through restrictive interpretation of nationality laws. The rights to equality and to be treated with dignity apply to all persons regardless of their nationality.
Thokozani Maphumulo’s application in the Durban High court to have her marital home placed in her name was successful on 23 October 2018. The success follows her earlier representation by the LRC in the matter of Ramuhovhi and Others v President of the Republic of South Africa and Others  ZACC 41, in which the Constitutional Court confirmed that Section 7(1) of the Recognition of Customary Marriages Act (RCMA) was unconstitutional and invalid. Section 7(1) of the RCMA regulates the proprietary consequences of “old” customary marriages and states that customary marriages entered into before the commencement of the Act continue to be governed by customary law.
Mrs. Maphumulo was the second wife in a customary marriage to Musawenkosi Maphumulo. She acquired property with her husband during their marriage and had lived with her husband since 1992 at that property. Her husband died on 28 October 2013. He had executed a will wherein he bequeathed his entire estate to his son from his first marriage. The property was subsequently transferred to his son on 11 December 2015. After the transfer, the son attempted to evict Mrs. Maphumulo from the property.
In its judgment, the Constitutional Court ordered that the following regime will apply to polygamous customary marriages concluded before the RCMA came into operation:
(a) Wives and husbands will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property, and these rights shall be exercised as follows:
(i) in respect of all house property, by the husband and the wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and
(ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.
The Constitutional Court made it clear that only members of that house are entitled to enjoy benefits that flow from the existence of the property, including rights of inheritance to the property. The Constitutional Court did not make a factual finding on this matter. Mrs. Maphumulo was required to bring a separate application to challenge the transfer and ownership of the property, which she did in the Durban High Court, represented by the Legal Resources Centre. She brought an application in the Durban High Court challenging the validity of her late husband’s will insofar as it bequeathed the property to his son. Finding in favor of Mrs. Maphumulo, the Court declared the will invalid and set it aside. The Court further declared that the subsequent transfer of the property to the son was unlawful and ordered the Registrar of Deeds to transfer the property into Mrs. Maphumulo’s name.
Representing the Centre for Applied Legal Studies, Michael Bishop of the LRC’s Constitutional Litigation Unit argued before the Gauteng High Court in Pretoria that the South African Presidency cannot bind South Africa to international treaties without first consulting the public.
The Southern Africa Development Community (SADC) Tribunal was established in 2005 to resolve disputes involving southern African governments and their citizens. After the Tribunal ruled in 2009 that the government of Zimbabwe must restore the land of four commercial farmers, who had turned to the tribunal, and compensate them for losses incurred, Zimbabwe challenged the legitimacy of the tribunal. The tribunal’s protocol was revised in 2014, removing its power to hear disputes brought by citizens against governments and restricting its mandate to disputes between SADC member states.
The Law Society of South Africa (LSSA) is challenging the actions of South African President Jacob Zuma and his Ministers of Justice and International Relations and Cooperation in voting for, signing, and planning to ratify the SADC Summit Protocol of 2014. The LSSA is asking a full bench of three judges, headed by Judge President Dunstan Mlambo, to declare their actions unconstitutional because they infringe on the right of South African citizens to access justice under South Africa’s Bill of Rights.
The LRC is representing the Centre for Applied Legal Studies from the University of the Witwatersrand’s School of Law as a friend of the court, arguing that the Presidency cannot bind South Africa to international treaties without first consulting the public. The LRC argues that President Zuma has effectively removed the rights of South Africans to access the tribunal if they want to appeal cases that have been decided in South Africa’s highest courts.
Nine member countries have already ratified the protocol. If South Africa ratifies the protocol as well, a majority vote will have been reached, affecting the right of 230 million people throughout southern Africa to bring cases before the tribunal.
The LRC, representing the Social Justice Coalition (SJC), has won an important case in the Western Cape High Court, which declared Section 12 (1) (a) of the Regulation of Gatherings Act unconstitutional, decriminalizing gatherings where no notice has been given to the relevant government authority. The High Court also withdrew the criminal convictions of the LRC’s clients.
In September 2013, the SJC had organized a protest outside the Mayor’s office in Cape Town, but it neglected to give notice to the municipality. Section 12 (1) (a) prohibits any group from convening a gathering of fifteen people or more without giving notice. The penalty for contravention is one year imprisonment, a fine, or both. After SJC activists were convicted in Magistrate’s Court and released, the SJC decided to challenge the constitutionality of the Act. The South African Police Service (SAPS) challenged the appeal, but the South African government agreed to abide by the High Court’s decision.
The Western High Court accepted SAPS arguments that the notice requirement was simple and straight forward and would allow adequate deployment of police to protests. However, the Court found that the criminal sanction, which could result in imprisonment and impact the future study and employment of protesters, was disproportionate, having a chilling effect upon the right to freedom of assembly. The Court noted the central importance of this right to democracy and of giving “voice to the voiceless” in society. The Court noted that the SJC had engaged in protest only after a long and unresolved dispute with the city of Cape Town over the access to sanitation services of working class communities. The Court noted other less restrictive penalties, such as an administrative fine, that the government could impose instead.
The High Court found that the Act is disproportionate and therefore unconstitutional. The Court set aside the convictions of SJC’s activists and upheld the appeal. The decision must now be confirmed by South Africa’s Constitutional Court.
The LRC made an application for contempt of court on behalf of the LRC’s client, the Wildebeestkuil Land Claim Committee, against the chief and headman, who have been selling their land in spite of a court order preventing them from doing that.
In 1925, approximately 95 families, who lived on the Wildebeestkuil farm, bought the land and began managing it as a collective. In 1950, the apartheid South African government gave a portion of their land to the South African Defence Force (SADF). The government forced the families who lived there to leave behind their church, schools, houses, and fields and to move to another part of the farm where others already lived. That portion became overcrowded with families and cattle died because they lacked sufficient land for grazing. The SADF began allowing other people to build informal settlements on their portion of the land.
In 1998, the Wildebeestkuil Land Claim Committee successfully lodged a claim with the Land Claims Court for the old portion of their land. In 2001, the Regional Land Claims Commission informed the informal settlers on that land that they could not build more housing. However, the chief and headman, who had been appointed during the apartheid years to administer the land, allocated land to outsiders, sold portions of the land, allowed mining to take place, and gave permission for powerlines to be erected. The community wrote to the Commission in 2003 in protest, but nothing was done. In 2009, the Commission invited the claimants to a meeting in Pretoria, but no action was taken. In 2010, the Commission informed the community that they must opt for compensation, but the community pressed instead for the return of their land.
By 2014, the Wildebeestkuil Land Claim Committee asked the LRC for help. By 2015, the chief and headman had agreed to stop allocating land and a surveyor’s report had been conducted, estimating that the size of the settlement land under dispute involved about 200 acres and the grazing land involved about 2,100 acres. The Committee agreed to receive compensation for the land used for informal settlements, but they wanted the grazing land returned to them even though the land had been overgrazed and eroded.
The chief and headman continued, however, to sell land to outside people. In September of 2016, the LRC took the chief and headman to court, which resulted in a successful interdict against their actions. The LRC also asked the courts to review the Regional Land Claims Commission’s earlier decision not to restore the land to the community. Again, the chief and headman continued to ignore the court ruling. In January 2018, the LRC made an application for contempt of court against the chief and headman.
Sadly, this case is not an isolated one. Although 8.2 million acres have been successfully claimed by communities since the end of apartheid, only 4.7 million of those acres have been transferred successfully to the beneficiaries. Many communities with successful claims are waiting for their land, vulnerable in the meantime to traditional leaders and illegal occupiers.