Marco V. Masotti is a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, where he has served on the firm’s management committee. He is recognized as one of the country’s leading funds lawyers in the alternative asset management industry. He currently serves as Co-Chair of the Private Investment Funds Forum and Chair of the Private Investment Funds Subcommittee of the International Bar Association. Mr. Masotti has a unique profile in the marketplace as an adviser to a wide variety of investment funds, including private equity funds, credit funds, hedge funds, growth capital funds, infrastructure funds, and real estate funds. He represents some of the most well-known alternative asset managers in the marketplace, including Apollo, Avenue, Blackstone/GSO, General Atlantic, Harvest, KKR, KPS, Oak Hill, Oaktree, Reservoir, Roark, Silver Point, TPG, Värde, and Wellspring. He has been quoted extensively in the Financial Times, The New York Times, The Wall Street Journal, and elsewhere and has provided guest commentary on television news networks, including Bloomberg Television. He is part of the Founding Advisory Board for the Sorensen Center for International Peace and Justice at CUNY School of Law. He has also provided pro bono services to the Clinton Foundation. Mr. Masotti was awarded a Fulbright Placement Award upon graduating from the University of Natal Faculty of Law.
Andrew Sillen is Vice President for Institutional Advancement for Brooklyn College and Executive Director of the Brooklyn College Foundation, Inc. Previously, Dr. Sillen was Professor and Head of the Department of Archaeology and then Director of Development of the University of Cape Town (UCT) from 1985 to 2001. During that period, UCT was transformed from a predominantly white institution to a fully integrated institution meeting the needs of post-apartheid South Africa. Dr. Sillen worked closely with then Vice-Chancellor Mamphela Ramphele, the first black woman to lead a major university in South Africa, who had previously been a leader of South Africa’s Black Consciousness movement. Working with Ramphele, Dr. Sillen raised funds for undergraduate and graduate scholarships for African students and completed a capital campaign for the Harry Oppenheimer Library. From 2002 to 2005, Dr. Sillen held a variety of positions at Synergos, a non-profit founded by Peggy Rockefeller Dulany, focusing on global philanthropy. He is a graduate of Brooklyn College and holds a Ph.D. from the University of Pennsylvania.
As a Managing Director of Public Capital Advisors LLC, Joel M. Motley provides advice on capital markets and infrastructure to emerging markets. He began his career in investment banking at Lazard Freres & Co. in 1985 and he became a founder of Carmona Motley Inc. in 1992. Prior to investment banking, Mr. Motley was an aide to Senator Daniel Patrick Moynihan, serving as chief of the Senator’s staff in New York City and surrounding counties. He joined the Senate staff after five years of corporate law practice at Simpson Thacher & Bartlett. He is Chairman of the Governance Committee of the New York board of the Oppenheimer Funds, overseeing $120 billion of assets in a variety of equity and fixed-income funds. Mr. Motley is Co-Chair of the Human Rights Watch Board of Directors and serves on the boards of Historic Hudson Valley and The Pulitzer Center on Crisis Reporting. He is a graduate of Harvard College and Harvard Law School.
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.
Chris Stone is Professor of Practice of Public Integrity at Oxford University’s Blavatnik School of Government. He is an expert in institutional strategy and public-sector reform globally, with a special focus on systems of justice. From 2012 through 2017, Chris served as president of the Open Society Foundations, helping to strengthen civil society as a force for political pluralism in more than one hundred countries worldwide. Prior to joining OSF, he was the Guggenheim Professor of the Practice of Criminal Justice at the Harvard Kennedy School, where he led both the Program in Criminal Justice Policy and Management and the Hauser Center for Nonprofit Organizations. Chris began his legal career in 1982 as a public defender in Washington, D.C., and later helped found both the Neighborhood Defender Service of Harlem and the New York State Capital Defender Office. From 1994 through 2004, he served as president of the Vera Institute of Justice, an incubator of innovation for the justice sector, expanding the Institute’s work with government reformers in the United Kingdom, South Africa, Russia, Nigeria, India, China, Chile, and Brazil. He is the recipient of an honorary OBE for his contributions to criminal justice reform in the United Kingdom.
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.
In 1994, South Africa’s Parliament passed the Restitution of Land Rights Act, establishing a system allowing people and communities who had lost their land due to racially discriminatory laws to claim restitution of that land or equitable redress. Approximately 80,000 claims were lodged by the deadline of 31 December 1998 established by the Act, but by 2014 – sixteen years later – over 20,000 claims still had not been finalized.
In 2014, Parliament enacted the Restitution of Land Rights Amendment Act, which re-opened the restitution process, allowing new land claims to be lodged until 30 June 2019. However, the Land Access Movement of South Africa (LAMOSA) challenged the procedures used to pass the Amendment Act, arguing that public involvement had not been facilitated and that Section 6 of the Act regarding the priority of claims was incurably vague.
On 28 July 2016, the Constitutional Court held that re-opening land claims, which the Amendment Act sought to do, was of paramount importance, but the Court declared the Amendment Act to be invalid because the public participation process had been unreasonable. The Court prohibited the Commission on Restitution of Land Rights from processing any new claims in order to ensure that old claims were not superseded. And the Court ordered Parliament to facilitate the enactment of a new Amendment Act within 24 months to deal with the issue of re-opening land claims. The Court noted that the Commission could proceed with new claims if all old claims were finalized before Parliament enacted a new Amendment Act.
The South African Parliament failed to enact a new Amendment Act within the 24 month period. Two days after the expiration of the 24 month period, Parliament applied to the Constitutional Court for an extension until 29 March 2019. The Court granted an interim extension, pending the outcome of the application.
Representing four of the original applicants, the LRC opposed the application, arguing that the Court’s order in 2016 was final and the matter should now be determined by the Court. They argued, as well, that the older land claims should be prioritized over the newer claims.
In its judgment on 19 March 2019, the Constitutional Court noted that Parliament was aware that it would not be able to meet the 24 month deadline but did not approach the Court for an extension until after the deadline had expired. The Court noted, too, that Parliament took no action for nearly one year during the 24 month timeframe. The Court concluded that the prospect of enacting a new Amendment Act by the proposed timeframe of 29 March 2019 was unlikely. Therefore, the Court dismissed the application by Parliament.
The Court upheld the counter application filed by the LRC on behalf of the respondents, ruling that, subject to the Parliament legislating otherwise, the Commission on Restitution of Land Rights is prohibited from processing in any way any claims lodged between 1 July 2014 and 28 July 2016 until it has settled or referred to the Land Claims Court all claims lodged on or before 31 December 1998, or the Land Claims Court, upon application by any interested party, grants permission to the Commission to begin processing new claims.
The Court also ruled that the Chief Land Claims Commissioner must file a report to the Judge President of the Land Claims Court every six months, reporting progress with finalizing the old land claims, including the nature of constraints faced by the Commission, until all old land claims have been processed.
The LRC welcomed this important judgment, noting the crucial link between land, dignity, and the realization of rights guaranteed by South Africa’s democratic Constitution.
The full judgment can be found on the Southern African Legal Information Institute (SAFLII) website at https://t.co/8jQddxqRoH
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.”
On 28 February 2019, the Mthatha High Court granted a final interdict against former Headwoman Nosizwe Maxhwele, four members of her traditional council, and a contractor from destroying the properties of six residents of Bhongweni Location, Phase 1 of the Zimbane Administrative Area in Mthatha, who had been unlawfully evicted. The Court also ordered them to restore possession of the properties to the residents and to refrain from threatening the residents or preventing them from accessing their properties. The Legal Resources Centre represented the six applicants.
Ms. Maxhwele had begun forcefully evicting people from the land in order to sell the property to developers. The land forms part of Erf 912, which belongs to the King Sabata-Dalindyebo Local Municipality and is the subject of a land claim in terms of the Restitution of Land Rights Act.
In March 2018, the headwoman and her council informed the applicants that they must vacate their properties, because the plots belonged to the chiefdom and had been sold. The applicants were told that their properties would be destroyed so that a contractor could begin construction on those and other properties to build rental apartments for students. The contractor destroyed a fence around one of the properties and erected a wall. In July 2018, he destroyed the house of one of the applicants, built a wall around the property of another applicant, and barricaded the property to prevent the applicants from entering their properties.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) prevents the arbitrary evictions of any persons from their property by requiring a court order, but the headwoman and her council had not obtained a court order. In terms of the Restitution of Land Rights Act, no person may sell, exchange, donate, or develop land that is the subject of a land claim without the written consent of the Chief Land Claims Commissioner. The applicants hold informal rights to the land under the Interim Protection of Informal Land Rights Act (No. 31 of 1996), which seeks to protect informal land rights holders in the former homelands.
The application was opposed by Ms. Maxhwele, the council members, and the contractor. Judge Plasket found the respondents’ denial of the allegations against them “woefully inadequate” and ordered them to pay the cost of the application. Informal land rights holders have suffered abuse at the hands of traditional leaders in South Africa. The applicants had been effectively dispossessed of their rights to their land without compensation by people who themselves had no legal authority over that land.
The first applicant noted that traditional leaders target households headed by women or widows. She added, “We hope the case will show other traditional leaders, developers, and contractors that they cannot simply evict people from Bhongweni without consequences. There are so many of these unlawful evictions happening in Bhongweni. People are losing their homes because of the greed of others who make money from building flats on the land from which they tried to evict us.”
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.