Law Commons^™

A New Reporter Confronts The Supreme Court’S Unpublished Decisions, Peter W. Martin

Cornell Law Faculty Working Papers

For over two hundred years, the United States Supreme Court has been served by an officially designated “Reporter” charged with overseeing the publication of its decisions. While the statutory framework within which the Court’s Reporter of Decisions must operate has been revised from time to time, it has always reflected the need for that publication to be timely. It has also been focused solely on the production of printed volumes, a growing anachronism in an era of linked and searchable law data. Because of the disconnect, delays in official publication of the Court’s decisions grew over the course of this …

Investigating The Role Of Identity Documents In Refugees’ Access To Education In South Africa, Elvis Munyoka

Southern African Journal of Policy and Development

This article examined the role of identity documentation in refugees’ access to education in South Africa. Identity documentation has become a necessity in modern societies. Proof of identity is required to demonstrate who one is, and to gain access to various government services such as health care, employment, and 􀏐inancial assistance. However, the role of identity documents in refugees’ access to education in South Africa has received less attention. Few studies have demonstrated that without identity documents, refugees confront multiple barriers to accessing primary and secondary education in South Africa. This article reviewed available studies and recent literature on the …

A Pandemics Treaty: A Boon For Africa, Kafumu Kalyalya

Southern African Journal of Policy and Development

This article illustrates the weaknesses of the current global health framework. It highlights two pillars a new treaty regime ought to be built upon. The analysis seeks to establish how these pillars could have helped Africa during the pandemic and can indeed help Africa in future pandemics. The analysis suggests the need for a unified global health regime or pandemics’ treaty that promotes a level legal and political playing field regarding future pandemics. The treaty could focus on coordination of research and development; build a stronger global framework that reinforces legal obligations and norms; provide for universal access to medicines, …

Liebherr Zambia Limited V. Cleopatra Ng’Andu Mandandi Caz Appeal No. 182/2021, Chanda Chungu

SAIPAR Case Review

No abstract provided.

Vol. 6, Issue 1 Table Of Contents

SAIPAR Case Review

No abstract provided.

Editorial Board

SAIPAR Case Review

No abstract provided.

Editorial Note, O'Brien Kaaba, Kafumu Kalyalya

SAIPAR Case Review

No abstract provided.

Digashu And Another V Grn And Others; Seiler-Lilles And Another V Grn And Others (Sa 6/2022; Sa 7/2022) [2023] Nasc 14 (16 May 2023), Dunia P. Zongwe

SAIPAR Case Review

This controversy is about a powerful court that sided with a noble cause but that nonetheless decided the case so clumsily that it strengthened the adversaries’ otherwise weak counterarguments. In the groundbreaking Digashu case, the Supreme Court of Namibia recognized same-sex marriages contracted abroad. However, this decision relied so heavily on European and North American jurisprudence that it unintentionally fuels the impression and the accusations of those who claim that such recognition imposes Western values on the Namibian people. Moreover, in its efforts to recognize same-sex marriages, the Namibian apex court sacrificed the accuracy of its analysis by grossly distorting …

Sinyolo Muchiya V The People Appeal No 139/2021 [24 August 2023], O'Brien Kaaba, Ndindase Chirwa

SAIPAR Case Review

It is not often that female complainants of sexual assaults are readily believed by criminal justice institutions. Often, they are re-victimised and turned into suspects instead of being seen as victims. The law itself is often blind to their plight and unique needs. Poor and insensitive investigations, cautionary rules of evidence, insensitive cross examination, among others, combine to condemn them to secondary citizenship in the criminal justice system. Often, the criminal justice system in sexual assault cases unfairly tilts in favour of an accused without considering the needs of victims (and their families) and the public.

Fortunately, in this case …

James Kapembwa V The People Appeal No. 53/2022 (23 February 2023), Mwami Kabwabwa

SAIPAR Case Review

The appellant James Kapembwa was charged with defilement contrary to section 138 of the Penal Code Act chapter 87 of the Laws of Zambia. He was convicted of the offence and sentenced to 15 years imprisonment with hard labour by the High Court of Zambia. Unsatisfied with the decision of the High Court, the appellant appealed to the Court of Appeal against his conviction and sentence.

On 23rd February 2023, The Court of Appeal handed down its judgment in respect of the aforesaid application for leave to appeal against sentencing and conviction. It held that the appellant had known the …

Representative Sara Jacobs And Senator Dick Durbin Take Aim At The Dod Law Of War Manual – And Miss, Brian L. Cox

Cornell Law Faculty Working Papers

In a letter recently sent to the Department of Defense General Counsel, two lawmakers – Representative Sara Jacobs and Senator Dick Durbin – present a number of suggested revisions to the DoD Law of War Manual. In Part I, this Article conducts a critical assessment of the substantive suggestions. By adopting an approach that emphasizes maintaining the delicate balance between humanitarian considerations and military necessity, the critical assessment concludes that the suggested revisions to the Manual are inadvisable.

Part II then considers the Jacobs-Durbin letter in the broader context of public discourse and separation of powers. This component of the …

Critical Collections: Bringing A Critical Eye To Law Library Collection Development, Nicholas Norton

Cornell Law Librarians' Publications

Law schools throughout the United States are considering strategies to embed the concepts of antiracism, diversity, equity, and inclusion into legal education. How does the work of their law libraries intersect with this effort? One potential point of intersection is through law library collection develpment. This article offers an overview of strategies to both curate and bolster representation of diverse voices in an academic law library collection using the theories of critical legal information literacy and epistemic injustice.

Recovering Grammar, Rachel T. Goldberg

Cornell Law Faculty Publications

Three major reasons have been proposed for why legal writing professors do not—or should not—teach grammar. First, the argument goes, teaching grammar would take valuable time away from more important, higher-order writing concerns. Second, some legal writing professors do not feel comfortable teaching grammar because, while they can certainly spot grammar problems in their students’ writing, they never learned technical grammar terms themselves. Third, legal writing professors steer clear of grammar because it is perceived to be associated with remedial writing and “mere” skills teaching—associations that further confine legal writing professors to a lower academic status than their clinical and …

Defamation 2.0, Cortelyou C. Kenney

Cornell Law Faculty Publications

There is a literal prohibition in the media bar that media lawyers cannot represent plaintiffs in suits for defamation. The stated principle behind this rule—a rule that can result in excommunication from the premier media law organization if it is violated—is that playing both sides of the defamation game is disloyal to traditional media actors because any chance of victory could inadvertently distort the law of defamation to increase the risk of frivolous suits against media outlets or other innocent third parties. But has the maxim finally gone too far?

Fueled by a new model where media profits are driven …

Beliefs And Probabilities: The Errors That Remain Are Mine Alone, Kevin M. Clermont

Cornell Law Faculty Publications

Imagine that the preface to a professor’s book implicitly asserts that all the propositions in the rest of his or her book are true, but explicitly acknowledges that experience would suggest some errors remain among those propositions. The prof thereby seems paradoxically to believe inconsistent statements. But in fact this famous preface paradox is an illusion. The first statement is a belief reflecting epistemic uncertainty, while the second is a probabilistic statement about aleatory uncertainty. If one were to convert the probability into a belief, one would see that the author rationally holds perfectly consistent beliefs.

Likewise the lottery paradox …

Bizwayo Newton Nkunika V Lawrence Nyirenda And Electoral Commission Of Zambia 2019/Ccz/005 (1 March 2021), O'Brien Kaaba

SAIPAR Case Review

No abstract provided.

Editorial Note, O'Brien Kaaba, Kafumu Kalyalya

SAIPAR Case Review

No abstract provided.

Toyota Motors South Africa (Pty) Ltd V Numsa Obo Njini And Others (D 692/19 [2022] Zalcd 12 (14 July 2022), Stephen Nkosi

SAIPAR Case Review

This was an application in terms of s 145 of the Labour Relations Act 66 of 1966. Toyota sought to have the decision of the CCMA, ordering the re-instatement of Mr Lungile Njini - then an employee of Toyota for 17 years – be set aside, and that his dismissal be declared fair. The case represents an interesting interplay between the quest for discipline and productivity in the workplace and the right to exercise one’s constitutional right to culture as provided for in s 30 of the Constitution of the Republic of South Africa Act. This note is divided into …

Charity Oparaocha V Winfrida Murambiwa (2004) Z.R. 141 (S.C.), Milambo Chibbonta-Pupwe

SAIPAR Case Review

No abstract provided.

Chimanga Changa Limited V Export Trading Limited (Scz Appeal No. 3 Of 2022), Ntemena Mwanamwambwa, Chenela Mwale-Simbotwe

SAIPAR Case Review

The Supreme Court’s decision in Chimanga Changa has set a clear and resounding tone as well as a sound precedent in the Jurisprudence of Zambian Corporate Insolvency law, specifically in relation to how voluntary business rescue proceedings should be commenced, when they commence and most importantly that an application objecting to the commencement of business rescue proceedings pursuant to section 22(1), does not answer to the definition of a legal proceeding for purposes of effecting a moratorium within the confines of section 25 of the Act.

S V Lifumbela And Others 2022 (1) Nr 205 (Sc), Dunia P. Zongwe

SAIPAR Case Review

The Lifumbela case stems straight from the High Treason Trial, Namibia’s longest and – probably – most expensive judicial saga. In S v Lifumbela, the Supreme Court of Namibia had to settle an appeal against the convictions and sentences of 30 accused implicated in the High Treason Trial. Despite the big stakes involved in this matter, the apex court did not manage to rise to this once-in-a-lifetime occasion and seize this historic moment.

By confirming that the appellants committed high treason, murder, and attempted murder on the basis of conspiracy (i.e., an incomplete crime), the Namibian Supreme Court upended the …

Emporium Fresh Foods Limited T/A Food Lovers Market And Gourment Market Limited V. Kapya Chisanga Caz Appeal No. 44/2021, Chanda Chungu

SAIPAR Case Review

The Respondent, Mr. Kapya Chisanga was alleged to have disclosed information to people, without authority. Following this, he was summarily dismissed. The Respondent challenged his dismissal in the High Court alleging that his dismissal was wrongful, unlawful, and unfair. The High Court held that the Respondent’s dismissal was wrongful, unlawful, and unfair, and granted 24 months salary as damages. The employer subsequently appealed the matter to the Court of Appeal for determination.

The Court of Appeal held that before an employer summarily dismisses an employee, the employee must be subject to a due process. According to the Court of Appeal, …

Zambia Electronic Clearing House Limited V. James Kalengo Caz Appeal No. 239 Of 2020, Chanda Chungu

SAIPAR Case Review

The Court of Appeal’s decision in James Kalengo is crucial because it demonstrates that the concept of a legitimate expectation of renewal, as a principle and concept exists under Zambian employment law. Whilst an employer does retain the discretion to renew a contract of employment or not when it is due to expire, an employee may have a legitimate expectation of renewal if there is any past practice, prior promise or bad faith/mala fides in relation to the renewal.

Mark Tink And Others V. Lumwana Mining Company Limited Caz Appeal No. 41/2021, Chanda Chungu

SAIPAR Case Review

The decision in Mark Tink and Others v. Lumwana Mining Company Limited is an important decision because it clarifies and restates that law that a valid reason, that is substantiated is required when an employer initiates termination of the contract of employment.

This article critiques the approach of the Court of Appeal as it relates to the award of damages. This article seeks to provide clarity as it relates to the award of damages, particularly the way is granted and justified. It is suggested that when the opportunity arises either the Court of Appeal or the Supreme Court should revise …

Molosoni Chipabwamba And 12 Other Displaced Village Owners V Yssel Enterprises Limited Appeal No.104/2020 (Zmca) 2022, Mwami Kabwabwa

SAIPAR Case Review

The issue of customary land tenure and customary land rights is an important issue that has serious implications on customary communities that occupy land under customary tenure. Considering the raising demand of customary land by both local and international investors the courts play an important role in protecting the interests and rights of customary communities and ensuring that such communities are not exploited in the alienation process of customary land and in the procedures of converting from customary tenure to statutory where it is necessary and where the benefits of converting to statutory tenure outweigh the benefits of customary tenure. …

Vol. 5, Issue 3 Table Of Contents

SAIPAR Case Review

No abstract provided.

Chief Justice Mogoeng V Africa4palestine And Others [2021] Jsc/819/20; Jsc/825/20; And Jsc/ 826/20, Dunia P. Zongwe

SAIPAR Case Review

This is a judgment against the first judge among his peers: the Chief Justice. Handed down by the Judicial Conduct Committee (JCC) of South Africa’s Judicial Service Commission (JSC), this judgment involves the remarks made in 2020 by Chief Justice Mogoeng Mogoeng at a webinar hosted by a pro-Israel, conservative, Zionist newspaper. During that webinar, Mogoeng criticized the South African government’s official policy on the Israel-Palestine conflict. Following Mogoeng’s faux pas and a loud public outcry, three non-governmental organizations (NGOs) lodged complaints with the JCC against Mogoeng for his Israel comments.

This appeal judgment largely confirms the JCC’s earlier complaint …

Eva Chiboni V. New Future Finance Company Limited 2020/Hpc/0776, Chanda Chungu

SAIPAR Case Review

The decision in Eva Chiboni has been seen by some as a victory for vulnerable groups of people in Zambia, compared to bigger entities that do at time take advantage of parties with less bargaining powers. However, as this article has demonstrated, it reached an outcome not supported by principles of law, particularly those relating to the need to provide lucid and clear evidence of a vitiating factor or illegality to declare a contract null and void.

Editorial Board

SAIPAR Case Review

No abstract provided.

Livingstone Motor Assemblers Limited (In Receivership) V Indeco Estates Development Company And Others (Supreme Court Judgment No. 1 Of 2013), Ntemena Mwanamwambwa

SAIPAR Case Review

The appeal stems from a winding-up petition filed in the High Court by the respondents seeking an order to commence winding-up proceedings as well as the appointment of a liquidator in respect of the appellant, Livingstone Motor Assemblers Limited. The latter was heavily indebted to several creditors, including the respondents and the Zambia National Commercial Bank (ZANACO) which had commenced receivership proceedings and appointed a receiver/manager extra judiciously, prior to the High Court granting the winding-up order. Disgruntled by the grant of the order, the receiver/manager made an application to vary it so that only he would retain possession of …