THELEGAL TIMES FACULTY OF LAW 1ST EDITION 2016 UNIVERSITY OF JOHANNESBURG Judge Bosielo graced the Faculty of Law with his presence, and a very special speech, at the March graduation ceremony. His full speech is available on the Faculty Facebook page. Extracts from his speech: The former Chief Justice of the US, Thurgood Marshall, once stated: “We must dissent from apathy. We must dissent from fear, the hatred and mistrust. We must dissent from a nation that has buried its head in the sand, waiting in vain for the needs of its poor, its elderly, and its sick to disappear and just blow away. We must dissent from a government that has left its young without jobs, education or hope. We must dissent from the poverty of vision and the absence of moral leadership. We must dissent because America (we) can do better, because America (we) has no choice but to do better.” We are gathered here today in the hallowed grounds of the University of Johannesburg (UJ) to pay special homage to you, the Class of 2015, for your monumental achievements. We all know that 2015 was not an easy year. It was the year of student uprisings in all our universities. You had to contend with the turbulence and chaos brought about by the student uprisings. It was the year of the #RhodesMustFall followed by the #FeesMustFall campaigns - students’ activism at its best. Undoubtedly, this must have had a serious toll on your studies. Notwithstanding all these distractions, you made it – hence we are gathered here today to honour you. Undoubtedly, this is eloquent testimony to your dedication, commitment, hard work, resilience, tenacity and an unwavering resolve to succeed and achieve your goals at all costs. I salute you for that. Indeed we are proud of you! Without doubt this is both a momentous and life-changing day for all of you - a day of glory, not only for you and your loved ones, but for the nation at large as well. We join and share with you in your joy and the euphoria engendered by your successes. However, what all this means is that your student days – the carefree days, are over. We are now opening new doors for you – doors to an active professional life – a life that comes with responsibilities and not a life of false elitism. False elitism is an insidious but dangerous illness - it will alienate you from your people - cut you off from your roots. I plead with you not to allow the conferring of degrees on you to lull you into a false sense of comfort. This should not be the end of your dreams. Instead, this should be a sobering moment for you to reflect on your next life - is it going to be a life of wealth accumulation and self-aggrandisement or a life of dedicated and selfless service to the people? Introducing the New Executive Dean of UJ’s Faculty of Law Prof Letlhokwa George Mpedi has been appointed the first Black African Executive Dean of the Faculty of Law at the University of Johannesburg. He completed his BJuris degree (1996) and LLB degree (1998) at Vista University. In 2001 the LLM degree in Labour Law was conferred upon him by the then Rand Afrikaans University (now University of Johannesburg). He was twice the recipient of the Deutscher Akademischer Austauschdienst (DAAD) award (in 2000 and 2001, for purposes of doing research in Germany for his LLM dissertation and LLD thesis respectively). A National Research Foundation doctoral research award was also granted to him (2002). Upon completing his LLB he was employed as a Junior Lecturer in the Department of Mercantile Law at Vista University (Mamelodi Campus). He joined the Centre for International and Comparative Labour and Social Security Law (CICLASS) at the then Rand Afrikaans University as a researcher in 2000. In August 2003, Prof Mpedi accepted a position as a Research Fellow at the Max Planck Institute for Foreign and International Social Law in Munich (Germany). Upon his return from Germany in 2006, he was employed as a Deputy Director at CICLASS. In the same year the LLD degree in Mercantile Law was conferred upon him by the University of Johannesburg. Prior to his current position as Executive Dean, Prof Mpedi served as Head of Department of Practical Business Law (January 2011 – December 2012), Vice-Dean (January 2013 – December 2015) and Director at CICLASS (January 2009 – December 2015) in the Faculty of Law of the University of Johannesburg. He lectured labour law and social security to LLB, postgraduate and certificate students and has delivered papers at numerous national and international conferences. Prof Mpedi publishes on labour law and social security. Graduation 2016 – Special address by Judge Bosielo Continued...
Transcript
THELEGALTIMES FA C U LT Y O F L A W1 S T E D I T I O N 2 0 1 6 U N I V E R S I T Y O F J O H A N N E S B U R G
Judge Bosielo graced the Faculty of Law with his presence, and a very special speech, at the March graduation ceremony. His full speech is available on the Faculty Facebook page.
Extracts from his speech:
The former Chief Justice of the US, Thurgood Marshall, once stated: “We must dissent from apathy. We must dissent from fear, the hatred and mistrust. We must dissent from a nation that has buried its head in the sand, waiting in vain for the needs of its poor, its elderly, and its sick to disappear and just blow away. We must dissent from a government that has left its young without jobs, education or hope. We must dissent from the poverty of vision and the absence of moral leadership. We must dissent because America (we) can do better, because America (we) has no choice but to do better.”
We are gathered here today in the hallowed grounds of the University of Johannesburg (UJ) to pay special homage to you, the Class of 2015, for your monumental achievements. We all know that 2015 was not an easy year. It was the year of student uprisings in all our universities. You had to contend with the turbulence and chaos brought about by the student uprisings. It was the year of the #RhodesMustFall followed by the #FeesMustFall campaigns - students’ activism at its best. Undoubtedly, this must have had a serious toll on your studies. Notwithstanding all these distractions, you made it – hence
we are gathered here today to honour you. Undoubtedly, this is eloquent testimony to your dedication, commitment, hard work, resilience, tenacity and an unwavering resolve to succeed and achieve your goals at all costs. I salute you for that. Indeed we are proud of you!
Without doubt this is both a momentous and life-changing day for all of you - a day of glory, not only for you and your loved ones, but for the nation at large as well. We join and share with you in your joy and the euphoria engendered by your successes. However, what all this means is that your student days – the carefree days, are over. We are now opening new doors for you – doors to an active professional life – a life that comes with responsibilities and not a life of false elitism. False elitism is an insidious but dangerous illness - it will alienate you from your people - cut you off from your roots. I plead with you not to allow the conferring of degrees on you to lull you into a false sense of comfort. This should not be the end of your dreams. Instead, this should be a sobering momentforyoutoreflectonyournextlife-isit going to be a life of wealth accumulation and self-aggrandisement or a life of dedicated and selflessservicetothepeople?
Introducing the New Executive Dean of
UJ’s Faculty of LawProf Letlhokwa George Mpedi has been appointed the firstBlackAfricanExecutiveDeanoftheFacultyofLawat the University of Johannesburg. He completed his BJuris degree (1996) and LLB degree (1998) at Vista University. In 2001 the LLM degree in Labour Law was conferred upon him by the then Rand Afrikaans University (now University of Johannesburg). He was twice the recipient of the Deutscher Akademischer Austauschdienst (DAAD) award (in 2000 and 2001, for purposes of doing research in Germany for his LLM dissertation and LLD thesis respectively). A National Research Foundation doctoral research award was also granted to him (2002).
Upon completing his LLB he was employed as a Junior Lecturer in the Department of Mercantile Law at Vista University (Mamelodi Campus). He joined the Centre for International and Comparative Labour and Social Security Law (CICLASS) at the then Rand Afrikaans University as a researcher in 2000. In August 2003, Prof Mpedi accepted a position as a Research Fellow at the Max Planck Institute for Foreign and International Social Law in Munich (Germany).
Upon his return from Germany in 2006, he was employed as a Deputy Director at CICLASS. In the same year the LLD degree in Mercantile Law was conferred upon him by the University of Johannesburg. PriortohiscurrentpositionasExecutiveDean,ProfMpedi served as Head of Department of Practical Business Law (January 2011 – December 2012), Vice-Dean (January 2013 – December 2015) and Director at CICLASS (January 2009 – December 2015) in the Faculty of Law of the University of Johannesburg. He lectured labour law and social securitytoLLB,postgraduateandcertificatestudentsand has delivered papers at numerous national and international conferences. Prof Mpedi publishes on labour law and social security.
Graduation 2016 – Special address by Judge Bosielo
Continued...
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The nation has invested heavily in your education. Hence your #FeesMustFall campaign – a clarion call for free education for all. If the nation pays for your education as you demand, correctly so in my view, what do you give to the nation as a quid pro quo? Needless to say that the nation has high expectations and hopes for you. This country is in the throes of an ambitious project of national transformation, socially and economically. It is no secret that our country is in deep crisis. We have all witnessed the titanic political battles being fought by various political parties in Parliament - we have seen the unending spate of violent protests for service delivery across the length and breadth of our beautiful land.
Recent media reports tell us that this country is teetering on the brink of junk status economically - all this is bad news for our nascent democracy - no doubt our dream of a better future as a nation is imperilled. Regrettably, we have lost our glory days of being a miracle nation – the envy of the world – a shining beacon of democracy, political and economic stability – we are on the way to being seen as a pariah state. Our country is a ship on a collision course with an iceberg, and only inspirational and visionary leadership can steer it clear of becoming another Titanic. The nation is looking up to you to use your newly acquired knowledge and skills to navigate and steer it clear of the iceberg, and
to indeed appreciate the fact that the iceberg is far larger than it appears on the surface.Romeisburningunderourwatch-wemuststopfiddling.
Without dedicated, hardworking, conscientious and competent lawyers, the lofty promises of a better life embodied in our Constitution will remain mere pious and idle words. We need you as our new cadre of socially conscious activists and entrepreneurs to turn the Constitution’s aspirations into reality for our people. This is no easy task. However, the work has begun in earnest already.
It behoves me to tell you that you are the new cadre of lawyers in the making who must evince the spirit and commitment to serve humanity – use law as a tool for social change – a tool to heal ruptured human relations - yes, money will come your way but it should not be the be-all and end-all - do not allow money todefineyou-gooutthereandservethepeoplewithhonour,dignity,humilityandselflessness.Indoingsoyouwillearnyourbadgeofhonourandaprofoundsenseoffulfilment.Yourswillbealifewithapurpose–alifeworthliving.
I hope that this speech will inspire you to be lawyers in the true sense of the word – lawyers who are imbued with an acute sense of justice and social consciousness-lawyerswhoarewillingtofightgallantlyforequalityandsocialjustice for all - lawyers who are archenemies of any form of injustice - staunch defendersofdemocracy-LAWYERSFORTHEPEOPLE.
DR M ROOS
What have you been up to the last five years? In 2011 I enrolled for an LLM in International Law and International Relations at the University of Kent in the United Kingdom. I completed the degree in 2012 and moved back to South Africa. From 2012 to 2013, I served as a law clerk to the Honourable Justice RMM Zondo at the Constitutional Court of South Africa. After the one-
year clerkship had expired, I enrolled for an LLD on nuclear weapons and energy in international law under the supervision of Prof Hennie Strydom (NRF Research Chair in International Law). Whilst completing the LLD, I also worked as a research and writing assistant at the University of Johannesburg’s Faculty of Law. I completed my LLD at the end of 2015 and was appointed as a full-time lecturer in the Faculty in 2016.
What is your role within the Faculty of Law and what subjects/year groups will you be teaching? I have been appointed as a full-time lecturer. I lecture Introduction to Legal Studies tofirst-yearstudents.
What is your main area of expertise/interests? Public international law (particularly nuclear-weapons issues, international humanitarian law, human rights law and international criminal law).
What are some of the professional goals you are striving to achieve within the next 10 years? To publish numerous articles in reputable and accredited international journals and to qualify to be promoted to full professor within the next 10 years.
Something personal… I love cooking, reading and playing the piano. My husband and I are expectingourfirstbabyinJuly2016.
DRMNYENTI
What have you been up to the last five years?InthelastfiveyearsIhaveperformed the roles of researcher at the Centre for International and Comparative Labour and Social Security (CICLASS) while teaching
labour law and social security. I also completed the LLD with UNISA in 2013. After the doctorate, I was appointed as a Postdoctoral Research Fellow at the Centre in 2014 and 2015.
What is your role within the Faculty of Law and what subjects/year groups will you be teaching? I teach Labour Law to Human Resources Management honours students during thefirst semester andSocialSecurity to fourth-year LLB students in the second semester.
What is your main area of expertise/interests? My main areas of expertise are Labour Law and Social Security, although Social Security is the more developed area.
What are some of the professional goals you are striving to achieve within the next 10 years? My professional goals for the next 10 years are to become a professor and attain an NRF A rating.
Something interesting… At the end of October 2015, a publication in two volumes, edited by CICLASS and Friedrich-Ebert-Stiftung Zambia andauthored by Prof Mpedi and myself, Dr Nyenti, was launched.
Professor Van der Linde awarded prestigious INSOL awardProf Kathleen van der Linde, the University of Johannesburg (UJ) Head of Department for Mercantile Law, has been selected as the INSOL Scholar for a period of two years.
INSOL is the acronym for the International Association of Restructuring, Insolvency and Bankruptcy Professionals, a worldwide federation of national associations of lawyers and accountants specialising in turnaround and insolvency.
She will conduct research on the reorganisation of share capital in company restructuring plans, including through debt to equity conversions.
“This topicdrawstogethermyexpertise incorporatefinanceandcorporateinsolvency law and further accommodates my interest in tax considerations pertinent to corporate restructuring,” said Prof Van der Linde.
“I hope to devote an upcoming sabbatical leave period to this project. With the technical support of INSOL and the generous funding attached to this award, I aim to undertake a comparative study spanning 10 jurisdictions in developed as well as emerging jurisdictions,” she concluded.
INSOL has 45 member associations with over 10 000 professionals participating as members of INSOL International. INSOL also has ancillary groups that represent the judiciary, regulators, lenders and academics. The scholarship is an initiative of INSOL to work more closely with the academic profession andtosupportresearchonaspecificareathatcouldbenefititsmembership.Prof Van der Linde, a member of the INSOL Academic Group, was chosen by a selection panel on the basis of her project proposal and publication record.
We congratulate Prof Kathleen van der Linde on this prestigious international scholar award.
New appointments within the Faculty
Some people feel like Law family already, even though they were only appointed full time at the end of 2015. We spoke to Dr M Roos and Dr M Nyenti…
Prof Thabo Legwaila scrutinises the complexities of tax avoidance
Professorial inaugural address: Thabo Legwaila
Multiple tax exposure to bountiful provisions all seeking to achieve the same goal of curbing tax avoidance, creates uncertainty in the tax treatment of transactions. Thabo Legwaila, a professor of Mercantile Law at UJ Law, argued that this could deter foreign investors seeking to enter South Africa. Prof Legwaila examined the impact of the rapidly increasing conundrum of curbing tax avoidance when he delivered his inaugural address in the Council Chambers on Wednesday 2 March 2016.
Prof Legwaila’s address focussed on the complexities that might have the effect of encouraging local investors
to invest elsewhere, or even worse, re-domicile. In addition, the compliance burden occasioned by these multitudes of provisions is enormous.
“Most investors would not be able to determine the tax implications of interest financing without extensiveassistance from the tax consultants and lawyers, he said. “In any tax system, it is undesirable to have high non-productive compliance costs in the form of tax fees to lawyers and consultants being at the forefront of investment due diligence.”
Prof Legwaila suggested that various corrective measures could be taken to limit the negative impact brought by the application of the anti-avoidance measures without compromising the integrity of the anti-avoidance nature of the provisions.
“A general corrective measure could be to unify interest deductibility rules (or tax treatment of interest as a general matter) and eliminate exposure to multiple provisions. Specificandtargetedmeasurescouldalso be taken in respect of certain provisions, such as increasing the threshold for a controlling relationship to a higher percentage, for example 70% in line with connected person requirements,” said Prof Legwaila.
He added that supplementary interpretative and practice resources, such as interpretation notes, could also be used to clarify the provisions, clearly separating the transactions to which the provisions apply, and thereby reducing reliance on tax advisors.
Did you know…?• Ms Sicelimpilo Mguni was
awarded one of The Mandela Rhodes Foun dation Scholarships. She is registered for the LLM in Tax Law for 2016.
• Mr Lebina Phukuile was awarded the 2016 PPS bursary of R40 000!
• The captain of the UJ Varsity Cup rugby team, Jacobus Porter, is not only a top athlete, but also a Law student! Congratulations on a good season.
Front row: Adv E A Fredericks (Deputy Director); Her Excellency Ambassador N G P O Tambo (Ambassador of the Republic of South Africa to the Republic of Italy); Prof J L Neels (Director; Distinguished Professor)
Back row: Ms S Reddi (lecturer; research associate); Ms T Jacobs (secretary); Mr G J Bouwers (lecturer; research associate); Ms R Cupido (lecturer; research associate); Ms A Jacobs (secretary); Dr S Khanderia-Yadav (postdoctoral
fellow); Mr J A Botha (academic assistant); Prof M G Martinek (Distinguished Visiting Professor); Mr F Adams (lecturer; research associate).
Seen at the Faculty • HerExcellencyAmbassador Tambo visited the Faculty
of Law on 15March 2016 to officially open the newofficesoftheResearchCentreforPrivateInternationalLaw in Emerging Countries. Ms Tambo is the SouthAfrican ambassador to the Republic of Italy.
• Prof Jane Ginsburg, a world renowned specialist in copyright law, delivered a lecture on the protection of useful Law articles on 19 February.
• Prof Byrne served as a panellist at a two-day Banking conference hosted by the Centre for Banking Law and the JCCI. He is the Director of the Institute of International Banking Law and Practice, Inc and was a member of the Faculty of George Mason University School of Law for over 30 years. He is the editor of Documentary Credit World, a monthly journal on letter of credit law and
practice, and has written or edited more than 20 books and numerous articles and lectured extensively on LC law and practice, electronic commerce, international salesofgoods,andcommercialandfinancialfraudinmore than 40 countries.
• Ms Insa Blanke,ExecutiveDirectoroftheForeignandInternational LLM programmes at the Loyola University Chicago, visited the Faculty of Law during March 2016.
• It is always a pleasure seeing Prof MG Martinek, UJ Law’s distinguished visiting professor from the University of Saarland, Germany, at the Faculty.
• The Cornell University Law School, Institute of African Development, and Faculty of Law, University of Johannesburg (CULA, IAD-UJ) Winter School Programme took place again in the beginning of 2016. Plus minus 15 international visitors were received. These international students are blown away by the Faculty’s expertise and the beauty of our country every year.
Something personal... • Two admin staff members of the Faculty turned 50 this year. Monica and
Tersia, together you are sharing a hundred years of experience with us! Happy birthday…
• Four staff members will be having babies this year… Lara, Marieke, Rethabile and Mispa (x2), may you be blessed with happy, healthy bundles of joy.
• Creative writing competition: The decolonisation of legal education in South Africa in the aftermath of #FeesMustFall. More info on the notice boards and Facebook. Big prizes up for grabs.
• 2 Min Dissertation Competition! Taking place in August, this will be a highlight on the post-graduate calendar.
• On 26 and 27 May 2016 SAIFAC will be hosting an international conference on Has the South African Constitution Performed over the Past 20 Years? More info on the UJ Law website.
• The Annual Banking Law Update will be hosted in October this year…as always a number of impressive speakers are expected to deliver papers.
UJ’s Banking Law Conference builds a strong network of academics and financial institutions against commercial crimeThe Centre of Banking Law at the University of Johannesburg, in partnership with the Johannesburg Chamber of Commerce and Industry (JCCI), hosted an International Banking Conference, which saw panels of South African and foreign experts discussing aspects of banking and international trade law, as well as commercial crime. The central themes of this highly acclaimed conference were demand guarantees, standby letters of credit and commercial crime.
The conference took place in April at the Council Chambers (UJ) and the JCCI Building, both in Johannesburg.
“The purpose of the conference was to identify and address important issues currently affecting guarantee instruments and bank-related commercial crime,” said Prof Charl Hugo, the Director of the Centre for Banking Law at the University of Johannesburg.
Some international speakers included: Prof James Byrne and Mr Christopher Byrnes from the US; Mr Vincent O’Brien from Ireland, Dr Jin Saibo from China and Dr Soh Chee Seng from Singapore. They represent highly acclaimed international expertise in relation to guarantee instruments and commercial crime.
South African speakers were Profs Charl Hugo and Dawie de Villiers of the University of Johannesburg, Profs Michelle Kelly-Louw and Heinrich Schulze of Unisa, Prof Johann de Jager of the South African Reserve Bank, Ms Susan Potgieter of the South African Banking Risk Information Centre (SABRIC) and Brigadier NT Pieterse of the South African Police Service.
Just a few mentionable new publications…• The fifth edition of Nagel (ed) Commercial Law and
Kommersiële Reg recently appeared. Prof Jannie Otto and Ms Kirsten Kern are two of the co-authors of the book.
• The fourth edition of JM Otto (assisted by R-L Otto) The National Credit Act Explained is now on the shelves.
• Dr J.-M. Iyi recently published Humanitarian Intervention and the AU-ECOWAS Intervention. Treaties under International Law. Towards a Theory of Regional Responsibility to Protect.
• The book International Law was edited and co-authored by Prof Hennie Strydom.
• Prof Kathleen van der Linde contributed to the new book Financing Company Group Restructuring.
• Prof Letlhokwa George Mpedi and Dr Mathias Ashu Tako Nyenti were the editors of two books recently, COMPENDIUM of Key International, Regional and Sub-regional Social Security Instruments and Key International, Regional and National Instruments Regulating Social Security in the SADC; A General Perspective.
