The Centre established a Children's Litigation Project in August 2003, and has undertaken impact litigation in the High court, Supreme Court of Appeal and the Constitutional Court.

Advocate Ann Skelton is the Director of the Centre and the project is currently dealing with a number of cases.

The two cases at the Constitutional Court that the Centre is currently involved in are as follows:

17 February 2009 Biowatch v Registrar Genetic Resources and Others

This case is about the awarding of costs in public interest cases. The general rule, developed by the CC, has been that where an organisation litigates in its own name in the public interest, it will not attract a costs order, unless its conduct in the litigation is reckless or vexatious.

In this matter, Biowatch (an environmental watchdog organisation) brought an application to obtain information about genetically modified foods. The original application was against various government bodies that deal with agriculture. A company called Monsanto then successfully applied to enter the case because they felt that the application put their interests at risk (they manufacture GMFs). In the end, Biowatch got the information they requested, but Monsanto argued that they had drawn their notice of motion too broadly, had wasted the court's and the parties' time, and that they must pay the costs of Monstanto. The court ordered Biowatch to pay Monsanto's costs. Biowathc appealed (in the issue of costs only) to a full bench and lost. They petitioned the Con Court for direct access for leave to appeal and were denied. They then petitioned the SCA for leave to appeal and were denied. They then returned to the Con Court and filed their application for leave to appeal. The Centre for Child Law and Lawyers for Human Rights applied to enter as amici curiae because they have an interest in the issue of costs in public interest litigation.

This should be a very intersting case. Biowatch is represented by Gilbert Marcus SC and Richard Moletree. The amici are represented by Steven Budlender. Monsanto is represented by Frank Snykers.

5 March 2009 Centre for Child Law v Minister of Justice and Others.

The case is about the sentencing of children. This a constitutional challenge to the law which currently provides that young offenders who are 16 or 17 years of age must be sentenced according to the minimum sentences law when they are convicted of serious crimes. These sentences include life imprisonment or very long sentences such as 20 years in prison. The sentences are a required starting point, and the courts may only depart from them if the offender shows that there are substantial and compelling reasons to do so.

The application to have minimum sentences declared unconstitutional insofar as they affect children - was brought by the Centre for Child Law. The High Court declared the offending sections to be unconstitutional because they go against an important constitutional rule: i.e. for child offenders, imprisonment must be a measure of last resort and for the shortest period of time. The High Court found that the minimum sentencing regime in fact produces the opposite result: namely that imprisonment becomes a first resort and for the longest period of time. The Court reiterated the approach of the Supreme Court of Appeal which ruled in 2006 that when sentencing child offenders, the courts must start with a clean slate. The final resulting sentence might still be a long period in imprisonment, but the process used to reach that result was different.

The Centre for Child Law has now applied for the order of invalidity to be confirmed by the Constitutional Court The Minister of Justice has appealed, arguing that the effect of the minimum sentencing law is not unconstitutional for 16 and 17 year olds, and that whether a court starts with a clean slate or at the other end of the spectrum with a minimum sentence is merely academic. The Centre acts in the public interest on behalf of all children who are risk of being sentenced to minimum sentences. The Centre is represented by Steven Budlender and Ann Skelton, the Minister of Justice is represented by Willie Duminy SC and Dheshni Pillay.

Opportunity for a maximum of 15 law students to observe current cases at the Constitutional Court

Please note that opportunities exist for a maximum of 15 students to attend these upcoming court sessions during February

and March 2009. Transport will be provided by the Faculty. Attendance of these sessions at the Constitutional Court is subject to attendance of a briefing session, tentatively scheduled for 10 February 2009 (more details to be made available in due course). Once students' participation in the visit to the Constitutional Court is confirmed by my office, the onus remains on the relevant students to inform their lecturers of their absenteeism on a particular day.

How to apply

Kindly add your name to the list outside my office (Room 1-55.4) by 4 February 2009.
 

Regards

Elzet Hurter

Student Development Officer

Faculty of Law