Appeal Judgment Research Articles

The Ongwen Judgments

Abstract The Ongwen trial and appeal judgments are an affront to child soldiers everywhere and to international criminal justice. The judgments fail to treat Mr Dominic Ongwen as an individual within his own social context, in which culture and race are significant factors. The Chambers invisibilized the victimization of Mr Ongwen within the cruel and ruthless conditions of the Lord’s Resistance Army (LRA) as a child and young adult. Seeking justice for Mr Ongwen and ensuring he had a fair trial has been a Sisyphean struggle for the defence counsel, who have tried to humanize the lived experience of our client within the courtroom of the Hague. The Chambers acknowledged the brutality and bestiality of the LRA, led by Joseph Kony, yet created an ‘Ongwen Exception’ that dehumanized him as detached from the Court’s previous rulings on the long-term social and psychological effects of being forcibly recruited as a child soldier. In these observations, the Defence discusses Mr Ongwen’s social context, emphasizing the importance of culture and race within it, and the dangers of the Chambers’ rote and narrow interpretation of Article 26 ICC Statute, which underlies Mr Ongwen’s convictions.

Modeling appeals in university accreditation in Chile: an exploratory study

ABSTRACT In Chile, university administrators may appeal to a secondary agency to challenge the accreditation decisions of the primary national accreditation agency. The study analyzes the appeal judgments, using an empirical approach to identify arguments used by the secondary agency to justify its decisions. The analyses identify several factors, such as improvements since the last accreditation, faculty productivity, and financial standing, as the most relevant predictors of appeal success. The appellate agency, however, tends to emphasize the absence of deficiencies or weaknesses associated with these factors when it grants an appeal, sidestepping the primary agency’s criteria and standards for accreditation. Such an approach may be appropriate given the heterogeneous landscape of the Chilean higher education system, providing leeway to drive excellence in more selective institutions while maintaining some minimum standards in less selective ones.

THE COMPANIES ACT 71 OF 2008 DOES NOT OUST THE COMMON-LAW DERIVATIVE ACTION FOR CLOSE CORPORATIONS Naidoo v The Dube Tradeport Corporation [2022] ZASCA 14

The Companies Act 71 of 2008 (2008 Act) abolished the common-law derivative action for companies; section 165 of the 2008 Act replaced it with the statutory derivative action (Griggs “The Statutory Derivative Action: Lessons That May Be Learnt From the Past!” 2002 University of Western Sydney Law Review par 1.2; Coetzee “A Comparative Analysis of the Derivative Litigation Proceedings Under the Companies Act 61 of 1973 and the Companies Act 71 of 2008” 2010 Acta Juridica 298). The question that remained was what impact this would have on common-law rights for close corporations that had been incorporated before the commencement of the 2008 Act but which have not converted to companies under that Act. The Supreme Court of Appeal (SCA) judgment in Naidoo v The Dube Tradeport Corporation ([2022] ZASCA 1) provides much-needed clarity on the status of the common-law derivative action for close corporations. The case also provides guidance on how a court will assess whether knowledge of information can be imputed to a third party in their dealings with a close corporation.

United Kingdom Patent Decisions 2023

This report highlights a selection of the most important UK patent decisions from 2023, including: one Supreme Court judgment dealing with artificial intelligence; five Court of Appeal judgments (one relating to confidential information, one dealing with plausibility, two dealing with patent revocations and one addressing unjustified threats); seven Patents Court judgments (two undertaking a FRAND determination, one dealing with FRAND generally, three patent revocations and one dealing with experts’ duties); and one High Court decision from the Chancery Division regarding artificial intelligence.

Bilingual Statutory Interpretation and the United Kingdom: Domestic Law and International Experiences

Abstract This article explores the emerging need for bilingual statutory interpretation within the United Kingdom and explains the significance of the High Court and Court of Appeal judgments in R (on behalf of Driver) v Rhondda Cynon Tâf County Borough Council both in terms of the process of statutory interpretation and with regard to its potential impact on the future of England and Wales as a unified jurisdiction. It draws upon the UK’s approaches to multilingual obligations under international law, and on comparative experiences of multilingualism within a domestic legal system.

Communicating Justice: Cambodian Press Coverage of the eccc’s Final Judgment

Abstract This article explores Khmer-language media reporting of the final appeal judgment at the Extraordinary Chambers in the Courts of Cambodia (Case 002/02). Media reports are interesting for two reasons. First, as a source of opinions expressed in Cambodia’s official language (Khmer), which often remain beyond purview of international observers. Second, as one of the few sources of information about the eccc available to the Cambodian public now that official Court outreach has largely ceased. Yet, free media is significantly curtailed in Cambodia, and reporting on the eccc is likely to be shaped by what is politically safe to print, as well as what is deemed publicly interesting. Against this backdrop this article explores: the press’s tendency to downplay Cambodian political interference in the eccc proceedings; its (mis)representation of the eccc’s genocide findings; its reporting on the prosecution of sexual and gender-based crimes; and its use of ‘justice for victims’ rhetoric.

THE VALUE OF A NEIGHBOUR’S VIEW

The recent judgment of the Supreme Court of Appeal in Paola v Jeeva NO (2004 1 SA 396 (SCA)) has caused quite a stir in the property industry. The court ruled that in terms of section 7(1)(b)(ii)(aa)(ccc) of the National Building Regulations and Building Standards Act 103 of 1977 a local authority cannot approve a building plan if the proposed building would obstruct the view from an adjoining property to such an extent that the obstruction would in fact derogate from the market value of the latter property. Some property practitioners have interpreted the judgment to mean that a municipality is now prohibited from approving the building plan relating to the construction of any building if the proposed development would impair the view from an adjoining property. Many believe that“the logical conclusion of the … decision is that he who first develops his property may be able to prevent his neighbours from developing their properties in similar fashion, to any extent that it detracts from his view”.Based on this interpretation of the judgment, owners of vacant land in coastal resorts whose view is currently obstructed by an existing building may rightfully fear that they will be forced to live with this given the position that they cannot build a double storey to obtain some view if by doing so they would, in turn, obstruct the view from an adjoining property. In fact, this belief has prompted some estate agents to advise sellers of vacant land that since they cannot erect a building obstructing their neighbour‟s view, the value of their properties has been diminished substantially, hence they should lower their asking price. Against this background it is perhaps not surprising that it has been suggested that the judgment “cannot be a correct interpretation of the relevant section” and that the Supreme Court of Appeal “needs to reconsider its broad-brush approach to the meaning of value … and in any event that the legislature needs to amend the section to ensure that it is interpreted sensibly”.The purpose of this note is to place the Supreme Court of Appeal's judgment in proper perspective. It is submitted that the decision is perfectly correct and, properly interpreted, does not support any of the aforesaid contentions.

WAS JUSTICE DONE? Ntamo v Minister of Safety & Security 2001 1 SA 830 (Tk); Minister of Safety & Security v Ntamo 2003 1 SA 547 (SCA)

Minister of Safety and Security v Ntamo 2003 1 SA 547 SCA is a case which turned on the issue of private defence. The respondent (plaintiffs), who had succeeded in the trial court (Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk)) in a dependant‟s action, comprised the wife and children of the deceased. The deceased had been shot dead by members of the South African Police Services.The Supreme Court of Appeal (SCA) judgment (Minister of Safety and Security v Ntamo 2003 1 SA 547 (SCA)) is clearly more defensible than that of the trial court. Both judgments however require some comment: the trial court judgment for an observation of some difficulties in adjudicating upon private defence, particularly since the SCA judgment adopted a different route and did not engage with the difficulties encountered by the trial court, and as such issued no confirmation nor corrections. The SCA judgment is brief (four pages) but requires comment, briefly, on the burden of proof resting on the defendant who raises private defence.

Putting a Social and Cultural Framework on the Evidence Act

What follows are presentations to a seminar on the Supreme Court decision in Deng v Zheng (2022): guidance on bringing relevant social and cultural information to the court’s attention. The case concerned whether, despite a lack of formal documentation, the parties had entered into a legal partnership, of which they would be jointly responsible for the debts of the partnership. Two issues arose relating to the culture of the parties: namely, whether the meaning to be ascribed to 公司 (gingsi) went beyond ‘company’ and could extend to ‘firm’ or ‘enterprise’ and the significance of 关系 (guanxi). Both parties are Chinese and their business relationship appeared to have been conducted in Mandarin. Justice Goddard was the presiding judge in Zheng v Deng (2020), the Court of Appeal judgment appealed to the Supreme Court. Mai Chen appeared with two other lawyers on behalf of the intervenor, the New Zealand Law Society.
 Keywords: social and cultural framework; Evidence Act; expert evidence; translations; interpreters; adjudicative facts; social facts; legislative facts; stereotyping; subconscious bias; judicial notice; reliable published documents.

Making sense of noncitizens’ rights claims in asylum appeal hearings: practices and sentiments of procedural justice among German administrative judges

ABSTRACT Ethnographically exploring how German judges in administrative courts of first instance navigate the practical, political, legal and ethical dilemmas of deciding on asylum appeals, this article identifies the oral hearing in asylum adjudication as a site of citizenship struggles in which rights claims by noncitizens undergo subtle transformations through the manner in which procedural rules are interpreted and enacted. Building on observations of asylum appeal hearings, conversations and focus group discussions with judges, I show that practices and sentiments of procedural justice among asylum appeal judges are at the core of these transformations. Hence, I argue for renewed analytical and conceptual attention to citizenship struggles that take place in webs of social relations within the realm of state law and across a graduated set of formal legal statuses for noncitizens.

Delictual liability for injuries suffered at childcare centres

The Constitutional Court has recently given an important judgment about the delictual liability of the state for injuries sustained by a child at an early childhood development (ECD) centre: BE obo JE v MEC for Social Development, Western Cape. The Court substantially confirmed the Supreme Court of Appeal (SCA) judgment in the same matter. Both judgments built upon the preceding SCA judgment in Government of the Western Cape: Department of Social Development v CB, which, like BE, involved a tragic accident at an ECD centre. With the appearance of these judgments, it is a good time to assess our courts’ willingness to provide delictual remedies for injuries suffered at childcare centres, and to consider the status of South African public authority liability in general. I explain that the omissions liability of public authorities for negligently caused bodily injury has expanded significantly since 2002. The High Court judgments in BE and CB, which imposed liability on the Department of Social Development, were consistent with this. But the appellate judgments may suggest a retreat from our law’s expansionary approach. I discuss the reasons of policy and principle why such a retreat might be welcome, both for organs of state and the legal system as a whole. I also consider the potential delictual liability of the ECD centres themselves, as well as local authorities, for incidents of the kind in BE and CB. Finally, I consider two hypothetical cases that help to illustrate potential future developments for public authority liability in South Africa.

Novel climate tort? The New Zealand Court of Appeal decision in Smith v Fonterra Co-operative Group Limited and others

In Smith v Fonterra the New Zealand High Court and Court of Appeal struck out all causes of action in proceedings seeking orders that seven New Zealand companies cease direct and indirect greenhouse gas emissions by 2030 grounded in the three distinct claims of negligence, public nuisance and a proposed novel tort referred to as “breach of duty”. The Court of Appeal's judgment is under appeal before the New Zealand Supreme Court. This commentary seeks to open up discussion around the reasons given for the various aspects of the judgment. In particular the commentary puts the view that there is scope for the creation of a novel common law climate tort. This tort must be forward-looking and preventive in orientation and may differ fundamentally from existing torts.

An Uncertain Future for EU-Level Collective Bargaining: The New Rules of the Game After EPSU

Abstract The General Court of the European Union (GCEU) in EPSU and Goudriaan vs. Commission and the Court of Justice of the European Union (CJEU) in the subsequent appeal judgment reached an identical conclusion on a key aspect of the system of EU level collective bargaining. The Courts held that Article 155(2) of the Treaty on the Functioning of the European Union (TFEU) does not impose any obligation on the European Commission to send a social partner agreement to the Council. This is in line with the Commission’s recent interpretation of Article 155(2) TFEU that subordinates the implementation of the European agreements to a positive assessment of their appropriateness. This article critically assesses the GCEU and CJEU rulings in EPSU and argues that they confirm a major break with the praxis of European collective bargaining that will have negative consequences for the social partners’ autonomy and role in the EU. In order to better understand this break, the article examines how and when the Commission changed its approach to European social dialogue, resulting in the new interpretation of Article 155(2) TFEU, and proposes a hypothesis to understand why. The article concludes by describing the consequences of the new reading of Article 155(2) TFEU for the idea of collective autonomy in EU law as well as for the practice of EU level social dialogue and collective bargaining.

United Kingdom ∙ The Court of Appeals Judgment Concerning the Legality of the ‘Immigration Exception’ for Data Processing

United Kingdom ∙ The Court of Appeals Judgment Concerning the Legality of the ‘Immigration Exception’ for Data Processing

Sequential Multi-Task Learning with Task Dependency for Appeal Judgment Prediction

Sequential Multi-Task Learning with Task Dependency for Appeal Judgment Prediction

Notes: Managing and participating in a criminal enterprise under POCA: Duplication of convictions? A discussion of the conflict between S v Prinsloo and S v Tiry

Some debate exists as to whether convicting an accused of both participating in and managing a criminal enterprise under chap 2 of the Prevention of Organised Crime Act 121 of 1998 constitutes an impermissible duplication of convictions. This note analyses the relevant provisions of the Act, and the concept of duplication of convictions, against two conflicting Supreme Court of Appeal judgments, namely S v Prinsloo 2016 (2) SACR 25 (SCA) and S v Tiry 2021 (1) SACR 349 (SCA). In these two cases the court reached diametrically opposite conclusions on the same legal question, creating uncertainty. Ultimately, the question whether a duplication of convictions has occurred depends on the facts of each case, and the extent to which managers-cum-participants have ‘dirtied their hands’ in the pursuit of the criminal enterprise. Foreign perspectives from United States constitutional jurisprudence will also be considered.

King NNO V De Jager 2021 4 SA 1 (CC): Three Perspectives

In the King case, the South African Constitutional Court adjudicated on a gender-based disinheritance under a testamentary fideicommissum. The court, in three judgments, found that the disinheritance violated public policy and was, moreover, unconstitutional and thus invalid. King was the Constitutional Court’s first pronouncement on a gender-based disinheritance in a purely private bequest. It therefore stands in contrast to earlier High Court and Supreme Court of Appeal judgments regarding the exclusion of potential beneficiaries under testamentary charitable bequests. This contribution provides three perspectives by commentators from three jurisdictions on the Constitutional Court’s judgment in King. The first perspective argues against an objection that can be raised against a judgment such as King, namely that it constitutes an unjustified judicial violation of personal autonomy, freedom of disposition and private property in the law of gifts and trusts. The first perspective posits that discriminatory goals such as those pursued through explicit gender-exclusive disinheritances are inherently worthless and the judicial invalidation of such disinheritances therefore have a negligible impact on personal autonomy, freedom of disposition and private property. The second perspective cautions against the Constitutional Court’s express rejection of the public/private divide in the law of gifts and trusts. It argues that the divide plays an important role in striking a balance between personal autonomy, freedom of disposition and private property on the one hand, and policy as well as constitutional imperatives regarding equality and non-discrimination on the other hand. The second perspective thus advocates that the public/private divide must be retained in the law of gifts and trusts. The third perspective evaluates the King case from a German viewpoint and argues that the Constitutional Court’s reasoning in this case undervalued freedom of testation. The third perspective advances a solution that strives to balance the arguments that underpin the first and second perspectives.

Priming Ideology? Why Presidential Elections Affect U.S. Judges

U.S. Presidential elections polarize U.S. Courts of Appeals judges, doubling their dissents, partisan voting, and lawmaking along partisan lines and increasing their reversal of District Court decisions (Berdejo and Chen 2016). Dissents are elevated for ten months before the Presidential elections. I develop a theoretical model showing that the salience of partisan identities drives these behavioral patterns. The polarizing effects are larger in close elections, non-existent in landslide elections, and reversed in wartime elections. I link judges to their states of residence and exploit variation in the timing and importance of a state during the electoral season. Dissents are elevated in swing states and in states that count heavily to winning the election, when these states are competitive. U.S. Senate elections, the timing of which also varies by state, further elevate dissents. I link administrative data on case progression and frequency of campaign advertisements in judges’ states of residence to proxy for a state’s importance during Presidential primaries. Dissents occur shortly before publication, increase with monthly increases in campaign ads, and appear for cases whose legal topic, economic activity, is most heavily covered by campaign ads. Finally, I link the cases to their potential resolution in the Supreme Court. Dissents before elections appear on more marginal cases that cite discretionary miscellaneous issues and procedural (rather than substantive) arguments, which the Supreme Court appears to recognize and only partly remedy. The behavioral changes of unelected Courts of Appeals judges are larger than the behavioral changes of elected judges running for re-election.

A lesson in un-creativity: (R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52

Plans for a third runway at Heathrow airport have been the subject of ongoing melodrama. In the latest instalment, (R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52), the Supreme Court comprehensively reversed the Court of Appeal's judgment, rejecting the finding that the decision maker acted unlawfully in designating the Airport National Policy Statement (ANPS). This commentary highlights that the Supreme Court judgment signals a missed opportunity to develop a more creative approach to the polycentric and dynamic issue of climate change in the context of nationally significant infrastructure projects. It argues that the decision is, if not wholly unexpected, a disappointing one.

Prosecutor v. Mladić (U.N. Int'l Residual Mechanism Crim. Tribunals App. Chamber)

On June 8, 2021, the UN International Residual Mechanism for Criminal Tribunals (Mechanism) Appeals Chamber delivered its appeals judgment in Prosecutor v. Ratko Mladić. The judgment affirmed the 2017 trial judgment of Trial Chamber I of the UN International Criminal Tribunal for the former Yugoslavia (ICTY), which convicted Mladić, the Bosnian Serb commander, of genocide, crimes against humanity, and war crimes during the war in Bosnia between 1992 and 1995, as well as affirming his sentence of life imprisonment. This constituted Mladić's final appeal, opening the door for his assignment to a prison somewhere in Europe.