Paul Jacobson

A judgment handed down by the Durban High Court on Monday, dismissing an appeal launched by the Department of Correctional Services against a ruling that prisoners be given anti-retroviral treatments, includes a finding that the Government was in contempt of a court order.  This has prompted concern that we may be on the brink of a constitutional crisis in this country.  According to IOL HIV/AIDS:

The country could be facing a constitutional crisis over the government’s attitude to Aids treatment for prisoners, a High Court judge has warned.

Judge Chris Nicholson was dismissing an appeal in Durban on Monday by the department of correctional services against an order to immediately provide antiretroviral (ARV) treatment at Durban’s Westville Prison.

He said the respondents, who included the government as a whole, were in contempt of the June 22 court ruling, which obliged them to file an affidavit explaining how they were going to implement the treatment.

“If the government of the Republic of South Africa has given an instruction ‘not to comply with the execution order’ then we face a grave constitutional crisis involving a serious threat to the doctrine of the separation of powers,” he said.

“Should that continue, the members of the judiciary will have to consider whether their oath of office requires them to continue on the bench.”

The Treatment Action Campaign, which brought the application along with 15 prisoners, welcomed his ruling.

“It’s one of the most critical judgments we’ve had,” TAC general secretary Sipho Mthathi said in Cape Town, “not only because it reinforces the foundations of our constitution, but it also warns against what we fear is an emerging crisis, and that is the government becoming a law unto itself.”

Mark Heywood, spokesperson for the Aids Law Project, said the ruling marked a good day for prisoners and a bad day for the government.

“This judgment has to be one of the most damning of government conduct since the advent of our new constitutional order in 1994,” he said.

The separation of powers doctrine states that each branch of government (the executive, legislature and judiciary) must remain separate and not be interfered with by the other branches of government.  Government’s failure to comply with the court’s order is the latest in a line of problematic decisions which threaten to infringe upon this constitutionally guaranteed doctrine and the rule of law itself.

So what now?

Judge Nicholson said in Monday’s ruling: “If the refusal to comply does not result from instructions from the first respondent, the government of the Republic of South Africa, then the remaining respondents must be disciplined, either administratively or in an employment context, for their delinquency”.

Other respondents are the head of Westville correctional centre, Correctional Services Minister Ngconde Balfour, Health Minister Manto Tshabalala-Msimang, and the KwaZulu Natal commissioner of correctional services and the province’s MEC for health.

Judge Nicholson said that until section 3 of the State Liability Act 20 of 1957 was declared unconstitutional, any court order against the state would be “a useless thunderbolt”.

He gave the department until September 8, 2006 to show that it was complying with Judge Pillay’s order. - Sapa

Another crisis of sorts may be looming with Health Minister, Manto Tshabalala-Msimang’s advocacy of a diet of beetroot, lemons and garlic as a means to combat HIV/AIDS.  The Minister’s comments were harshly criticised recently and there were renewed calls for her dismissal for her increasingly marginal views on the treatment of patients with HIV/AIDS.  It now seems that the Minister is acting unlawfully by making the claims she has been making about the therapeutic value of her vegetable diet.  According to IOL Health:

Health Minister Manto Tshabalala-Msimang is breaking the law by making unproven claims about the effectiveness of alternative “treatments” for Aids, according to the South African Medical Association.

In a statement on behalf of the association, Sama chairperson Dr Kgosi Letlape said any claims of therapeutic effectiveness made without clinical trials and approval by the Medicines Control Council were illegal.

“I implore the minister to refrain from breaking the laws of the country,” he said.

“In terms of the laws of this country, anything considered therapeutic should be registered for that purpose, and people have to submit proof that it is therapeutic.

“And until that is done, you cannot go onto public fora and claim that it is therapeutic.”

This controversy begs the question what should be done when a Minister acts unlawfully and arguably negligently in the face of the HIV/AIDS pandemic and the President fails or refuses to take steps to address her conduct.  After the way the President handled Jacob Zuma’s removal from office it is not unreasonable to expect that he adopt the same approach with the Health Minister.  Unfortunately this does not seem to be on the cards and we are left wondering just how serious the government is about the wellbeing of its citizens and the rule of law?

Technorati Tags: aids law project, durban high court, government of the republic of south africa, Manto Tshabalala-Msimang, contempt of court, separation of powers

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A husband and wife team has launched a natural remedies business based on Aloe Ferox remedies in Johannesburg.  According to the Ilessa website:

Ilian and Vanessa have been searching for years for the right opportunity - one that would help people in terms of improving their health and quality of life, or enable them to make a bit of money on the side to support their incomes, or even to simply be able to start their own sales business. Additionally, the products had to be safe, effective and produce outstanding results - and have no bad side-effects.

They never gave up, knowing that something was out there to fulfill this dream. In 2006, the opportunity arrived and Ilian and Vanessa grabbed it with both hands, registered the company and hence the business was born.

Aloe Dew is one product produced by their friend, Maria Smith. Maria is also able to make anything, from body and bath products to medication, in her laboratories where the products are created and clinically tested.

Zora Touch My Skin, one of Maria’s product ranges, belongs to a lady named Nancy Parris. Ilessa is the sole distributor of the amazing Zora Touch product range in South Africa.

An interesting fact about Vanessa is that she has almost total hearing loss in both ears and in recognition of the plight she shares with so many South Africans, Ilessa will donate 10% of its profits towards South Africa’s Cochlear Implant Fund.  For many who have little or no hearing a cochlear implant is the only real chance to regain hearing but the costs remain prohibitively high.  Supporting Ilessa is also your opportunity to support this worthy cause.

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I’ve had this notion bouncing around in my head the last few days that people are generally intimidated by attorneys and prefer to use us about as often as undertakers.  This sort of apprehension is evident in the terminology lay people use.  A classic example is the infamous and terrifying “lawyer’s letter” which seems to have taken on a personality of its own.  When someone talks about a “lawyer’s letter” there is this associated image of a faintly yellowing letter with cryptic, dark lettering threatening all forms of fire and brimstone and which somehow has the ability to flatten you simply by reading it.  I used to laugh when I thought about the fear these letters engender until it occurred to me what a disadvantage this puts lawyers and their clients at.

The way I see it, a lawyer is part of your team.  The law has an impact on virtually every aspect of our life, so much so that simply using lawyers for those issues that jump out at us is about as effective as treating the symptoms and not the malaise.  Often these symptoms can be avoided through some forward thinking.  A good example is to have a lawyer either draft or review agreements before you sign them.  I have seen many examples of agreements which clients put together using a hodgepodge of contractual terms they found online and which they think do the job.  There are a number of disadvantages to doing this, as I pointed out in an earlier post.

Other examples of steps you can take to minimise the risk of a problem down the line include taking advice on how to structure your business (do you trade as a sole proprietor or do you trade through a close corporation or company?) or what to include in your contracts of employment.  Sure lawyers can be pretty effective terriers if you need them to be but they can also be valuable partners as you grow your business and an effective support structure.

It is in the spirit of this idea of lawyers as partners and a support structure that I thought I’d point out that I even do the dishes (actually, I don’t actually do the dishes - we have a dishwasher which I am thankful for each day).  If you need to have an agreement checked out or drafted, let me know.  If you prefer to approach your usual attorney, that is fine too, just try thinking about your attorney as part of your team.  Attorneys can contribute a tremendous amount to the wellbeing of your business and perhaps even to your bottom line!

Technorati Tags: attorneys, contracts, lawyers, partners, contract review, support structure

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I have been contemplating my rapidly deteriorating fitness levels (well, fitness in relative terms) and renewed my decision to get back to gym and exercise more than a couple times a month.  Eric Allam of 52 Reviews believes that working out is very important for entrepreneurs (well, anyone actually) and sets out his reasons in his post titled "5 Reasons Why Every Entrepreneur Should Workout".  The reason that stands out for me is this one:

Health: You can’t run a company if your health isn’t in order. Working out lowers your bad cholesterol, increases good cholesterol, burns dangerous fat, increases your metabolism, lowers your chances of adult diabetes, and a zillion other positive health effects. Really, if you want to die young, don’t work out, I’m sure your employees/family won’t mind when your company/family goes broke.

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52 Reviews is a blog I came across while browsing the Problogger Job Board.  At first I thought this blog was just a web/blog development site and I was pleasantly surprised to see that there are some pretty interesting posts in this blog that professes to contain "resources for risk-takers".

The one post caught my attention as I was scrolling down the page and it is titled "Accidental vs. Habitual Entrepreneurs" and describes what each type of entrepreneur is and some of the differences between them:

Accidental: This person will do something he/she enjoys doing, with no ambition to start a company. This activity they enjoy doing becomes popular and they are presented with a way to monetize, and end up doing it full time. …

Habitual: This person’s sole goal is to own a business. Sometimes they don’t even care for what the business does, as long as its a good company and they care for the business goals. They will start many businesses, have most of them fail, but never give up. …

To read more, read the post.  I found it to be an interesting post and look forward to catching up on some of the older posts as well as reading new content.

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