Free Access to Law, Open Justice and the Right to Privacy

“FREE ACCESS TO LAW, OPEN JUSTICE AND THE RIGHT TO PRIVACY”
BY TERERAI R. MAFUKIDZE, CO-ORDINATOR OF THE SOUTHERN AFRICAN JUDGES COMMISSION
A paper presented at the Law Society of Zimbabwe Summer School held at Troutbeck Inn, Nyanga, Zimbabwe from the 8th to the 11 November 2007



















It was once so desperate for the Court of Appeal of England and Wales to distribute a judgment that clarified a point of procedure that had caused a lot of confusion countrywide that it opened its 1997 judgment with this wish;

“The text of this judgment is to be made available immediately on the Internet. If this country was in the same happy position as Australia, where the administration of the law is benefiting from the pioneering enterprise of Australian Legal Information Institute (AUSTLII), we would have been able to make this judgment immediately available in electronic form to every judge and practitioner in the country without the burdensome costs that distribution of hard copies would necessarily impose ...." [1]

I must hasten to add that within the next four years, BAILII[2] (British and Irish Legal Information Institute) was formed to publish judgments freely on the Internet. Just two weeks ago, the Irish and British approached the family of LIIs at the Montreal conference[3] to request that the Irish form their own LII. The request was immediately granted. We were all blissfully surprised that the Irish and British had managed to co-operate for these 7 long years.
It should be a matter of great concern to all lawyers, judges, magistrates and legislators that the assumption that the law is known to all citizens continues to be made without the corresponding responsibility to truly make the law available to the citizenry. It is a matter of convenience if not outright fraud to work on the presumption that the knowledge of the law is universal when we are all too aware knowledge of the law cannot be presumed even amongst a gathering of lawyers.
I do not believe that there are souls, let alone amongst you my learned friends who would have the courage to open the centuries old volume of Grotius during a consultation, and let alone argument in court. We have assumed that the common law from these sources has gracefully found its way out of the big books or corpus iuiris to reside in our case law and textbooks. For most problems of the common law, we rely mostly on decided cases of days of yonder. We have with some worrying comfort conspired that most or all principles have been litigated upon.
The need to consistently keep a reliable record of the decisions of our courts in beyond argument. For any practitioner in a common law jurisdiction, precedent is the source of law and no doubt the foundation of serious legal research.

Stare decisis or Precedent
The stare decisis [4]doctrine means that a decision previously made by a court on a point forms precedence for guidance to that court and binds lower courts. In practice, a judgment of one judge of the High Court would not bind another judge at the same level. However, a decision of 2 judges would bind a judge sitting alone. At the same time, a decision of the higher court would bind judges in courts below.
The rationale of this practice is that this preserves the certainty, stability and symmetry of a country's jurisprudence. Students of jurisprudence have over the years grappled with whether or not this practice improves justice or unduly handicaps it. Some courts take the more strict view that they bound by their own decisions while others feel free in exceptional cases to depart from precedent.
We are all aware of the 1981 Practice Direction issued by Fieldsend CJ[5] on precedent in these words;
“With the promulgation of the Supreme Court Act, 1981 (No. 28 of 1981), it is right that the Supreme Court should make known its practice in relation to the binding effect of its own Judgments and those of its predecessors, particularly in the light of section 24 of that Act. F
The Court considers it of importance that there be a degree of certainty upon which people can rely in the conduct of their affairs. Precedent is an important factor upon which to decide both what the law is and how it is to be applied in particular cases. It also serves as a proper starting point for any development of the law.
Nevertheless, particularly in a changing society, it is essential for the Court to have some flexibility so as not to restrict unduly its power to develop the law in proper cases to meet changing conditions and injustice in particular cases.
For the future this Court, while treating its past decisions and those of its predecessors as normally binding, will depart from a previous decision when it appears right to do so, applying the principles generally accepted under our law.”
Couched in polite terms, this Practice direction announced a shift in jurisprudence at Independence. Will a similar one be necessary in our jurisdiction in future?

The practice of the law is enriched and made easier through access to precedents particularly in adversarial systems. In the current set up, most of the poor countries in Southern and East Africa lack resources. I will not bore you with the specific horrendous indigence of our own country. Many of these countries have no recognisable law reporting structures. They rely on commercial publishers, who on commercial grounds only publish a selection of cases and at frequencies that justify commercial interests. The cost in countries where there is low consumption is high, running into thousands of dollars per year, a big cost on the many small practices in these countries. (My reference to dollars in this context is to a currency that bears the words, “in God we trust” and no other! Certainly not the one that promises to pay the bearer on demand!”)
The circumstances of the Zimbabwe Law Reports are well known. We have not published law reports from the latter part of 2002 to date.[6] When these are going to be published, in God we trust. It is important that judgments of the courts which form a big part of what is the law be easily accessible to the public. We lawyers are no less culpable in the state of affairs. How many non-lawyers read law reports? We are like bricklayers without trowels. I recall the sad episode involving the Law Society's[7] proposal to buy a new retro-graphic machine for the High Court. The initiative died because lawyers could not agree on ownership of the machine once it was bought from funds donated by members of the Law Society.
It is a time honoured duty of every lawyer to prepare for any case that he is dealing with. This is one of the best ways in which you can keep up with the competition. Access to precedents and the law in broad terms becomes crucial. The availability of the most recent case law would affect your litigation, negotiations, drafting, preparation, legal advice etc. A decision on tax law can make a huge difference on tax liability thereby saving your clients a huge fortune.
Ultimately, access to law affects the cost of your services and the allocation of energy and time. The lawyer with the least refined research methods will charge more for their research.
Southern African Judges Commission (SAJC)[8]
The SAJC is a commission formed by 15 Chief Justices from the Southern and Eastern African regions. (The member countries are Angola, Mozambique, Malawi, Zambia, Namibia, Botswana, Lesotho, Swaziland, South Africa, Zimbabwe, Seychelles, Mauritius, Kenya, Uganda and Tanzania).The main objective of the Commission is to promote the rule of law, democracy, judicial independence and human rights. The Commission has also made one of its objectives, the publication of the decisions of the superior courts in each jurisdiction on the Internet.
Southern African Legal Information Institute (SAFLII) Southern African Legal Information Institute (SAFLII)[9]
The work of the Southern African Legal Information Institute (SAFLII) and its effort to provide free on line judgments of the superior courts from 15 countries will be spoken about by my colleague Kerry Anderson. SAFLII belongs to the growing family of Free Access to Law Movement of LIIs like BAILII, Austlii, and CanLii etc.
The LIIs subscribe to the Montreal declaration on Free Access to Law which provides among other things that;
l Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law;
l Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge;
l Organisations such as legal information institutes have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be be published by other parties;

*public legal information includes sources of law such as legislation, case law and treaties, as well as various secondary (interpretive) public source, such as reports on preparatory work and law reform, and resulting from boards of inquiry. It includes legal documents created as a result of public funding.*

The LIIs publish via the Internet, provide free and anonymous public access to that information. They do not impede others from obtaining public legal information from its sources or publishing it.

To date thousands of judgments from at least 10 countries have been published freely on www.saflii.org. The collection process is underway with the most recent judgments being collected and posted as soon as they are received. Judgments are being collected from the superior courts including special courts. At the same time, SAFLII is collecting older cases for publication.
SAFLII does not in publication make any distinction between what is “Reportable” and “Non-Reportable”. It publishes all judgments from the selected countries' superior courts. With the advantage of the unlimited space that information technology provides, it has become unnecessary to follow the strict distinction and culling of judgments done by court reporters or by commercial publishers. Over time, many courts appear to have forgotten that this classification was done out of practicality rather than any distinction in terms of legal merit. The position taken by SAFLII is that every judicial decision is law even if it does not state any new legal principle. Obviously, every decision applies some principle of law to a particular set of facts and in so doing becomes the law on that particular issue.

While SAFLII provides citations of hard-copy publications, it will not characterise any decision as unreported simply because it has not been published in hard copy. Ultimately, there should be no distinction made between decisions published in print and online.


Free access ensures that;
l transparency of the courts is promoted through public scrutiny;
l courts help in defeating ignorance of the law;
l access to judicial precedents forms pillars for consistency and competence
l legal research and education are improved
l the production of judgments is streamlined and made efficient;
l legal costs are drastically reduced. Lawyers do not spend as many hours prodding from one law report to the next. Information is processed by efficient electronic searching tools and is easily available;
l the cost of storage and retrieval of information and judgments within a court system is reduced;
l quality of justice will improve due to improved access to information by judges, lawyers and researchers;
l the playing field in an adversarial system between litigants is more leveled as there is more or less equal access to information. We all know the barren nature of libraries owned by small law firms. The size of the firm is usually directly proportional to the size of the library;
l improve lobby for legislation;
l improve the quality and effectiveness of regional courts;
l ultimately, the benefit of an open, transparent and credible justice system does wonders for foreign direct investment, cross border practices, etc;

However, there are numerous obstacles to publishing court decisions on the Internet.
Some of these are;
Funding-the governments always accept the responsibility to fund and support the publication of statutes but appear hugely reluctant to plough funds into the publication of judgments. This is a state responsibility that is shunned. The state of law reporting in the 15 countries I have referred to bears overwhelming testimony. As a result, donor-funding supported the launch and continued existence of SAFLII. The excellent state of Kenyalaw[10] bears testimony to the good that can come out if the state assumes its responsibilities.

Access to legacy material-in many of the countries covered, judgments from the previous years are not stored in any formal electronic database or central archive. The collection work therefore necessarily involves ploughing through dusty and chaotic libraries with limited means to assist. Scanners have been employed to transform hard-copy material into electronic records that are published on the Internet. Some of the judgments were typed on flimsy paper which is difficult to scan.

We have however began to ask ourself questions. How far back should we go in collecting judgments of yester year? This is the debate about quality and quantity. Setlogelo v Setlogelo may be the locus classicus for interdicts, but do we not have cases that are recent that deal with the legal requirements in similar terms if not better? As we speak, the British have developed rules that actually limit the number of cases you can refer to in your heads of argument. The Internet provides so much that you could by a click of a button get all the summary judgment decisions of the SA high courts. But do we need to refer to all of them in our heads of argument?
Regrettably, in our part of the world, we are also archives of legal material and not simply law reporters.

Lack of Internet connectivity
I recall the debate I and Unity had with Deborah Baron the Director of the LRF. In her view, it was better to concentrate first on hard copies before the Internet since the clientele had no access to Internet. In the end we won her over on mainly the basis that the Internet was cheaper and could publish quicker than the press machine.

there is a region-wide lack of broadband

limited communications infrastructure

lack of funds for proprietary solutions and software. Some of you run pirated Microsoft software innocently. The cost of licences is prohibitive.

lack of local technology skills

Lack of Court IT infrastructure-courts in the Southern and Eastern African Region are generally poorly funded. They do not have computers, printers, servers, Internet equipment, email etc. Judges are generally thin on IT skills and display a not-so-keen inclination to learn. The libraries are poorly resourced. As a result, the judgment preparation is not lacks the necessary tools to make judgments suit the Internet requirements. SAFLII is currently working on judgment preparation modules which will make the preparation easier, easy to publish, standard compliant if not uniform, easily searchable and have advanced functionality for enhanced legal research across jurisdictions.

We have a dire situation in which the Judiciary is treated as a Department in the Ministry of Justice and not the Third Arm of the State. Financial independence of the courts is central to the independence of the Judiciary. For so long as the Judiciary cannot allocate its own resources independently it can never be free from Executive control.

Poor IT use in law schools, judicial colleges and by legal practitioners-there is a worryingly slow embracing of IT skills by law schools and lawyers. As a result, the use of the free legal resources is yet to spread across the entire profession. The lawyers in the state offices sit at the bottom of the list with virtually little access to the Internet and well resourced libraries. This disparity in resources continues to hamper the administration of justice. While lawyers in private practice may enjoy the unfair advantage, it is in the long run a self defeating circumstance. It is the lawyers who work for the state who will influence the quality of the legislation we get, the attitude of the state on human rights, the bargains you can negotiate the quality of the international treaties and so forth.

Differences in legal systems-the SAFLII project crosses the divide that legal systems provide. From the Roman-Dutch law influenced South Africa, Swaziland, Namibia, Botswana, Zimbabwe, Lesotho, to the more English law influenced systems like Tanzania, via the Civil law systems in Mozambique and Angola. Language barriers and approach to precedent is a challenge. Civil law is less precedent based.



OPEN JUSTICE AND PRIVACY
Decisions made in private and archived very far off from public scrutiny pose the greatest threat to the rights of citizens to access justice and full protection of the law. It is a well known cliché that justice must not only be done but be seen to be done. Judges who operate in secrecy create the greatest temptation to corruption. Open justice is enhanced by the opportunity for all and sundry to access and comment on judicial decisions.
One of the biggest challenges to online publication of judgments is open justice versus privacy. What details of the parties' or other concerned persons should be published? The line has never been clearly drawn both in statute and in the common law. The Internet by its nature offers a new and broader challenge. It is now possible to collate a person’s profile using details available by simple typing in their names through a search engine. This practice is commonly termed “googling” a person.
There is a serious concern that while the principle of open justice is one of the cornerstones of a transparent and accountable justice system, how open should the system be to a total stranger in a far off land employing the Web as a tool. Where does one strike the balance between the value of an open system in the public interest and the need to protect legitimate privacy rights? As the axiom goes, justice must not only be done, but seen to be done.
THE ZIMBABWE CONSTITUTION

The Constitution of Zimbabwe provides in s 18 (10) and s 18 (11) that trials shall be held in public. The court is given the power to exclude the public where it is permitted by a law;

l where necessary or expedient in circumstances would prejudice the interests of justice, or in interlocutory proceedings, or in the interest of public morality, the welfare of persons under the age of 21[11] or the protection of private lives of persons concerned in the proceedings;
l or by law be empowered or required so to do in the interests of defence, public safety, public order or the economic interests of the state.

The Statutes
Both the High Court and the Supreme Court Acts in identical terms provide that;

“Except as otherwise provided in the rules of court or in any other law, all proceedings in the Supreme Court shall be carried on in open court and the pleadings and proceedings thereof shall be in the English Language.” s31 Supreme Court Act, [Chapter 7:13]; (see also s49, High Court Act [Chapter 7:06])

Clearly, open justice is a principle well established in our law. The history of open justice is long. I do not wish to transport you in these days of fuel shortages that far back. Let me restrict me to a few sources.

The United States Bill of Rights, Article 14 of the International Covenant on Civil and political Rights and Article 6 of the European Convention of Human Rights recognise this right as a right to “a fair and public hearing by an independent and impartial tribunal established by law”

Jeremy Bentham, put it thus;
“In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spirit to exertion and the surest of all guards against improbity. It keeps the judge, while trying, under trial.”
Bowling (ed) Works of Jeremy Bentham (1843) vol 4 at 316-317.

This passage was cited with approval nearly a hundred years ago in Scott v Scott, 1913 AC 417. This English case involved a woman who had successfully sued for the annulment of her marriage on the grounds of her husband's impotence. She had obtained transcripts of the hearing and circulated them to his father, his sister and a third party. Thereafter the husband sought an order holding her to be in contempt of court on the grounds that she had published information that had been disclosed in a closed hearing. As you can imagine, this annulment proceedings raised inherently private matters at a time when sensitive problems like male impotence were not discussed widely. I do not hazard to opine that much has changed in much of this country.

The House of Lords, quickly rejected the suggestion that litigants should be spared the humiliation, pain or embarrassment of having private matters publicly discussed. Lord Shaw called open justice, “a sound and very sacred part of the constitution of the country and the administration of justice”.

In his paper, “The Principle of Open Justice: A comparative Perspective”, Justice Spigelman AC, Chief Justice of New South Wales, stated;

“The fundamental rule is that judicial proceedings must be conducted in an open court to which the public and the press have access. A court cannot agree to sit in camera, even that is by the consent of the parties. The exceptions to the fundamental rule are few and more strictly defined.”[12]

Many rules of procedure have arisen from this requirement of open and public justice. I will focus on one that has brought the conflict between open justice and privacy. It is the principle that judicial accountability requires that the judge publishes reasons for the decision. The rule requires publication not only to the parties but to the public.

“The importance of ensuring that justice be done openly has not only survived: it has now become ‘one of the hallmarks of a democratic society’ . . . . The open court principle, seen as ‘the very soul of justice’ and the ‘security of securities’, acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law.”[13]
"Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticise, applaud or castigate the conduct of their courts and, ultimately such free and frank debate about judicial proceedings serve more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the more important aspirational attributes prescribed for the judiciary by the Constitution.” [14]
The Court went further, relying on the decision of the US Supreme Court in Richmond Newspapers Inc v Virginia 448 US 555 (1980) at 570–2:
“Ideally, also, robust and informed public debate about judicial affairs promotes peace and stability by convincing those who have been wronged that the legal process is preferable to vengeance; by assuring the meek and humble that might is not right; by satisfying business people that commercial undertakings can be efficiently enforced; and, ultimately, as far as they all are concerned, that there exists a set of just norms and a trustworthy mechanism for their enforcement. In a memorable passage in Richmond Newspapers Inc v Virginia, Burger CJ characterised these objectives thus:
“The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value.
. . .
When a shocking crime occurs, a community reaction of outrage and public protest often follows. . . . Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. . . .

To work effectively, it is important that society's criminal process ''satisfy the appearance of justice'' . . . and the appearance of justice can best be provided by allowing people to observe it.'”

The Canadian view
"It is also worth noting that there is an important educational aspect to an open court process. It provides an opportunity for the members of the community to acquire an understanding of how the courts work and how what goes on there affects them."[15]


The US Supreme Court:
“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case:
‘The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.’[16]


Where is the line drawn?

Van der Westhuizen J (as he then was)
“It is a well-known principle in our law and public life that, proceedings before this court should take place in public. This principle is also recognised and guaranteed in s 34 of the Constitution of the Republic of South Africa Act 108 of 1996. Section C 16 of the Supreme Court Act 59 of 1959 states that a court has the discretion to order the hearing of cases in camera in special cases...The principle and the ideal of a public hearing should not lightly be departed from. The Prinsloos' case is by no means special, as argued by counsel for the applicant. Intimate personal details are often disclosed out in courtrooms in front of members of the public and the media. This is unfortunate for the individuals involved, but their privacy is in such cases outweighed by values such that courts in a E democratic country function with transparency, so that any member of the public can see that justice is being done. It is not uncommon for a nervous, embarrassed and emotionally fragile plaintiff in a divorce court to have to explain under oath in a courtroom filled with a large number of onlookers, how a spouse committed adultery or how alcoholism, F drug abuse, family violence, or even incest wrecked a marriage, and for the victims of violent crime to have to explain in front of the public and the media how the death, rape or mutilation of oneself or a loved one, such as a child, was experienced and how it may have ruined people's lives. In this case aspects of the private lives of the G Prinsloos - and of course the previous litigation - have already been the topic of sensational reporting for a considerable time.” [17]

Statute
The Criminal Procedure and Evidence Act[18] deals with the dilemma in a criminal trial as follows;
It prohibits
l the publication by radio or television or in any document produced by printing or by any other method of multiplication, the name, address, school or place of occupation or other information likely to reveal the identity of any person under the age of 18 who is being or has bee tried in any court on a charge of having committed any offence; Provided, the judge or magistrate may during trial or the Minister after the trial permit in the circumstances of the case where it is just and equitable and in the public interest or in the interests of a particular person;

l the publication of identities of complainants or witnesses in sexual offences; victims of extortion or similar offences;

l publication of identities of juvenile witnesses

The Maintenance Act and the Children's Act also give the judicial officer power to hold a closed hearing, and by extension can protect the publication of certain information arising from such hearings.

To some extent, the current provisions of the law go some way in clarifying exceptions to open and public hearings.

The Peculiar Internet Challenge

The problem that SAFLII faces is that not all the countries it covers have similar legislation. Secondly, the problems in the Internet age go beyond the current statutory directives.

Commendably, the Canadian Judicial Council[19] has produced a Recommended Protocol for the Use of Personal Information in Judgments. The Protocol notes four objectives to be taken into account in determining what information should be included or omitted from reasons for judgments:
l ensuring full compliance with the law;
l fostering an open and accountable judicial system;
l protecting the privacy of justice system participants where appropriate; and
l maintaining the readability of reasons for judgment.

It also deals with what it terms three levels of protection;
“Personal data identifiers: omitting personal data identifiers which by their very nature are fundamental to an individual's right to privacy;

Legal Prohibitions on Publication: omitting information which, if published, could disclose the identity of certain participants in the judicial proceeding in violation of a statutory or common law restriction on publication; and;

Discretionary Protection of Privacy Rights: omitting other personal information to prevent the identification of parties where the circumstances are such that the dissemination of this information over Internet could harm innocent persons or subvert the course of justice.”

These broad guidelines also go into some detail in the protocol about what they constitute. We operate in a wide terrain with different cultures and social sensitivities. The major challenge is that some of the countries do not even have laws that deal with privacy matters in judgments. In many cases, the judges clearly lack training in identifying what may constitute unpublishable private information. Cases involving persons who are HIV positive have caused some controversy, with one judge in Botswana taking the initiative to anonymise the parties while others would have done otherwise due to the absence of common or statutory prohibitions. The debate about the privacy issues relating to the disclosure of the HIV status of persons in a book was a subject of litigation in SA recently. The Constitutional Court of South Africa still had dissenting opinions on the matter. The decision indicates that there is no universality or uniformity on what constitutes unpublishable private information, even in judgments.
Legal practitioners have an important role to play in the protection of privacy. As the lawyers representing the parties, or involved in the trials, it is your duty to ensure that judges remain aware of the privacy issues involved. It is the lawyers again who must ensure that any agreed standards are being enforced.
Due to the disparity in legal enforcement of privacy issues, SAFLII at present takes decisions to exclude certain private information considered unsuitable for publication. Yet SAFLII is not the be all and end all. The ultimate goal is to influence courts to enforce uniform privacy policies in their judgments through the use of Protocols like the Canadian one referred to above. Parliaments will also need to pass laws that effectively deal with these issues.
Many LII sites already exclude search engines from indexing their sites. This is not a permanent solution. For in a way this limits free access to law.

CONCLUSION
In this paper, I have just attempted to show how free online access to judgments can enhance your legal practice, the rule of law, democracy, legal research[20] etc. It is not an endeavour without pitfalls. It is not an endeavour that can survive on its own. It deserves the support of all practitioners and judges and our governments.

In our country today, it is hard to find heroes in public life. I was surprised to stumble upon one from over a hundred years ago. The esteemed warrior Gwaimani. Arrested during the 1895-97 first Chimurenga War for killing a whiteman and his Zulu servants near Gweru. He was brought to trial and admitted everything without any remorse. On being told that he would be hanged by the neck as punishment, Gwaimani loudly informed the authorities that “No white man would hang Gwaimani” He repeated this mantra many times after conviction while in custody awaiting execution. The authorities were shocked to find one morning Gwaimani dead in his cell. He had taken some poisonous herbs brought by one of his visitors. He just could not allow a white man to hang him. Gwaimani was a man of principle. In a small town in this country, a man was brought before the town magistrate to answer charges of assault GBH. The magistrate who recognised the man enquired why he had savagely clobbered a fellow citizen, to which he replied; “Your worship, the man said I had the ugliest wife he had ever seen!” The magistrate shocked retorted, “But you have no wife Mr. Ngulube!” “Yes your Worship I have no wife. I was just fighting the principle of the thing!” Like Gwaimani and Ngulube, if you have not had much illumination from my presentation on open access to law, just fight for the principle of the thing!

Mr Chairman allow me to express to this congress of lawyers my heartfelt condolences for the loss of one of the bravest cadres on the front. Lawrence was a vivacious and colourful character. I had known him since 1995 when he entered law school. He would not escape notice as he was one of the noisiest students in the mini amphi-theatre outside the law library, so fondly called the quorum. I looked forward to meeting Lawrence and collecting the 5 Bohlingers he promised me for asking Justice Kriegler to speak at this Summer School. In our loss, we have gained a great advocate for our cause in another world. We would not ask for a better advocate than Lawrence. As I imagine his place in the other world, I cannot help but remember what Winston Churchill said on his 75th Birthday;

“I am ready to meet my Maker. Whether he is prepared for the ordeal of meeting me is another matter.”

Zorora murugare munun'una. Zvapasi zvinonyenga. Kudenga tozofara!

TR Mafukidze
Mafukidze@concourt.org.za


[1] Per Saville LJ, Bannister v SGB plc and Ors and 19 other appeals [1997] EWCA Civ 1524 (25th April, 1997)
[2] See www.bailii.org
[3] 8th International Conference on Law via Internet, Montreal, Canada, 23-26 October 2007
[4] See generally, Susan W. Brenner, Precedent Inflation, Transaction Publishers, 1992
[5] See Practice Direction 2 of 1981
[6] The Legal Resources Foundation is working hard to ensure that the backlog in cleared.
[7] 2002 circular from the then Law Society of Zimbabwe Secretary, Mr. W Mapombere
[8] www.sajc.org.za, website will be accessible soon.
[9] See www.saflii.org
[10] I urge you to visit www.kenyalaw.org
[11] I have been unable to verify this queer age restriction.
[12] See, www.lawlink.nsw.gov.au/
[13] Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1996] 3 S.C.R. 480 at para 22
[14] S v Mamabolo 2001 (3) SA 409 (CC)
[15] Edmonton Journal v Attorney General for Alberta, Attorney General of Canada and Attorney General of Ontario [1989] 2 SCR 1326, 64 DLR (4th) 577 at para 21.
[16] Richmond Newspapers Inc v Virginia 448 US 555 (1980) at 572
[17] Prinsloo v RCP Media Ltd t/a Rapport, 2003 (4) SA 456 (T) at 462
[18] Criminal Procedure and Evidence Act [Chapter ]
[19] Canadian Judicial Council, Judges’ Technology Advisory Committee, “Use of Personal Information in Judgments and Recommended Protocol”. Approved by the Canadian Judicial Council, March 2005.
[20] See paper by TR Mafukidze,”The Promotion of the Rule of Law in Africa: Open standards and ICTs to support open access to the court system” presented at the International Conference on African Legal Resources: Challenges and Opportunities of Legislative Informatics, March 2007,Abuja, Nigeria