By Katherine (Kate) Mortensen • July 22, 2008•Internships and Clerkships
This week has been quite busy at work, which is a nice change from last week. Tessa has Susan and me working on a few projects that are all interesting and have been very enlightening as to differences between our laws. Additionally, we had a lecture/ discussion this morning that I would also like to highlight as it was very interesting.
Currently I am working on three different matters. One is an eviction issue centering on an act called PIE Act, a medical malpractice issue and a medical negligence claim. Susan and I have been working on the malpractice issue for the last couple of weeks and are currently in the documentation phase. A woman is claiming things happened to her during surgery that are just horrific. When we got the case we were handed two huge binders containing every minute piece of paper that was ever involved in the claim. We are talking intake papers, bills, statements about her corrective vision needs, everything. We ran into a couple basic problems. One, much of information from actual doctors was in Afrikaans, and two, some of the claims she was making were completely unsubstantiated by what was in the file. Nevertheless, Susan and I waded through a
The next matter we have been working on is an eviction matter involving the Prevention of Illegal Occupancy, or PIE Act. The South African Constitution guarantees housing to every individual. PIE protects people who are going to be evicted and gives the tenants a lot more power. I think it was drafted because there are so many squatter settlements and sometimes people get relocated when the actual property owners interfere. I have been having some trouble wading through the act as it does not make sense to me. But that is partly because property rights in America are so focused on ownership and the owner’s rights so the idea of a landlord being helpless to decide what happens to his land is so foreign to us. But I have been able to successfully apply the law to my facts and think my client has a very small chance at success.
It was Susan’s idea, but I have jumped on board. We decided to do an IREAC for Tessa to better organize the information. She had never heard of anything similar, but she was excited at the idea. So that is what I have spent most of my week doing. Soooo much case law, it’s like a flashback to my LRW days. Tessa said that if she finds it particularly useful, she might switch over to something similar. At the very least we got more experience in legal research and writing and at the very best we influenced the way Tessa does business.
The third issue we have been working on involves AIDS, which is the first thing of its type we have seen. There was an issue of a false positive and improper disclosure. We are in the preliminary research phase but so far it is really interesting.
This morning we had a discussion led by a law student who works at the Legal Aid Board about conflicts between indigenous law and constitutional law. It was something that didn’t even occur to me. Their constitution is significantly longer than ours and it includes a right to religious freedom. However, there is a conflict because there are traditional laws that local peoples have followed, known as “indigenous law” that are sometimes impossible to comply with without violating the constitution. The main example she gave us was the patriarchal traditions of land inheritance and weird wife-capturing rules that none of us really understood. These interfere with the concepts of equality amongst genders that are listed in the constitution.
The girl who gave the presentation was in favor of having a dual system of law- people could choose if they wanted to follow constitutional or indigenous law. We all pointed out numerous reasons why we felt that was a bad idea. The hardest part was fighting our own western beliefs and being more sensitive to the idea that this is a question for people who have long-standing traditions. We managed to be respectful and engage in some great discourse and in the end the student told us that we gave her a lot to think about and we definitely left with a lot to think about.