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10-Point Summary of The Gambia v Myanmar Genocide Case

On 11 November 2019, the Republic of The Gambia filed in the Registry of the International Court of Justice, an Application instituting proceedings against the Republic of the Union of Myanmar concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide

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  • On 11 November 2019, the Republic of The Gambia filed in the Registry of the International Court of Justice, an Application instituting proceedings against the Republic of the Union of Myanmar concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide.
  • Abubacarr Marie Tambadou, Payam Akhavan, Andrew Loewenstein, Tafadzwa Pasipanodya, Arsalan Suleman, Pierre d’Argent, Paul Reichler and Philippe Sands led oral arguments on behalf of The Gambia.
  • Aung San Suu Kyi, William Schabas, Christopher Staker and Phoebe Okowa led oral observations on behalf of Myanmar
Aung San Suu Kyi
  • Aung San Suu Kyi is the current and first State Counsellor of Myanmar. She is a Nobel Peace Prize laureate and as the leader of the National League for Democracy, played a vital role in the state’s transition from military junta to partial democracy. However, the ongoing Rohingya Genocide has severely tainted Aung San Suu Kyi’s heroic past.
  • The ICJ Bench consisted of President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judges Ad Hoc Pillay, Kress; And Registrar Gautier.
Rohingya Refugees
  • In the ICJ case, among other request, The Gambia asked the court to order Myanmar to take all measures within its power to prevent all acts that amount to or contribute to the crime of genocide, including taking all measures within its power to prevent the following acts from being committed against any member of the Rohingya group: extrajudicial killings or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part.
  • The “Rohingya” people in the case were understood as a group that self-identifies as the Rohingya group and that claims a longstanding connection to Rakhine State, which forms part of the Union of Myanmar.
  • The court ruled that bearing in mind Myanmar’s duty to comply with its obligations under the Genocide Convention, Myanmar must, per its obligations under the Convention, concerning the members of the Rohingya group in its territory, take all measures within its power to prevent the killing of members of the Rohingya group, the causing of serious bodily or mental harm to the members of the group, the deliberate infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part and imposing measures intended to prevent births within the group.
  • Myanmar must also, concerning the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organisations and persons which may be subject to its control, direction or influence, do not commit acts of genocide, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide.
  • The Court also unanimously ruled that the Republic of the Union of Myanmar should take adequate measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide. Furthermore, The Republic of the Union of Myanmar should submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and after that every six months, until a final decision on the case is rendered by the Court.
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Be careful what you promise on WhatsApp (Full Court Judgment)

The appellant testified that the only reason he had sent the message was to get rid of the respondent[3] and that he had no intention to make an offer to contract.

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whatsapp and hammer
This is a summary of the Kgopana v Matlala case. Click here for full judgement on SAFLII

During July 2015, the appellant, Mr Ntsieni Morris Kgopana, enjoyed a handsome windfall. He won a prize in the National Lottery[1] that amounted to R20 814 582,20. This amount was paid into his bank account on 29 July 2015. Some six months later, the appellant sent the following WhatsApp message (the message) to the respondent, Ms Mohlaki Rosina Matlala, who is the mother of one of his seven children:

‘if I get 20m I can give all my children 1 m and remain with 13m .I will just stay at home and not driving up and down looking for tenders’

[2]        The issue in the appeal is whether the message constituted an offer animo contrahendi, that is, an offer which upon acceptance could give rise to an enforceable contract. After proceeding to trial, the court a quo (Makgoba JP in the Limpopo Division of the High Court, Polokwane) held that it did. He accordingly gave judgment for the respondent but granted leave to the appellant to appeal to this court.

[3]        The romantic relationship between the parties came to an end during March or April 2003. On 21 August 2003, however, a child was born to the respondent of whom the appellant was the father. It can be accepted that over the years the appellant had little or no contact with the child. He did, however, pay maintenance for the child in the amount of R1 000 per month, in terms of a consent order granted by the Mokopane maintenance court under case number 121/2003.

[4]        The appellant was employed by the South African Revenue Service. Shortly after he received his bonanza, he made contact with the respondent. He conveyed to her that his health had deteriorated and that he could no longer be employed. He said that he expected that the pension benefits payable upon the termination of his employment would amount to approximately R600 000. He proposed to pay an amount of R100 000 to the respondent from this source of funds, in full and final settlement of his duty to maintain the minor child.

[5]        The respondent was agreeable to the proposal. In order to give effect to their arrangement, the parties arranged a meeting with the maintenance officer at the maintenance court. At this meeting the respondent said she had heard that the appellant had won R20 million in the Lotto. The appellant denied this and said that he had only received payment of his pension benefits. The maintenance officer indicated, quite correctly, that the parties could not finally determine the rights of the minor child to receive maintenance from his father. The meeting ended on this note. Nevertheless the appellant paid the amount of R100 000 to the respondent for the benefit of the minor child on 5 January 2016 and did not thereafter make any further payments in terms of the maintenance order.

[6]        On 20 January 2016 the respondent again visited the maintenance officer. According to the respondent, he told her that the appellant had indeed won approximately R20,8 million and exhibited bank statements of the appellant that reflected the payment.[2] This caused the respondent to send a WhatsApp message to the appellant in which she said that she now knew that he had won R20 million.              On 21 January 2016 the appellant responded with the message I have mentioned at the outset.

[7]        About seven months later, on 7 September 2016, the respondent issued summons against the appellant. Relying on the message, she claimed payment of R900 000, that is, R1 million less the amount of R100 000 that had been paid on               5 January 2016. Her particulars of claim could not be described as a model of clarity. The appellant accepted, however, that it encapsulated the case that the respondent advanced at the trial. This was that an agreement, in terms of which the appellant was obliged to pay the amount of R1 million to her for the benefit of the minor child, had been concluded when she accepted an offer contained in the message. The particulars of claim did not state when and how the offer was accepted. In response to a leading question, the respondent said in evidence that she had accepted the offer by issuing the summons.

[8]        In his plea, the appellant denied that he had won the prize in the National Lottery and denied that he had sent the message. However, he formally admitted these facts shortly before the commencement of the trial. It should be mentioned that the appellant specifically pleaded in the alternative that he had no animus contrahendi. The appellant testified that the only reason he had sent the message was to get rid of the respondent[3] and that he had no intention to make an offer to contract.

[9]        The trial court concluded that the content of the message was clear and unequivocal and contained an offer that was ‘certain and definite in its terms’. It held that an offer had been made ‘with the necessary animus contrahendi’ and that the respondent had ‘readily accepted the offer’. The court a quo also held that the appellant was contractually liable in accordance with the message, even if he might not have intended to make an offer to contract. This was so, it reasoned with reference to cases such as Spes Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd[4] and Steyn v LSA SA Motors Ltd[5], because the respondent reasonably regarded the message as an offer that was open to acceptance. For the reasons that follow, I am unable to agree with any of these findings.

[10]      The primary basis of contractual liability in our law is true agreement or consensus ad idem, in accordance with the will theory. In cases of dissensus contractual liability may nevertheless be founded on the doctrine of quasi-mutual assent, which is based on the reliance theory. In these cases the first party is contractually bound because he or she led the second party, as a reasonable person, to believe that the first party intended to contract on particular terms.[6]

[11]      Importantly, true agreement or consensus can generally only be determined by an examination of the external manifestations of the intention of the respective parties. As it is put in Christie’s Law of Contract of South Africa[7] at 31:

‘In the result, it is correct to say that in order to decide whether a contract exists one looks first for the true agreement of two or more parties, and because such agreement can only be revealed by external manifestations one’s approach must of necessity be generally objective.’

The author also aptly explains the application of these principles to the concept of animus contrahendi in these terms:

‘In this context, the phrase “lack of animus contrahendi” is appropriate to describe those cases in which, from the circumstances or manner in which the “offer” was made, or both, it is clear to the court and was, or ought to have been, clear to the offeree that the offer was not intended to be taken seriously.’[8]

[12]      It follows that the question in this case is whether in the context thereof, the message conveyed an offer animo contrahendi. The admissible context was that the appellant consistently denied having won a prize in the National Lottery. The message was sent in response to a statement that she knew that he had won the prize.                      It therefore constituted a denial that he had done so. The context thus strongly suggested that the appellant never intended to agree to part with a portion of his winnings. And in its terms, the message related what the appellant could possibly do in the hypothetical future event of him receiving R20 million. It set out what the appellant might do if he received R20 million. In respect of the manifestation of the intention of the respondent it is significant that she never responded to the message, and did not immediately claim payment.

[13]      In my view the message clearly did not contain an offer that could on acceptance thereof be converted into an enforceable agreement. Therefore this is also not a case where the offeror’s true intention differed from his expressed intention. The appellant subjectively had no intention to contract and the message did not suggest otherwise. Thus there was no room for the application of the doctrine of quasi-mutual assent.

[14]      It follows that the court a quo should have dismissed the respondent’s claim and the appeal should succeed. In the result this court must determine the incidence of costs in the court a quo and in this court. The facts show that the morally reprehensible conduct of the appellant contributed to the institution of the action in the interests of the minor child. And it was not unreasonable of the respondent to defend the judgment in favour of the minor child on appeal. A costs order against the respondent would be detrimental to the best interests of the child. In the exercise of this court’s discretion in respect of costs in the particular circumstances of this case, I consider it fair and just to make no order as to costs in the court a quo and in this court.

[15]      The following order is issued:

1  The appeal is upheld.

2  The order of the court a quo is set aside and replaced with the following:

‘The plaintiff’s claim is dismissed. There is no order as to costs.’

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Free e-book download! Climate Change Law in Zimbabwe: Concepts and Insights (PDF)

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By AfricaLegalNews Book & Film Club

The AfricaLegalNews Book & Film Club is happy to announce the book project ‘Climate Change Law in Zimbabwe: Concepts and Insights’. Hard copies will be available after the official launch in January. It is a great effort by academics from across Zimbabwean and South African institutions. Something to read as we grasp with climate change. You can download the free ebook version, courtesy of the Konrad Adenauer Stiftung. Click here to download

(The AfricaLegalNews Book & Film Club gladly reviews law-related books and films. To get a free review, please email africalegalnews@gmail.com for directions on posting TWO FREE COPIES of the book or film to the team)

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