15 Feb: LJ v BH: Notice of Motion

* 15 Feb: NOT YET FILED: Notice of Motion [PDF];  Application for Referral to Mediation [PDF];
EoP Prisoner of Swamp Elections Ecological Overshoot Cold War TRC submission – via Official SA Representatives – to [A] High Contracting Parties of the Geneva Convention relative to Treatment of Prisoner War, via Swiss Federal Council ITO Art 4A, 5 & 128; [B] Director-General of the Technical Secretariat of Chemical Weapons Convention ITO Art VIII, IX & XV; [C] Secretary-General of the United Nations ITO Art 5.1(d) & 9.2 & 121 of Rome Statute of the International Criminal Court [PDF]. Statement of Claim: Request for Info: Accuracy / Error of EoP RH FR Frame of Orientation [PDF]; Request for Info: Accuracy / Error of Ego Literacy Communication Policy [PDF]; Request for Info: Accuracy / Error of EoP Scientific and Cultural Law [PDF]. Affidavit: EoP TRC Info [PDF].
* Tygae: EoP Leg Sub: LJ v Brian HeuvelLJ v IECLJ v SA Political PartiesLJ v Min of JusticeLJ v SANEFLJ v Mikhail PetrakovLJ v Robert McBrideEoP v US SenateEoP v US CongressEoP v EU ParliamentEoP v UNUS v Tim McVeighState v L JohnsonJus Sanguinis Right of ReturnEoP PoW SubVeto Swamp Elections, EoP SCOTUS, EoP v Bret Kavanaugh, EoP v Neil Gorsuch, EoP v Pres Swiss Confed, EoP US DoJ, EoP v OPCW / EoP NWO SCO: EoP NTE GM: EoP NTE GMAEoP NTE GMZA, EoP NTE GMG, EoP NTE GMUK, EoP NTE GMRU | EoP Axis MilNec Evac: EoP Axis: Lotto: EoP v WiP Law, EoP v WiP  Academia, EoP v WiP Media, EoP v WiP Charity, EoP v WiP Psych / EoP v WiP Neg.

DRAFT – 15 Feb 2019: Application for Referral to Mediation

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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CIRCUIT LOCAL DIVISION OF THE WESTERN CAPE HIGH COURT; HELD AT GEORGE, SOUTH AFRICA

 

Case _______________

In the matter between: 

 Lara Johnson  Applicant
 and  
Brian Heuvel  1st Respondent
Michael Masutha  2nd Respondent
Helene Budliger Artieda  3rd Respondent
Lindiwe Sisulu  4th Respondent
Masimba Tafirenyika  5th Respondent
Marcus Cornaro  6th Respondent
Didier Vanderhasselt  7th Respondent
Jessye Lapenn  8th Respondent
Lin Songtian 9th Respondent
Mikhail Petrakov 10th Respondent

NOTICE OF MOTION:

Application for Referral to Negotiation and/or Mediation prior to commencement to litigation; as provided for in terms of Rules Board for Courts of Law Act, 1985 (Act No 107 0f 1985) in terms of Rule 75

Take Notice that Lara Johnstone (“hereinafter called the Applicant”) intends to make an application on a date to be determined by the registrar, for an order in the following terms:

Mediation Agreement Made Order of Court:

[A] If a Respondent accepts applicants Invitation to Negotiation and/or Mediation – privately facilitated mediation mediated in accordance with Court Annexed Mediation[1] Rules[2] and Fees[3] as provided for in terms of Rules Board for Courts of Law Act, 1985 (Act No 107 0f 1985) Amended 18 March 2014, in terms of Rule 75 – and a Mediation Agreement is concluded between Applicant and Respondent, such mediation agreement is to be made an order of court.

 

Alternatively: Orders as per Application for Referral to Mediation:

[B] Orders as requested in the Application for Referral to Mediation: If a Respondent (A) Accepts the Invitation to Negotiation and/or Mediation, partial Negotiation and/or Mediation occurs, but a Mediation Agreement is not concluded between Applicant and Respondent; and the matter is referred back to court for ongoing negotiations via juridical court proceedings arbitration, or (B) Declines the Invitation to Negotiation and/or Mediation.

 

COMMON LAW & LEGISLATIVE DOCTRINE ORDERS:

[A] Leniency of Formal Court Procedure and Plain Language:

[1] Confirming Applicants right to Access to this Court; includes:

[1.1] leniency on formal court procedure of the Court’s Rules of Practice and Procedure; particularly for any applicant or respondent party filing documents as laypersons; the court to focus on sincerity of the applicant and/or respondent and the quality of their evidence; disregarding their lack of knowledge of formal legalese.

[1.2] To be allowed and able to speak in simple plain English; improving communication by enabling clear and understandable exposure of the issues in dispute; thereby assisting the applicant, respondent and court to clear and simple effective sharing of information so as to cooperate on root cause problem solving.

[B] Invocation of Cultural Law and Cultural Psychological Integrity Declaratory Order:

[2] If required: Permission to invoke[4] cultural law[5] in S. 15(3), 30, 31, and 18; to enable the Applicant to honour the duty and responsibility to uphold the principles upon which her Ecology of Peace Radical Honoursty culture is based; and Psychological Integrity in Section 12[6]; the former which may require the application of choice of law rules.

[3] Request for Access to Information:

[3.1] Confirming that Applicant has a right to access to any information held by the state, as well as information held by another person that is required for the exercise or protection of any right.

 

COMMON LAW & LEGISLATIVE DOCTRINE RELIED UPON:

[4] Applicant requests the aforementioned orders in terms of the following common law, civil law and legislation:

[5] Plain Language:

[5.1] In South Africa, several Acts of government regulate the use of plain language in consumer communication: The Short-term Insurance Act, 53 of 1998; The Long-term Insurance Act, 52 of 1998; The Companies Act, 71 of 2008; and The South African National Credit Act, 34 of 2005, regulates that “information to consumers must be in plain and understandable language”. The South African Consumer Protection Act, 68 of 2008, not only regulates the use of plain language, but also define the concept for a South African context: “Right to information in plain and understandable language: (1) The producer of a notice, document or visual representation that is required, in terms of this Act or any other law, to be produced, provided or displayed to a consumer must produce, provide or display that notice, document or visual representation — ..[..].. in plain language ..[..].. (2) For the purposes of this Act, a notice, document or visual representation is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance, and import of the notice, document or visual representation without undue effort. ..[..]..

[5.2] In The Plain Language Movement and Legal Reform in the South African Law of Contract, Esti Louw answers the question: What is Plain Language as follows:

[A] The term ‘plain language’ is not a difficult one to grasp, since it conveys exactly what it stands for and what the plain language movement seeks to implement.

[B] As regards plain language in the legal sphere, one should first look at what traditional legal language looks like and to what extent it differs from the plain language standards that are now trying to make their way into legal language use. This is especially true for its application in the realm of the law of contract, and, in particular, in commercial contracts.

[C] There are many excellent definitions of ‘plain language’. One good definition was given by Cutts. He defines ‘plain English’ as ‘The writing and setting out of essential information in a way that gives a co-operative, motivated person a good chance of understanding the document at first reading, and in the same sense that the writer meant it to be understood.” …. Eagleson agrees with Garner that plain English is clear, straightforward expression… that avoids obscurity, inflated vocabulary and convoluted sentence construction. Writers who write in ‘plain language’ allow their audience to focus on the message instead of being distracted by complicated language. They ensure that their audience understands the message easily.

[D] The above definitions are persuasive, and allow one to propose that ‘plain language’ is simply a way of writing so that the person for whom it is intended can understand it with ease. When a legal document is drafted in clear and understandable language, it improves communication, assists with the more effective sharing of information and generally has the effect that all relevant parties are informed of their respective roles.

[5.3] Giving effect to Applicants right:

[A] Of access to the court by the applicant and any respondent wishing to represent themselves; to be able to speak in simple plain English; improving communication by enabling clear and understandable exposure of the issues in dispute; thereby assisting the applicant, respondent and court to clear and simple effective sharing of information so as to cooperate on root cause problem solving.

[B] To the extent required developing the common and/or civil law, by declaring the conduct lawful and constitutional in the circumstances of this matter; including enhancing the courts credibility as a fair and impartial arbiter of social and resource conflict disputes; for Pro Se Applicants and/or Respondents.

 

[6] Leniency of Formal Court Procedure:

[6.1] “The unrepresented litigant in Alaska receives procedural leniency, …. pleadings are held to a “less stringent standard” than “formal pleadings.” — Duties of the Judicial System to the Pro Se Litigant.

[7] Request for Access to Information:

[7.1] South Africa: The Promotion of Access to Information Act, 2000; Act 2 of 2000; also known as the PAIA.

[7.2] European Union: The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.

 

[8] Invocation of Cultural Law and Habeus Mentem Cultural Psychological Integrity and Assisted Suicide Declaratory Order:

[8.1] International law:

[A] International Covenant on Economic, Social and Cultural Rights[7]

[B] International Covenant on Civil and Political Rights[8]

[8.2] South African Law:

[A] Constitution: S. 12, 15, 30, 31:

[a] S 12: Freedom and security of the person: Everyone has the right to bodily and psychological integrity.

[b] S 15: Everyone has the right to freedom of conscience, religion, thought, belief and opinion. …. This section does not prevent legislation recognising …. systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.

[c] S 30: Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

[d] S 31: Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community – to enjoy their culture, practice their religion and use their language; and to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

[B] Legislation and Legal Rulings:

[a] Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A); at 397 the Appellate Division held that neither common nor customary law was prima facie applicable. Courts had to consider all the circumstances of a case, and, without any preconceived view about the applicability of one or other legal system, select the appropriate law on the basis of its inquiry. Schreiner J.A. said lifestyle of is a choice of law factor: “Aside from an express choice of laws all connecting factors with conflict of personal laws are designed to determine, in an objective manner, the cultural orientation of the parties. Because the laws involved are conceived in terms of culture …. the connecting factors must be conceived in like terms. The most direct access to a person’s cultural leanings would clearly be his or her lifestyle”

[C] Legal Reports:

[a] Paul Meerts: Culture and International Law[9]: “Although not often explicitly mentioned, culture is always at the centre of law and politics.”

[b] SALC, Sept 1999: Report on Conflicts of law: P.22: 1.58. The Constitution now provides an entitlement for invoking customary law in legal suits. Because ss 30 and 31 specifically guarantee an individual and a group’s right to pursue a culture of choice, it could be argued that application of customary law has become a constitutional right. Previously, the state had assumed complete discretion in deciding whether and to what extent customary law should be recognized, an attitude typical of colonial thinking, for Africans were subject to whatever policies the conquering state chose to impose on them. Now, however, the state has a duty to allow people to participate in the culture they choose, implicit in this duty is a responsibility to uphold the institutions on which that culture is based.’

[c] SALC, June 1988: Report on Conflicts of Law 76: The Harmonization of the Common Law and the Indigenous Law states: “Differences in culture are always likely to generate differences in law with consequent conflicts of law … The purpose of choice of law rules is to select the law that will do justice in the case. It is the court’s power (and responsibility) to decide which law to apply, paying due regard to the parties’ interests and their choice of legal system.” It also provides for the following principles governing choice of law disputes: (a) The nature of the conflict: where it is assumed that an individuals personal law is a matter of their cultural affiliation; (b) Parties may select the law to be applied; based upon objective and subjective reasonableness tests; (c) Nature and form of a prior transaction; if parties disagree on each others choice of applicable cultural law; (d) Subject matter and environment of a transaction; if deeper clarification about cultural orientation is required; (e) The litigants’ cultural orientation; which can include the court taking notice of details as diverse as the parties’ place of residence, occupation, religion, education, style of dress, eating and sleeping habits, use of bank accounts, preparation of wills and consultation with attorneys, communication style, etc; (f) Exemption from customary or common law; as justified by the principle that every person should be free to pursue a culture of choice, which implies that people may not be involuntarily bound by a system of personal law; and legal certainty: where an individual can unequivocally declare in advance of any litigation their personal law; (g) Unifying choice of law.

[8.3] Giving effect to Applicants Rights:

[A] To (i) pursue and participate in a culture of their choice; and implicit in this choice is a duty and responsibility to uphold the institutions upon which that culture is based; (ii) bodily and psychological integrity.

[B] To the extent required developing the common and/or civil law, by declaring the cooperative inter-cultural resolving of issues in dispute; conduct lawful and constitutional in the circumstances of this matter.

 

[9] Habeus Mentem Cultural Psychological Integrity:

[9.1] International Law: As of October 2015:

[A] Human euthanasia is legal in the Netherlands, Belgium, Colombia and Luxembourg.

[B] Assisted Suicide is legal in Germany, Japan, Albania and in the US states of Washington, Oregon, Vermont, New Mexico, Montana and California — effective January 1, 2016; for the citizens of those nations.

[C] Assisted suicide is legal in Switzerland; for Swiss citizens; as well as citizens from other countries travelling to Switzerland.

[9.2] South Africa:

[A] The Euthanasia Judgement by Judge Hans Fabricius in North Gauteng High Court reported in SA Law Reports as 2015 (4) SA 50 (GP): Stransham-Ford v Minister of Justice and Correctional Services and Others (GP) (unreported case no 27401/15, 4-5-2015) (Fabricius J)

 

TAKE NOTICE FURTHER that the attached (a) Application for Referral to Negotiation and/or Mediation and enclosures filed herewith will be used in support of this application.

TAKE NOTICE FURTHER that Applicant shall be representing herself and her Ecology of Peace culture/religion, as an effective In Forma Pauperis Pro Se / Propria Persona / Litigant in Person Applicant.

TAKE NOTICE FURTHER that 16 Taaibos Ave, Heatherpark, George, 6539, and/or eop-miled-clerk@tygae.org.za, and/or PO Box 5042, George East, 6539, is appointed as the address / email/ landmail address at which the applicant will accept notice and service of all process in these proceedings.

TAKE NOTICE FURTHER that:

[10] If Respondent accepts Invitation to Negotiation / Mediation:

[10.1] Within two weeks of the respondents service of this Application; by the Sheriff on the Respondent: the respondent must file with the High Court Registrar – Room 207, 2nd floor; George Magistrates building – and the Applicant:

[A] The Respondents Consent to Negotiation and/or Mediation;

[B] If a mediation agreement is concluded between applicant and respondent, such mediation agreement will be made an order of court on a date as agreed upon between applicant, respondent and the registrar.

[11] If a Respondent does NOT Accept the Invitation to Negotiation / Mediation:

[11.1] Within two weeks of the respondents service of this Application; by the Sheriff on the Respondent: the respondent must file with the High Court Registrar – Room 207, 2nd floor; George Magistrates building – and the Applicant:

[A] The Respondents Notice to Decline the Invitation to Negotiation and/or Mediation; which should include an address referred to in rule 55(1)(g) at which respondent and/or respondents attorney on their behalf, will accept notice and service, including email service, of all documents in these proceedings; and within two weeks thereof

[B] The Respondents Notice to Oppose and Affidavit in Support thereof.

[11.2] Within two weeks of the respondents Notice to Oppose, the Applicant will file her Reply Affidavit.

[11.3] Subsequent to such filings, the matter shall be set down for court hearing on a date suitable to applicant, respondent and registrar.

TAKE NOTICE FURTHER that:

If or where a respondent does not reside within the George Municipality city limits and intends to represent themselves Pro Se; they may request and authorize the applicant – per email, which should include a Filing and Printing Authorization Notice – to physically print the documentation and file the documentation for them with the High Court Registrar; and subsequent thereto to provide them – per email – with scanned copy of such filing for their records.

DATED at this _______________________, George, South Africa, Pale Blue Dot.

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[1] http://www.justice.gov.za/mediation/mediation.html          archive.is/6XBxB

[2] http://www.justice.gov.za/legislation/notices/2014/2014-03-18-gg37448_rg10151_gon183-rules-mc.pdf

[3] http://www.justice.gov.za/legislation/notices/2014/20141031-gg38164-gon854-mediation.pdf

[4] Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A) at 397: Appellate Division held that neither common nor customary law was prima facie applicable. Courts had to consider all the circumstances of a case, and, without any preconceived view about the applicability of one or other legal system, select the appropriate law on the basis of its inquiry.

[5] SALC, Sept 1999: Report on Conflicts of law: P.22: ‘1.58. The Constitution now provides an entitlement for invoking customary law in legal suits. Because ss 30 and 31 specifically guarantee an individual and a group’s right to pursue a culture of choice, it could be argued that application of customary law has become a constitutional right. Previously, the state had assumed complete discretion in deciding whether and to what extent customary law should be recognized, an attitude typical of colonial thinking, for Africans were subject to whatever policies the conquering state chose to impose on them. Now, however, the state has a duty to allow people to participate in the culture they choose, implicit in this duty is a responsibility to uphold the institutions on which that culture is based.’

[6] 12. Freedom and security of the person: (2) Everyone has the right to bodily and psychological integrity.

[7] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

[8] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

[9] Paul Meerts. (ed.). Culture and International Law. The Hague: Hague Academic Press/T.M.C. Asser Press Publishers, 2008. Pp. 246.

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