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SDG 16

The South African Military and Peace Support Operations: Responding to the Challenges and Preparing for Engagement
15 August 2012
Stellenbosch University

Neethling, T. G.

Suid-Afrika het in die afgelope tyd om meer as een rede toenemend by politiekdiplomatieke vredesinisiatiewe betrokke geraak. Op die militêre terrein is die Suid- Afrikaanse Nasionale Weermag (SANW) eweneens besig met voorbereidings om op multilaterale grondslag aan toekomstige vredesondersteunde operasies deel te neem. Met die oog op sodanige deelname is die SANW tans besig om in samewerking met buitelandse weermagte aandag te skenk aan 'n grondslag vir gesamentlike optrede. Selfs meer betekenisvol is Suid-Afrika se ontwikkelende politieke en diplomatieke status in Suider-Afrika en die koordinering van inisiatiewe om 'n gemeenskaplike veiligheidsbenadering op die sub-kontinent te bevorder. In die opsig speel die land 'n belangrike rol in pogings om 'n nuwe veiligheids- en verdedigingsprofiel in Suider-Afrika te laat vorm aanneem. In die lig van toenemende verwagtinge wat met betrekking tot vredesinisiatiewe aan Suid-Afrika gestel word, asook in die konteks van die uitdagings enrisikos wat vredesondersteunde operasies inhou, spreek dit vanself dat enige toekomstige deelname daaraan met omsigtigheid oorweeg moet word. Verskeie politieke en operasionele oorwegings moet in die verband in aanmerking geneem word. Wat dit betref, is die Departement van Verdediging skynbaar deeglik onder die indruk van die politieke en militêre dinamiek van vredesondersteunende operasies, asook die onervarendheid van die SANW in die opsig. Gevolglik is bepaalde parameters, riglyne en selfs voorwaardes vir deelname aan sodanige operasies uitgestippel. As sodanig is daar klaarblyklik 'n besef dat die land op 'n verantwoordelike wyse en langs die weg van 'n bepaalde proses daarby betrokke behoort te raak.
Comments on the constitutional protection of religion in Swaziland
20 August 2009
North West University

Rautenbach, Christa

Comparable to the South African legal system, the Swazi legal system has the characteristics of a dual legal system. Though the common law of Swaziland is Roman-Dutch law, Swazi customary law has a firm hold in the Swazi legal system. With a population in the region of 1,2 million, made up of different religious denominations, religion in Swaziland is an important matter. Although Christianity is the majority religion in Swaziland, there has generally been freedom of religion from an early stage. This was recently confirmed in the Constitution of the Kingdom of Swaziland Act 1 of 2005, which came into operation on 8 February 2006. The focus of this presentation is on the fairly new constitutional provisions dealing with freedom of religion in Swaziland. The first part of this contribution consists of a general discussion dealing with the commonalities of and interaction between the South African and Swazi legal systems, as well as certain key elements in the making of the Swazi Constitution. The second part deals with specific constitutional provisions pertaining to religion in general and freedom of religion in particular. The contribution concludes with a few comments on the role the South African constitutional jurisprudence has to play in future Swazi constitutional adjudication.
The national prosecuting authority's policy and directives relating to post-truth and reconciliation commission prosecutions
28 August 2009
North West University

Ferreira, Gerrit M.;Lubbe, Hendrik J.

The National Prosecuting Authority’s policy and directives relating to post- Truth and Reconciliation Commission prosecutions have been the topic of much recent debate. The process, followed by the amendment of the Prosecution Policy and the consequent formulation of the policy and directives, neither made provision for public participation nor for the input of victims. Furthermore, standard arrangements in the normal execution of justice and the prosecuting mandate in terms of empowering legislation were incorporated into the policy and directives which includes plea and sentence agreements in terms of s 105A of the Criminal Procedure Act 51 of 1977. This section was employed to successfully secure conviction of five accused in the Vlok case. This case was one of the first prosecutions in terms of the policy and directives since the Truth and Reconciliation Commission has completed its work. Due to the specific nature and application of the policy and directives as well as s 105A, stronger emphasis is placed on victim participation by affording those ultimately affected by its application the opportunity to participate.
A return to the manifest justice principle: a critical examination of the "reasonable suspicion/apprehension of bias" and "real possibility of bias" tests for judicial bias in South Africa and England
08 October 2009
North West University

Nwauche, E S

The impartiality of judges often expressed in the Latin maxim nemo iudex in propria causa interpreted to mean that no man should be a judge in his own cause together with the right of fair hearing make up the right to natural justice. This principle is recognized by a number of provisions of the Constitution of the Republic of South Africa, 1996. Section 165 (4) provides that the organs of state shall through legislative and other measures assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. Furthermore, section 34 of the same Constitution provides that everyone has the right to have any dispute resolved by the application of law by a court or, where appropriate another independent and impartial tribunal or forum. Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms 1950 as incorporated in the Human Rights Act 1988, applicable in England since 2000 provides that: "In the determination of his civil rights and obligations … everyone is entitled to a fair hearing … by an independent and impartial tribunal established by law." The independence of courts and impartiality of judges are closely related in that they operate to sustain public confidence in the administration of justice. This article advocates a return to the use of the manifest justice principle enshrined as the proper context for the application of the tests of "reasonable apprehension of bias" adopted by South African courts and "real possibility of bias" adopted by English courts in the consideration of allegation of apparent bias. This paper argues that the tests are different and that while the English test is a move of English courts from the real danger/likelihood test in consonance with an overwhelming global jurisprudence the South African test is a move away from this global jurisprudence and arguably back to the real danger/likelihood test. This paper also argues that the reasonable apprehension test as applied by the minority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing) is a more acceptable interpretation of the reasonable apprehension test than the test laid down in President of the Republic of South Africa v South Africa Rugby Football Union (2) and its interpretation by the majority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing). More importantly there is an examination of cases where the tests have been applied which hopefully shows that there are considerable problems and inconsistency in their application and argue that the manifest justice principle provides the proper context for the tests to be properly applied.
Ontwikkeling van die gemenereg in die lig van artikel 39(2) en 173 van die Grondwet
08 October 2009
North West University

Harms, L T C

The point of departure in the Constitution is that the existing legal order should largely be kept intact, despite the fact that this is disliked by some. The common (or non-statutory) law has also retained its position, subject however to the superior courts' inherent power, or rather their obligation in terms of section 173 of the Constitution, to develop the common law taking into account the interests of justice. The courts have for a long time had the task of developing the common law with reference to especially the boni mores, moral standards and the common notion of what is right and fair. The Bill of Rights now is a source and summation of such notion. At times there had been an exaggerated call for petere fontes. The Courts however still have the competence to adapt the law to serve commercial and other needs, even without reference to the Bill of Rights. The underlying principles of the common law are largely, though not in all respects, consistent with the Bill of Rights. There is an essential distinction between the development of a rule of the common law in accordance with constitutional norms, and the invalidation of a rule which is inconsistent with the Constitution. Courts tend not to make this distinction and this leads to inconsistencies. Some believe that the common law is perfect and unaffected by the Bill of Rights. Others consider the Bill of Rights to have granted the judiciary a hunting license on the common law, making the positive law a matter of judicial discretion and allowing the courts to infringe upon the domain of the legislature and to ignore precedents. The common law consists of a miriad rules developed over many centuries involving great minds. It represents a fine web, the disturbance of which at one point may have severe unexpected consequences elsewhere. The new era makes extraordinary demands on judicial officers. The ubiquitous Constitution sets the boundaries – boundaries neither of barbed wire, nor made of rubber. Free judicial discretion is not a value of the Constitution, nor is legal uncertainty. The Constitution illuminates the legal landscape, but it is not blinding; it does not provide a trench from which the common law may be attacked, but it entrenches rights. Sections 39(2) and 173 of the Constitution do not place a machete in the hands of the judge to decapitate or to castrate, but it provides modeling clay out of which art must be created capable of withstanding the heat of the oven.
Optimal auditing in the banking industry
15 December 2009
North West University

Bosch, T.;Mukuddem-Petersen, J.;Petersen, M.A.;Schoeman, I.

As a result of the new regulatory prescripts for banks, known as the Basel II Capital Accord, there has been a heightened interest in the auditing process. Our paper considers this issue with a particular emphasis on the auditing of reserves, assets and capital in both a random and non-random framework. The analysis relies on the stochastic dynamic modeling of banking items such as loans, reserves, Treasuries, outstanding debts, bank capital and government subsidies. In this regard, one of the main novelties of our contribution is the establishment of optimal bank reserves and a rate of depository consumption that is of importance during an (random) audit of the reserve requirements. Here the specific choice of a power utility function is made in order to obtain an analytic solution in a Lévy process setting. Furthermore, we provide explicit formulas for the shareholder default and regulator closure rules, for the case of a Poisson-distributed random audit. A property of these rules is that they define the standard for minimum capital adequacy in an implicit way. In addition, we solve an optimal auditing time problem for the Basel II capital adequacy requirement by making use of Lévy process-based models. This result provides information about the optimal timing of an internal audit when the ambient value of the capital adequacy ratio is taken into account and the bank is able to choose the time at which the audit takes place. Finally, we discuss some of the economic issues arising from the analysis of the stochastic dynamic models of banking items and the optimization procedure related to the auditing process
The interpretation of section 231 of the South African Constitution: a lost ball in the high weeds!
21 December 2009
North West University

Ferreira, Gerrit M.;Scholtz, Werner

A critical discussion of Quagliani v President of the Republic of South Africa case 959/04 (TPD) (unreported); Van Rooyen / Brown v President of the Republic of South Africa case 28214/06 (TPD) (unreported) decided on 6 March 2008, and Goodwin v Director-General Department of Justice and Constitutional Development case 21142/08 (TPD) (unreported) decided on 23 June 2008.
Good governance in the hands of the judiciary: lessons from the European example
29 March 2011
North West University

Von Danwitz, Thomas

This note is based on the author’s guest presentation delivered at the Konrad- Adenauer Foundation/North-West University (Faculty of Law) Colloquium on 21 August 2009. Justice von Danwitz was invited to set the scene for further academic discourse on the broad topic of Good Governance and Sustainable Development. This contribution hence draws on the author’s personal views and experience in the European context, and it is shown that the quest for good governance is universal and not specific to our times and that in fact, “(t)he true administration of justice is the firmest pillar of good government”. The contribution considers what Europe has been able to realize in this field over the past 10 years by means of a description of the legal concepts and practical consequences of the quest for good governance in the European Union and some comments on the role of the judiciary in this process. The contribution serves to show that good government is a notion of which the meaning transcends geographical and jurisdictional borders and that it is possible for different countries and regions to exchange lessons and learning experiences in relation to good government in operation as well as the role of good government towards the achievement of sustainable development.
A brief overview of the Civil Union Act
30 March 2011
North West University

Ntlama, Nomthandazo

The adoption of the Constitution of the Republic of South Africa, 1996 (the Constitution) has provided a sound framework for the elimination of discrimination and prejudice against all members of our society. The Constitution provides for equal recognition of the right to freedom of religion and sexual orientation within the framework of the right to equality. This note aims to provide a brief overview and analysis of the general and potentially problematic features of the Civil Union Act 17 of 2006 (the Act) in the context of equality, generally and within realm of the constitutional protection afforded to everyone in South Africa. This contribution is limited to an examination of the quality of the legal protection accorded to same-sex couples as envisaged in the Act, and not to an analysis of the nature of the institution of marriage itself or the theological and social dimensions of same-sex marriages.
The South African constitutional court and the rule of law: The masethla judgement, a cause for concre?
30 March 2011
North West University

Krüger, Rósaan

The rule of law as a foundational constitutional value constrains the exercise of public power but the precise limits of the constraints it sets are not well defined. In Masethla v President of the Republic of South Africa,1 the majority of the Constitutional Court opted for an interpretation of this value that frees the President from adherence to the demands of procedural fairness when exercising certain constitutional powers. This note will investigate the soundness of that interpretation against the background of theoretical expositions of the rule of law and earlier Constitutional Court judgments.
Property rights and traditional knowledge
31 March 2011
North West University

Cross, John T

For the past several decades, there has been a push to provide some sort of right akin to an intellectual property right in traditional knowledge and traditional cultural expression. This push has encountered staunch resistance from a number of different quarters. Many of the objections are practical. However, underlying these practical concerns is a core philosophical concern. A system of traditional knowledge rights, this argument suggests, simply does not satisfy the basic rationale for granting property rights in intangibles like inventions and expressive works. Intellectual property is meant to encourage innovation and creative activity. Most traditional knowledge, by contrast, is not innovative, at least in the same sense as the inventions and works that qualify for patents and copyrights. At present, the "anti-property" camp seems to have the better of the argument, as even the World Intellectual Property Organisation has abandoned the notion of true property rights. This article seeks to refute this philosophical objection to a property model for traditional knowledge. It argues that the classic philosophical argument justifying intellectual "property" namely, that property rights are justified only as a way to spur innovation and other creative activity is incorrect in two ways. First, the argument misstates the main goal of an intellectual property system. While intellectual property may serve as an incentive for innovation, society's primary concern is not the innovation per se, but instead the dissemination of knowledge. Second, there may be policy reasons other than the development of knowledge that can justify intellectual property-like rights. The article then applies these observations to the particular question of traditional knowledge and cultural expression. It demonstrates that a system of property rights could be useful in helping to encourage the dissemination of traditional knowledge, even if that knowledge is not "new" in the classic sense. Second, other important social concerns, especially the goal of ensuring accuracy in knowledge, may justify a system of property rights. While these arguments may not ultimately support a property rights system—after all, the practical concerns remain very real—they do help to refute the underlying philosophical objection.
From “struggle” to “post-revolutionary” politics: the National Party, the African National Congress, and the "great rapprochement".
19 January 2012
North West University

Furlong, Patrick J

• Opsomming: Die Nasionale Party as regerende party onder Suid-Afrika se apartheidsbestel, en sy langtydse teenstander en navolger, die African National Congress, blyk onwaarskynlike onderwerpe vir ‘n vergelyking: Die een verwant aan, en bekend vir, bekrompe etniese “verregse” nasionalisme, militante anti-Kommunisme, rassisme, en deur sommige kritici geëtiketteer as te assosieer met afwisselende kwasie-fascisme. Die ander: Die ANC, as ‘n politieke groepering met vae sosialistiese neigings en langdurige bande met die Kommunistiese Party. Tog het beide die NP en die ANC baie in gemeen. Beide het ontwikkel in ‘n tyd van oorloë: Byvoorbeeld die Suid-Afrikaanse Oorlog, die Wêreldoorloë, en ‘n langdurige stryd teen ‘n vorm van blanke heerskappy. Albei het ook vir jare hulself aangebied as buitengewone politieke party binne ‘n nasionalistiese grondslag (NP: Veral die wit Afrikaan en die ANC: Veral die swart Afrikaan) en as bewegings gemoeid met ‘n revolusionêre stryd teen ‘n onderdrukkende stelsel (NP: Teen Britse kolonialisme en die ANC: Teen apartheid). Voorts was albei ondubbelsinnig teenoor grootskaalse kapitalisme. Toe beide hierdie politieke groeperinge in ‘n stadium aan bewind gekom het, het elk ’n meer pragmatiese vorm van politiek gevolg, ‘n wyer steunbasis gesoek, en hulle aangepas by die voorskrifte van die wêreldkapitalisme. Tog het geeneen heeltemal ontslae geraak van die “strydpolitiek” nie. Dit sluit in ‘n beperkte geduld met direkte kritiek, of standpunte oor, die desentralisasie van gesag, asook die neiging om terug te val op groepsidentiteit en ‘n sterk afkeer te toon vir individualistiese liberalisme. Ondertussen het die NP tot niet gegaan, en heelwat van die oorblyfsels daarvan is deur die ANC verswelg. In vele opsigte beklemtoon hierdie historiese gegewe in welke mate hierdie “ou vyande” met mekaar in gemeen gehad het.
Bloodier than black and white: liberation history seen through detective sergeant Donald Card’s narrative of his investigations of Congo and Poqo activities, 1960-1965.
23 January 2012
North West University

Thomas, Cornelius

By 1950 the African National Congress and the Natal and Transvaal Indian congresses, had already embarked on an activist road to free Africans, Coloureds and Indians from unfair discrimination, injustices big and petty, and oppression. Over the next ten years, the liberation struggle quickened into a multi-fronted thrust against the apartheid state, including civil disobedience, strikes and boycotts, and the transition to violent struggle. From the pioneering works such as Edward Roux’s Time Longer than Rope (1964) through a host of treatises to the latest study by the South African Democracy Education Trust, The Road to Democracy Volume 1 (1960-1970) (2004) the liberation struggle has, with few exceptions, been sketched in black and white. Scholars generally sing the praises of the seekers of the public good (the liberation movement) and excoriate the perpetrators of evil (the apartheid state and its functionaries). The liberation struggle did indeed involve the efforts of those aspiring to freedom, opportunity and republican virtue against those who oppressed African, Coloured and Indian people and held them hostage through legislation and denial of opportunity and who appropriated the best fruits of society for white South Africans. Political struggle, and indeed political combat, as it played out in South Africa, however, made for a messy picture that often defies the hero-and-villain narratives that had invariably been produced and which seeped into our national consciousness. This article will explore the evasions, omissions, and twists that made possible the black and white liberation history that are currently consumed. To do so the activities of the Congo or iKongo movement, will be probed into as well as that of and Poqo. It will be done through the story of police detective Donald Card who had been involved in almost every significant event in South African history the past five decades. The why of certain events and developments, including crime under the cloak of politics, are often ignored or romanticised. This included charges of torture and brutality, push so readily into the public domain – as in Red Dust, the latest drama on torture in South Africa.
"In what way are gay men actually harmful to society?" Exploring the evidence on the feasibility of amendments to the Sexual Offences Act 23 of 1957.
11 June 2012
North West University

Grundlingh, Louis

Prompted by a perception that a gay sub-culture developed in the major urban areas of South Africa, and that this formed a threat to state security and to the established mores of society, the Minister of Justice, PC Pelser, appointed a Parliamentary Select Committee in 1968. The essence of the task given to the Select Committee was to provide clarity to the Department of Justice about a definition of homosexual acts as well as the causes, manifestations and extent of these practices. In addition, the Committee had to ascertain whether South African society was ready to decriminalise sodomy and “unnatural” sexual practices. A major concern was whether gay men were a danger to minors. The Committee received numerous written submissions and held regular meetings to hear oral testimonies, which covered a wide spectrum of opinions and issues. Representatives of the South African Police and the Afrikaans churches vehemently opposed homosexuality and homosexual activities. Ministers from the English churches pleaded for tolerance but with very specific preconditions. The position of the lawyers, psychiatrists and psychologists was clear: that homosexuality was not a threat, could not be “cured” and should be accepted. The investigation resulted in widespread debate, revealing facets of the moral dynamics of white South African society in the 1960s. Inter alia, issues such as the right of the state to make laws on morality and intrude on the privacy of individuals, diverse interpretations of the Bible, the level of intolerance for the “other” and the apparent difficulties to enforce any amendments to the Act - as far as homosexuality was concerned - were raised. By emphasising these issues, the intention of this article is to give an indication as to what extent gay white men were tolerated. To realize this, a discussion of the context of a very strong conservative government that underpinned the activities of Select Committee was essential. The upshot was that the deep-rooted conservatism of the state prevailed, finding expression in harsher and specific measures in the Immorality Amendment Act of 1969. The strong arguments from some church representatives, as well as the medical and legal fraternities, were discarded. Clearly the time was not yet ripe for liberalising sexuality in South Africa. Research for this article relied on the extensive testimonies before the Select Commission as published in its final report. In addition, relevant submissions in the Gay and Lesbian Archive at the University of the Witwatersrand helped to form a comprehensive picture and made qualitative analysis possible.
A transdisciplinary approach to understanding the causes of wicked problems such as the violent conflict in Rwanda
14 August 2012
North West University

Velthuizen, A

The paper is presented against a background of many wicked problems that confront us in the world today such as violent crime, conflict that emanates from political power seeking, contests for scarce resources, the increasing reaction all over the world to the deterioration of socio-economic conditions and the devastation caused by natural disasters. This article will argue that the challenge of violent conflict requires an innovative approach to research and problem solving and proposes a research methodology that follows a transdisciplinary approach. The argument is informed by field research during 2006 on the management of knowledge in the Great Lakes region of Africa, including research on how knowledge on the 1994 genocide in Rwanda is managed. The paper will make recommendations on how transdisciplinary research is required to determine the causes of violent conflict in an African context and how practitioners and academics should engage in transdisciplinarity. It was found that transdisciplinary research is required to gain better insight into the causes of violent conflict in an African context. It requires from the researcher to recognise the many levels of reality that has to be integrated towards a synthesis to reveal new insights into the causes of violent conflict, including recognising the existence of a normative-spiritual realm that informs the epistemology of Africa. It furthermore requires a methodology that allows us to break out of the stifling constraints of systems thinking and linear processes into the inner space at the juncture where disciplines meet (the diversity of African communities).
Religious and cultural dress as school: a comparative perspective
03 September 2012
North West University

De Waal, E;Russo, C J;Mestry, R

This article investigates and compares the different approaches towards the dress code of learners1 in South Africa and the United States of America (US), as the US mainly base litigation concerning school dress code on their freedom of speech/expression clause, while similar South African court cases focus more on religious and cultural freedom. In South Africa, school principals and School Governing Bodies are in dire need of clear guidelines on how to respect and honour the constitutionally entrenched right to all of the different religions and cultures. The crisis of values in education arises from the disparity between the value system espoused by the school and the community, and that expressed in the Constitution of the Republic of South Africa, which guarantees learners' fundamental rights, including those of freedom of religion, culture, expression and human dignity. On the one hand, the South African Schools Act requires of School Governing Bodies to develop and implement a Code of Conduct for learners, and on the other, that they strictly adhere to the Constitution of the country when drawing up their dress codes. The right of a religious group to practise its religion or of a cultural group to respect and sustain its culture must be consistent with the provisions of the Bill of Rights (which is entrenched in the Constitution) and this implies that other rights may not infringe on the right to freedom of religion and culture. In the US, although there is no legislation that protects learners' freedom of religion and culture at schools, their First Amendment guides the way. Their Supreme Court respects the religious values of all citizens provided that they are manifested off public school premises. While we acknowledge the existence of religious and cultural diversity at South African schools, this paper focuses on the tension among and on the existence of different approaches towards the human rights of learners from different religious and cultural backgrounds in respect of dress codes.
The right to dignity and restorative justice in schools
03 September 2012
North West University

Reyneke, M

A retributive and punitive approach is normally adopted in dealing with misbehaviour in South African schools. Despite the legal abolition of corporal punishment, more than 50 percent of schools still administer it. Other forms of punishment generally applied are also punitive in nature. The right to dignity of all of the parties affected by misbehaviour in schools is considered in this analysis. The possibility of adopting restorative justice as an alternative disciplinary approach is examined as a way of protecting, promoting and restoring the dignity of the victims of such misbehaviour.
The problems of proving actual or apparent bias: an analysis of contemporary developments in South Africa
03 September 2012
North West University

Okpaluba, C;Juma, L

This article takes a critical look at the divergent approaches of courts in constructing the meaning of actual and apparent bias in adjudicative contexts. It argues that while proving actual bias on the part of an adjudicator may not always be easy and parties often revert to apprehended bias, an allegation of bias in any adjudication process is a matter that courts take very seriously. This notwithstanding, the courts have failed to consistently demarcate the necessary elements and threshold of proof that complainants must overcome to secure a successful challenge of decisions based on adjudicative impartiality. Upon critical evaluation of the decisions on the subject so far rendered, this article suggests that the pattern which has seemingly emerged is that which weighs the allegations of bias against the presumption of impartiality and the requirements of the double reasonableness test.
A critical appraisal of the juvenile justice system under Cameroon's 2005 criminal procedure code: emerging challanges
03 September 2012
North West University

Tabe, S

The objective of this article is to examine the changes introduced by the 2005 Cameroonian Criminal Procedure Code on matters of juvenile justice, considering that before this Code, juvenile justice in Cameroon was governed by extra-national laws. In undertaking this analysis, the article highlights the evolution of the administration of juvenile justice 50 years after independence of Cameroon. It also points out the various difficulties and shortcomings in the treatment of juvenile offenders in Cameroon since the enactment of the new Criminal Procedure Code. The article reveals that the 2005 Code is an amalgamation of all hitherto existing laws in the country that pertained to juvenile justice, and that despite the considerable amount of criticism it has received, the Code is clearly an improvement of the system of juvenile justice in Cameroon, since it represents a balance of the due process rights of young people, the protection of society and the special needs of young offenders. This is so because the drafters of the Code took a broad view of the old laws on juvenile justice. Also a wide range of groups were consulted, including criminal justice professionals, children’s service organisations, victims, parents, young offenders, educators, advocacy groups and social-policy analysts. However, to address the challenges that beset the juvenile justice system of Cameroon, the strategy of the government should be focussed on three areas: the prevention of youth crime, the provision of meaningful consequences for the actions of young people, and the rehabilitation and reintegration of young offenders. Cameroonian law should seek educative solutions rather than to impose prison sentences or other repressive measures on young offenders. Special courts to deal with young offenders should be established outside the regular penal system and should be provided with resources that are adequate for and appropriate to fostering their understanding of juvenile crime.
South Africa - safe haven for human traffickers? Employing the arsenal of existing law to combat human trafficking
03 September 2012
North West University

Kruger, H B;Oosthuizen, H

Having ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, South Africa is obliged to adopt legislative measures that criminalise human trafficking and comply with other standards laid down in this international instrument. However, by mid-2011, South Africa had not enacted the required comprehensive counter-trafficking legislation. The question that now arises is if the absence of such anti-trafficking legislation poses an insurmountable obstacle to the prosecution of traffickers for trafficking-related activities. In asking this question the article examines the utilisation of existing crimes in order to prosecute and punish criminal activities committed during the human trafficking process. Firstly, a selection of existing common law and statutory crimes that may often be applicable to traffickingrelated activities is mapped out. Secondly, transitional trafficking provisions in the Children's Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are discussed. Finally, since the Prevention and Combating of Trafficking in Persons Bill B7 of 2010 will in all probability be enacted in the near future, the use of other criminal law provisions in human trafficking prosecutions, even after the passing of this bill into law, is reflected upon.
Disability discrimination and the right of disabled persons to access the labour market
03 September 2012
North West University

Marumoagae, M C

Inequality, discrimination and transformation remain the key challenges which most employers are faced with in the South African labour market. Key among such challenges has also been employers' ability to ensure that persons with disabilities access the labour market. In this paper I highlight employment discrimination experienced by persons with disabilities in South African workplaces, which often prohibits them from accessing employment opportunities. I argue that employers need to consider employing persons with disabilities and also reasonably to accommodate them within South African workplaces. I further illustrate efforts by the legislature to eradicate forms of unjustified discrimination against persons with disabilities through the enactment of the Employment Equity Act 55 of 1998. I argue that all of us need to understand how cultural, social, physical and other barriers continue to prevent persons with disabilities in South Africa from enjoying their constitutional rights to equality, freedom and human dignity, and further, that it is desirable that society at large and government work together towards eradicating barriers which prevent persons with disabilities from accessing the labour market.
The use of a therapeutic jurisprudence approach to the teaching and learning of law to a new generation of law students in South Africa
03 September 2012
North West University

Fourie, Elmarie;Coetzee, Enid

In rapidly changing social, economic and intellectual environments it is imperative that teaching and learning should be transformed from being primarily concerned with the transmission of knowledge (learning about) to being primarily concerned with the practices of a knowledge domain (learning to be). Law lecturers are faced with a new generation of law students, many of whom may be the first in their families to enter university, and one of the important challenges that we face, when educating law students, is how to enable these students to take their place in a very important profession. To meet this challenge it is necessary to instill skills that will be beneficial to the profession, future clients and the community as a whole. We at the University of Johannesburg are endeavouring to do so through embracing a therapeutic jurisprudence approach that focuses on the well-being of the student, the client and the community. The integration of therapeutic jurisprudence throughout the law student's studies, starting with orientation and continuing through to the final-year clinical experience, will enhance the therapeutic outcomes for all of the parties involved. A therapeutic jurisprudence approach, combined with appropriate teaching and learning methods, will enhance the student's interpersonal skills and writing and reading skills. The teaching methods invoked include role-play to transform formal knowledge into living knowledge, thereby stimulating students' natural practical curiosity and creating a learning environment that supports collaboration and encourages students to act purposefully in such an environment. This article discusses the teaching of first-generation students and how to overcome the existing social, cultural, economic and linguistic barriers by using a therapeutic jurisprudence approach, while upholding the values that should guide legal practice, such as integrity and respect for diversity and human dignity. The constitutional imperative of access to justice for all underlines the importance for law teachers of incorporating therapeutic jurisprudence in their teaching methods. In South Africa, law lecturers face many challenges in teaching law students and first-generation students. Passionate teachers will produce passionate students and realise that they have the power to transform thoughts, policies and lives. Students should be reminded that law is not just about financial rewards, but the ultimate reward of contributing to the betterment of society. The legal profession expects us to produce a well-rounded graduate for entry into the profession. This necessitates that our teaching methods be appropriate to prepare the student for an entry level of competence for the legal profession. Therapeutic jurisprudence creates the opportunity for the lecturer not only to equip the student with the skills required by the profession but to implement teaching methods that will prove to be beneficial for all of the role-players involved. The honing of skills such as legal writing and oral advocacy from the first year of study creates the opportunity for the students to develop to their full potential. In order to support a meaningful, integrated teaching approach, the development of skills is expanded on during each year of study and can prove beneficial to all role-players during clinical education, where the student has the opportunity to apply the acquired skills in real-life situations. The impact of a therapeutic jurisprudence on the development of legal skills can now be measured through the student's ability to focus on the well-being of the client and the community.
Procurement adjudication and the rights of children: Freedom Stationary (PTY) LTD v MEC for Education, Eastern Cape 2011 JOL 26927 (E)
03 September 2012
North West University

Couzens, M

Children are heavily reliant on the services provided by the government and irregularities in public procurement processes are bound to affect the realisation of children's rights. In the Freedom Stationery (Pty) Ltd v The Member of the Executive Council for Education, Eastern Cape the Court was urged by the Centre for Child Law acting as an amicus curiae to consider children's right to education and their best interests when deciding on an interim interdict which would result in a delay in the provision of stationery to several schools in the Eastern Cape. This case note contains a summary of the case, some comments on the court's approach to the rights of children in procurement adjudication, and an assessment of the significance of the case for the development of children's rights in South Africa.
The relevance of a contextualisation of the state-individual relationship for child victims of armed conflict
03 September 2012
North West University

Robinson, J A

The relationship between the individual and the State is discussed in this contribution. The argument is put forward that both the State and the individual are legal subjects endowed with legal subjectivity. In their relationship it must be accepted that the State is not only endowed with State sovereignty, but also that it prescriptively makes use of its authority. However, theirs is a legal relationship characterised by reciprocal rights and duties so that the balance point in their relationship must as a matter of course be determined legally. As an explanatory model the theory of public subjective rights, which is of German origin, is applied. This theory can serve only as a starting point, though, as it fails to address certain fundamental questions. The viewpoints of authors of the socalled Reformed Tradition will therefore be applied to elaborate on the theory. By adopting this approach it is endeavoured to explain that the relationship between the State and the individual may not be viewed as one characterised by the abuse of State authority or excessive individual claims against the State.
A South African perspective on mutual legal assistance and extradition in a globalized world
04 September 2012
North West University

Watney, M

This contribution focuses on the modalities of mutual legal assistance and extradition from a South African perspective. The question is posed whether South Africa has succeeded to establish the required framework as a fully fledged member of the international community to make a positive contribution in the fields of mutual legal assistance and extradition subsequent to its international political isolation during the apartheid era. Although the international community derives substantial benefit from a borderless global world, it has as a result also to deal with the negative impact of globalization on international crime. Physical and/or electronic crimes are increasingly committed across borders and may be described as borderless, but law enforcement (combating, investigation and prosecution of crime) is still very much confined to the borders of a state. Criminal networks have taken advantage of the opportunities resulting from the dramatic changes in world politics, business, technology, communications and the explosion in international travel and effectively utilize these opportunities to avoid and hamper law enforcement investigations. As a sovereign state has control over its own territory it also implies that states should not interfere with each other’s domestic affairs. The correct and acceptable procedure would be for a state (requesting state) to apply to another state (requested state) for co-operation in the form of mutual legal assistance regarding the gathering of evidence and/or extradition of the perpetrator. Co-operation between states are governed by public international law between the requesting and requested state and the domestic law of the requested state. The South African legislature has increasingly provided for extraterritorial jurisdiction of South African courts in respect of organized crime and terrorism. It does however appear that existing criminal justice responses are experiencing challenges to meet the demands of sophisticated international criminal conduct. Mutual legal assistance and extradition provisions may show that the world is becoming smaller for fugitives and criminals, but the processes are far from expeditious and seamless. An overview of the South African law pertaining to mutual legal assistance and extradition indicates that the South African legislative framework and policies as well as international treaties make sufficient provision to render international assistance in respect of mutual legal assistance and extradition. The role of the courts in upholding the rule of law and protecting the constitutionally enshrined bill of rights, is indicative of the important function that the judiciary fulfills in this regard. It is important that extradition is not only seen as the function of the executive as it also involves the judiciary. It appears that South Africa has displayed the necessary commitment to normalize its international position since 1994 and to fulfill its obligations in a globalized world by reaching across borders in an attempt to address international criminal conduct.
But is it speech? Making critical sense of the dominant constitutional discourse on pornography, morality and harm under the pervasive influence of United States first amendment
05 September 2012
North West University

Van der Poll, L

Under the pervasive influence of United States First Amendment jurisprudence, adult gender-specific sexually explicit (or “pornographic”) material is conceptualized, and thus protected in the “marketplace of ideas”, as a particular mode of expression; to be viewed as part of the fabric of an open, free and democratic society. The values which free expression are seen to promote centre upon the advancement of political debate and promotion of personal self-fulfilment and autonomy. Attempts to conceptualise sexually explicit material within a gender-specific human rights framework present distinct challenges which, in a patriarchal legal and political design, appear to be near insurmountable. These challenges seem to be related to the enduring impact of the common law conception of obscenity (with its strong moralistic overtones) on the jurisprudence of the United States Supreme Court, coupled with a subjective libertarianinspired test, and the Supreme Court’s general reluctance (also echoed by the South African Constitutional Court) to consider a gender-specific conception of harm emanating from feminist arguments premised upon women’s constitutional interests in human dignity, equality and bodily integrity. The social revolution of the 1960s, coupled with the women’s liberation movement, called for a distinct departure from the traditional conception of sexually explicit material as a mode of constitutionally defendable free speech and expression, a conception which unavoidably calls for a moralistic approach, separating acceptable forms of expression from those not deemed worthy of (constitutional) protection (termed “obscenity”, specifically created to satisfy the “prurient interest”). The Supreme Court’s obscenity jurisprudence is characterised by two key features. First, the court subscribes to an abstract concept of free speech, which proceeds from the assumption that all speech is of equal value, and thereby surmises that “non-obscene” sexually explicit material has social value, as do esteemed works of literature and art. Secondly, the court assumes that all individuals have equal access to the means of expression and dissemination of ideas and thus fails to acknowledge substantive (and gendered) structural inequalities. A closer inspection reveals that the Supreme Court’s justification of why freedom of expression is such a fundamental freedom in a constitutional democracy (and the reason that “non-obscene” sexually explicit material consequently enjoys constitutional protection) is highly suspect, both intellectually and philosophically. And yet the South African Constitutional Court has explicitly recognised the same philosophical justification as the basis for free speech and expression. The Constitutional Court has, in fact, both supported and emphasised the idea that freedom of expression stands central to the concepts of democracy and political transformation through participation, and has expressly confirmed the association between freedom of expression and the political rights safeguarded under the Bill of Rights. Moreover, the Constitutional Court has also endorsed the conception of adult gender-specific sexually explicit material as a form of free expression. And yet by embracing a moralistic, libertarian model of free expression, the very ideal of a free, democratic and equal society, one in which women can live secure from the threat of harm, is put at risk. A moralistic, libertarian model is simply not capable of conceptualising sexually explicit material as a possible violation of women’s fundamental interests in equality, dignity and physical integrity. This article has a two-fold objective. The first is to critically examine the dominant discourse on adult gender-specific sexually explicit material emanating from United States jurisprudence (and its resonance in South African constitutional thought), and secondly, to assess whether this particular conception is sensitive to the possible constitutional harm which may result from an abstract liberal-inspired accommodation of sexually explicit material in an imagined free and open democratic society, such as the one presented by the South African legal and constitutional contexts.
The 2011 local elections campaigns in the Tlokwe municipality, North-West Province: enhancing participatory governance?
20 September 2012
North West University

Fourie, Lynnette Mitizi

The South African Local Government Municipal Systems Act (Act 32 of 2000) requires participatory governance. Although this Act is not concerned with electoral participation in the first instance, it is argued that it also sets the tone for electoral communication. In the spirit of participatory governance it could be expected ofpolitical parties to inform the electorate about issues relevant to local government, stimulate debate, motivate voters to participate in the elections and promote democratic values. Against this background, this article endeavours to investigate to what extent the campaigns of political parties in the 2011 local elections displayed the context of local developmental government and enhanced participatory governance. A qualitative content analysis was done of the election material (manifestos, posters, television advertisements and pamphlets) of the ANC, DA, FF+ and Cope in the Tlokwe Municipality. It was found that all the parties adhered to the spirit of and actively promoted local developmental government in their manifestos, although they did so to a lesser extent in the more popular media (posters, television advertisements and pamphlets). It was concluded that these messages were not harmful to the sustainability of local developmental democracy.
The enigmatic but unique nature of the Israeli legal system
23 October 2012
North West University

Platsas, A E

The Israeli legal system is unique in that it straddles the two otherwise opposing worlds of tradition and innovation. This creates an enigma for the comparatist, making the exploration of this system an onerous and challenging task. The author wishes to maintain that the system in question is highly innovative and ascribes this quality to the proactive character of the Israeli Supreme Court, whose activism has had a major impact on the character of the domestic system as a whole. While the author explores the reasons why this has been the case, one of his main concerns in this paper will be to examine the innovative character of the Israeli Supreme Court per se, in comparison with equivalent courts in other parts of the world. In addition the author will seek to establish inter alia the character of the Israeli legal system by focusing on the three different elements that co-exist in the Israeli socio-legal structure (the Jewish element vis-à-vis the Arab element; the Liberal element vis-àvis the Orthodox element within the Jewish community; and the Civilian element visà- vis the Common law element). The author wishes to posit that the amalgamation of different legal and cultural traditions in Israel created a sui generis state of affairs for the legal system as a whole. This results in an overall systemic-methodological amalgamation which does not occur elsewhere in the world. The article concludes that the enigmatic and innovative characteristics of the Israeli legal system derive from the novel way in which the legal mix has occurred in this system (as opposed to the ingredients of the elements in the mix). In this respect, Israel may have contributed much to the reinvigoration of the modern comparative law agenda, and it may continue to do so in the future, as the system is not one of legal stasis (a mixed system) but one of legal kinesis (a mixing system).
What happens when the judiciary switches roles with the legislator? An innovative Israeli version of a mixed jurisdiction
23 October 2012
North West University

Sandberg, H

Civil Law codices are analytic, abstract and removed from the specific influence of particular cases. When rules are codified In Common Law systems they reflect a collection of rulings and not a collection of analytic principles. These differences stem from the nature and the motivations of the legislative enterprise. Civil-continental legislation originates in a legislative initiative “from above”. It is driven by the aspiration for legal harmony and completeness, and was originally formulated by academics. Legislation in the common-law countries results from a "bottom up" effect in which reality dictates the nature of the developing rules, step by step. Civil law systems like Common Law systems accept the supremacy of the statutory law over judge-made law. Yet when the judiciary has the authority or the power to influence the legislative agenda there is a veritable role switch. In a manner resembling continental-style legislation, the court reviewing existing legislation determines an abstract principle, usually in reliance on a particular constitutional text, and it is the legislature that is required to distill the principles into specific legislative norms, a function normally fulfilled by the common law court. The question forming the basis of this paper is the nature of the legislative process and the legislation produced by this kind of relationship. The paper addresses this question through the narrow prism of a detailed examination of a particular Israeli test case in which the Israeli Supreme Court handed down a ruling on a fundamental principle but on its own initiative delegated to the legislature the taskof implementing it and providing a specific legislative enactment of this principle, on the basis of which the Court would then rule on the concrete case. The result in this particular case was that the traditional roles of the respective branches were reversed. The practical result of the move to delegate the implementation of a far-reaching and fundamental ruling to the legislature was a subversion of the fundamental ruling and delayed justice for the parties who sought a resolution of the matter. The paper claims that this mechanism leads to the creation of a new variety of a "mixedsystem". The judiciary abandoned its primary obligation, namely to serve as an instance for resolving disputes, while the legislature became an executor of judicially enunciated principles. The law thus enacted resembles, in its detailed and complex language, a common law text while the principle formulated in the judgment of the court resembles a section of an analytical "civil law" statute. When the motivation for legislation stems from the court's directives, rather than the governmental or legislative interests, the legislature or the executive branch has an interest in thwarting the court’s intention through the use of various tactics readily at its disposal. This process also affects the vague and detailed formulation of the legislation, which has a character rather different from the abstract nature of civil law legislation. The lesson that this episode teach us, which the court itself internalized, is that a court cannot really dictate a legislative agenda and that it should instead focus on its designated role – the resolving of concrete disputes.
The status and role of legislation in South Africa as a constitutional demoracy: some exploratory observations
28 November 2012
North West University

Du Plessis, Marthinus Lourens

This note explores the proposition that in the face of probably one of the most unequivocal forms of constitutional review in a modern day state, legislation in South Africa has since 27 April 1994 grown in status (and stature) nonetheless, and has assumed an unprecedented role in our constitutional democracy. First, it is shown how constitutional review with the necessary judicial self-restraint has instilled respect for legislation in the context of and with reference to the separation of powers. Second, it is shown that and how statutes have become (subsidiary) allies to the Constitution and have been standing the realisation of constitutional values in good stead. Finally, it is argued that the constitutional requirement of popular participation in legislative deliberation has also added to the esteem for legislation in our constitutional democracy.
The use of force in effecting arrest in South Africa and the 2010 bill: a step in the right direction?
29 November 2012
North West University

Van der Walt, Tharien

In South Africa the use of force in effecting arrest is statutorily governed by section 49 of the Criminal Procedure Act 51 of 1977. The inception of the Constitution brought about a dramatic change in South African law in this regard. During 2001 and 2002 the two highest courts in the country had to decide on the constitutionality of sections 49(1) and 49(2) respectively. The Supreme Court of Appeal in Govender v Minister of Safety and Security 2001 2 SACR 197 (SCA) did not declare section 49(1) unconstitutional but found it had to be interpreted restrictively ("read down") to survive constitutional scrutiny. The Constitutional Court on the other hand confirmed the unconstitutionality of section 49(2) in S v Walters 2002 2 SACR 105 (CC) and the section was declared invalid. By then (as early as 1998) the legislature had already promulgated an amendment to section 49, but the amendment came into operation only in 2003 after section 49 had undergone intensive constitutional scrutiny. Legal scholars and others raised serious objections against the amendment - some were even of the opinion that it created a "right to flee" and that the rights of perpetrators were protected to the detriment of law-abiding citizens. The Department of Justice and Constitutional Development in 2010 drafted an Amendment Bill which was subsequently approved in Parliament. This paper discusses and concludes on: the developments over the last years in the South African law with regard to the use of force in effecting arrest by the South African Police Service (SAPS); international policies and guidelines of the police in this regard; and the application of the provisions of the Amendment Bill in practice and the possible pitfalls in the application of the latter.
A critique of the key legislative framework guiding civil liberties in Zimbabwe
15 January 2013
North West University

Mapuva, J;Muyengwa, L

The dynamic and controversial nature of Zimbabwean politics has manifested itself through several undemocratic practices, including restrictive legislation which sought to diminish participatory spaces and/or curtail civil liberties. Corruption, gross human rights violations and arbitrary decision-making processes have created a rift between citizens and the state. This has further created space for the establishment of prodemocracy civil society movements which have sought to mobilise citizens towards the restoration of democracy. The desire to cling to power by the ruling elites has seen the enactment of restrictive legislation that seeks to curtail and impinge on civil liberties and restrict the political landscape in favour of the ruling elites. Key legislative framework presented in this paper is within the areas of media and access to information, individual rights and freedoms, as well as legislation pertaining to the conduct of elections. In some cases, colonial legislation that politicians claimed to have repealed was reincarnated, as the post-colonial dispensation asserted its authority over its defenceless people.
Religion in education in South Africa: was social justice served?
21 January 2013
North West University

Van der Walt, Johannes Lodewicus

The promulgation of South African policy regarding the place of religion in public education was delayed until 2003, after a lively debate. The National Policy on Religion in Education effectively banned confessional, sectarian religion from public schools, but allowed for the teaching of Religion Studies as an academic subject and for religious observances, on condition that these were offered in a fair and equitable manner. Given the nature of the debate around religion and education in South Africa,1 it can be asked whether the state has served social justice through this Policy. A discussion of human rights, social justice, morality and the role of the state leads to the conclusion that although the state never actually mentioned the philosophical or moral driving forces behind the Policy, it is most likely that it applied tenets of secularism, value-plurality, pragmatic political expediency and modus Vivendi. This was probably the best route for the state to follow considering how, in the past, education suffered from the over-emphasis of divisive factors. Revised policy could arguably take cognisance of how actors on the ground dealt with this conundrum.
Constitutional dialogue and the dialogic constitution (or: Constitutionalism as culture of dialogue)
25 January 2013
North West University

Du Plessis, Marthinus Lourens

A constitution speaks. So my experience as theoretician of constitutional interpretation has taught me. Constitution-speak is not a monologue, not a monolithic soliloquy, with the supreme Constitution simply speaking for and on behalf of itself. Nor is it ventriloquial power-speak for and on behalf of powers that be. A Constitution's voice can, most clearly and credibly, be discerned in dialogue and, more precisely, in a virtually inestimable plurality of dialogic events in the life of a nation, but increasingly in our global experience too. I wish to identify and briefly describe some of these events, conceiving (with Peter Häberle) of the Constitution as an öffentlicher (ie open and public) Prozeß, and relying on a perception (and conception) of 'dialogue' capable of development and enrichment in dialogue with interdisciplinary and intercultural interlocutors.
The interpretation and application of article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction
28 January 2013
North West University

Robinson, Jacobus Abraham;Weideman, Jeanette

This article examines how courts in the UK, the USA and South Africa apply and interpret article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction. Courts in the UK have always adopted a very narrow interpretation and application of this defence. Even domestic violence victims who flee with their children to escape domestic violence have had difficulty invoking this defence successfully. This very narrow interpretation is due to the fact that English courts are primarily concerned with protecting and adhering to the principles of the Convention and they usually only consider the best interests of children in general. Additionally, English courts assume that imposing undertakings will sufficiently protect children from exposure to grave risk of harm. In the USA courts have moved away from the very strict application of this defence and have very fittingly applied and interpreted this defence much more widely, because courts consider the safety of the individual child to be paramount. This new direction seems to be in accordance with the modern challenges of increased domestic abuse that are faced worldwide. It seems that South African courts are similarly following a wider approach to the defence due to the fact that the best interests of a child will be of paramount importance. This approach is firmly entrenched in the South African Constitution, the Children's Act as well as the Convention. It is submitted that courts hearing a matter under the Convention should give consideration to the circumstances of each case concerning each individual child and a mechanical approach towards parental child abduction matters should be avoided, especially in instances where domestic violence is raised as the basis of the article 13(b) defence. Additionally, in certain circumstances undertakings will not sufficiently protect victims of domestic violence against harm and article 13(b) as defence should succeed in those instances.
Vox populi? Vox humbug! - Rising tension between the South African executive and judiciary considered in historical context - part one
31 January 2013
North West University

Hulme, D;Peté, S

This article takes as its starting point a controversy which has arisen around a proposed assessment by the South African government of the decisions of the Constitutional Court, giving rise to concerns that this will constitute undue interference with the independence of the judiciary. Part One of this article traces and analyses the developing controversy. It then compares the current clash between the South African Executive and Judiciary to a similar clash which took place in seventeenth century England, between King James I and Chief Justice Edward Coke. Such clashes appear to be fairly common, particularly in young democracies in which democratic institutions are yet to be properly consolidated. Although not immediately apparent, the similarities between the situation which existed in seventeenth England at the time of James I and that in present-day South Africa are instructive. In tracing the development of these two clashes between the executive and judiciary, Part One of this article lays the foundation for a more indepth comparison in Part Two.
Vox populi? Vox humbug! - Rising tension between the South African executive and judiciary considered in historical context - part two
31 January 2013
North West University

Hulme, D;Peté, S

Part One of this article traced rising tensions between the South African executive and the judiciary on the question of the separation of powers. This situation was then contrasted and compared with a clash which took place in the 17th century between King James I of England and Chief Justice Edward Coke. In Part Two of this article attention is focused on two specific cases which arose out of the clash between James and Coke - Prohibitions Del Roy and The Case of Proclamations. The article then turns to a discussion of the lessons which can be drawn from these cases. The arguments which were raised in the cases are contrasted and compared with more contemporary arguments advanced in the context of the present conflict between the South African executive and the judiciary. The views of Ronald Dworkin comparing 'majoritarian' and 'constitutional' conceptions of democracy are examined in the context of this debate. Tentative conclusions are then drawn and warnings issued of the negative consequences for South Africa if the potential conflict between the executive and the judiciary is not properly resolved.
The child justice act: a detailed consideration of section 68 as a point of departure with respect to the sentencing of young offenders
31 January 2013
North West University

Terblanche, S S

The Child Justice Act 75 of 2008 establishes a criminal justice system for child accused, separate from the criminal justice system which continues to apply for adult accused in South Africa. The Act aims to keep children out of detention and away from the formal criminal justice system, mainly through diversion. When these interventions would be inadequate or unsuccessful, the Act provides for child offenders to the tried and sentenced in child justice courts. Until now there has been little discussion of the details of the provisions dealing with sentencing. Sentencing in a child justice court is regulated by chapter 10 of the Act and section 68 is the first section in this chapter. This section effectively amounts to the “jurisdictional” provision of the new child sentencing system: it not only mandates child justice courts to impose their sentences in terms of the Act, but also provides the first set of boundaries (or the first part of the framework) within which sentencing should take place. Despite its brevity, section 68 is not without interpretative challenges. Of course, it has to be interpreted within the context of the entire Act. Explaining this context is the first function of this article. The various aspects of section 68 are further critically explored and discussed.
Determining the effect (the social costs) of exclusion under the South African exclusionary rule: should factual guilt tilt the scales in favour of the admission of unconstitutionally obtained evidence?
31 January 2013
North West University

Ally, D

Section 35(5) of the Constitution of the Republic of South Africa, 1996 governs the exclusion of unconstitutionally obtained evidence in criminal trials. Three groups of factors must be considered to assess whether unconstitutionally obtained evidence should either be excluded or admitted. This contribution is focussed on the third group of factors (also known as the "effect of exclusion", or the "social costs of exclusion") which consists of the "seriousness of the charge faced by the accused", and the "importance of the evidence to secure a conviction". This group of factors is concerned with the public interest in crime control. Some scholars argue that the "public mood" should be a weighty factor when our courts consider this group of factors. Against this background this article considers three issues: First, whether considerable weight should be attached to the "current mood" of society when our courts weigh and balance this group of factors against other relevant factors; secondly, whether a consideration of the "seriousness of the charge" and the "importance of the evidence for a successful prosecution" could possibly encroach upon the presumption of innocence; and, thirdly, whether factual guilt should be allowed to tip the scales in favour of the admission of unconstitutionally obtained evidence when the evidence is crucial for a conviction on a serious charge.
Recent developments in the provision of pro bono legal services by attorneys in South Africa
20 May 2013
North West University

Holness, Dave

This paper focuses on legal service delivery for the indigent by attorneys in private practice acting pro bono in civil rather than criminal matters. In this regard there have been and continue to be considerable gaps between the proper access to civil justice imperatives of constitutional South Africa and the status quo which has existed from the advent of a democratic South Africa until the present. Law as a vehicle for necessary positive change in the daily lives of South African residents is pertinently considered within the country’s woefully unequal socio-economic climate. This paper considers the role which pro bono work by private attorneys is playing and should play in promoting a more just and equitable society through proper access to justice. It explores the current position in South Africa as well as the position in selected foreign jurisdictions regarding pro bono services by attorneys in private practice in civil matters. Part of the discussion focuses on the question of whether pro bono work should be voluntary or mandatory. The merits of introducing a pro bono obligation are critically analysed by looking at the effect on both legal practitioners as well as those receiving the pro bono services. Having defined pro bono work, the practical need for pro bono work by lawyers in private practice is highlighted due to the dearth of legal aid in civil matters for indigent South Africans. Possible constitutional imperatives for the provision of free legal services in civil matters are highlighted. An important part of the paper is a reflection on some of the pro bono work being conducted by private firms of attorneys. The paper concludes with suggestions on means for establishing a more effective pro bono system in South Africa.
Driving corporate social responsibility (CSR) through the companies act: an overview of the role of the social and ethics committee
20 May 2013
North West University

Kloppers, Henk J

The corporate social responsibility (CSR) movement can be described as a bundle of trends comprising regulatory frameworks aimed at improving corporate practices and leading to changes in these practices, the mobilisation of corporate role players to support the development of states, and a management trend the purpose of which is to enhance the legitimacy of a business. Government is regarded as one of the most important driving forces behind the CSR agenda and it has a particularly important role to play in the creation of an enabling CSR environment. In general, advocates of legislative involvement in framing the CSR policy highlight the failure of existing voluntary systems as one of the main reasons why the state should play a more important role in the facilitation of CSR. Although governments realise the importance of encouraging socially responsible business, it should be noted that CSR should not replace regulation or legislation concerning social rights. Furthermore CSR should not be seen as shifting (or outsourcing) the state's responsibility for the provision of basic services (such as education or the provision of health services) to the private sector and thus "privatising" the state's responsibilities. However, the legacies of apartheid remain firmly entrenched in the social problems facing South Africa and it seems as if the Government is unable to deliver the social and physical infrastructure required to effect the desired transformation, thus necessitating the engagement of the private sector. The role of Government in establishing a CSR policy framework and driving CSR has become increasingly important. The (perceived) failure of the welfare state has given further impetus to the move of governments toward tapping into the resources of the private sector (through their CSR) in order to address socio-economic challenges. A purely voluntary approach to CSR without any legislative intervention will not succeed – a clear public policy requiring the implementation of socially responsible practices by the entire private sector is a necessity. Governments in general are increasingly beginning to view CSR as cost-effective means to enhance their sustainable development strategies, and as a part of their national competitiveness strategies to attract foreign direct investment. Given South Africa's history, legislation should be viewed as one of the main instruments enabling the Government to address the private sector's social, environmental and economic outreach activities. Against this background, this contribution identifies the regulations released in terms of the Companies Act 71 of 2008 in which the issue of the social and ethics committee is dealt with, as an important measure taken by Government to create a possible CSR platform. This contribution argues that the requirements regarding the creation of a social and ethics committee have the potential to embed the CSR notion in the corporate conscience. The aim of the contribution is to provide an overview of the role of the social and ethics committee, as envisaged by the Companies Regulations, 2011, as a potential driver of CSR.
Reasonable and probable cause in the law of malicious prosecution: a review of South African and commonwealth decisions
20 May 2013
North West University

Okpaluba, Chuks

The requirement that the plaintiff in an action for malicious prosecution must prove a lack of reasonable and probable cause to initiate, instigate or continue the prosecution on the part of the instigator or prosecutor is one of the four elements of that cause of action. It is a vital link between the lawfulness of the prosecution and the state of mind of the defendant. Again, whether a prosecution is wrongful or lawful depends on whether there was a reasonable and probable cause coupled with the animus iniuriandi of the defendant in instigating, initiating or continuing it. It is not whether the prosecutor possessed evidence to secure a conviction since that is for the trial court to decide after the conclusion of evidence; but, the honest belief by the prosecutor that, having carefully collected and objectively assessed the available information, the plaintiff was probably guilty of the crime. In coming to that decision the prosecutor must have grappled with both the subjective and objective elements in the exercise of that discretion. The Australian High Court judgment in A v New South Wales 2007 230 CLR 500 (HCA) has brought clarity to this aspect of the problem. However, as this paper contends, the ten-point guidelines enunciated by that court in that case and designed to provide the courts with a seemingly less complicated formula for determining if the prosecutor lacked reasonable and probable cause do not appear to have provided the panacea to the problem. Meanwhile, the distinct nature of the requirement of reasonable and probable cause is made clearer when it is compared with reasonable ground to arrest in the case of wrongful arrest and the tort of abuse of process. Also problematic and equally challenging is identifying where a reasonable and probable cause inquiry stops and malice begins. This is brought out in the attempt by the Supreme Court of Canada to unravel the tension between the proof of the existence of malice and reasonable and probable cause in the law of malicious prosecution in Miazga v Kvello Estate 2009 3 SCR 339 (SCC). The extent to which the guidelines laid down in these recent cases would have resolved the confusion in this field of the law is yet to be realised.
The child justice act: procedural sentencing issues
23 May 2013
North West University

Terblanche, Stephan S

In this contribution a number of procedural issues related to the sentencing of child offenders and emanating from the Child Justice Act 75 of 2008 are considered in some detail. As a general rule, the Act requires pre-sentence reports to be obtained from probation officers before sentencing any child offender, with only a limited number of exceptions. The article argues that the peremptory nature of the Act means that a probation report is always required, even if reports by other experts are also available. The exceptions are limited to instances other than those where the child offender is sentenced to any form of imprisonment or to residence in a care centre. The article addresses the question of whether or not the reference to imprisonment includes alternative imprisonment which is imposed only as an alternative to a fine. It suggests that alternative imprisonment should, generally, not be imposed on child offenders. When an exception is not prevented because of the sentence, a pre-sentence report may be dispensed with only when the offence is a schedule-1 offence (the least serious class of offences) or when obtaining a report would prejudice the child. It is argued that these exceptions are likely to occur rather rarely. A final aspect of the Act’s provisions on pre-sentence reports is the requirement that reasons be given for a departure from the recommendations in a pre-sentence report. This requirement merely confirms the status quo. The Act permits the prosecutor to provide the court with a victim impact statement. Such a statement is defined in the Act. It is a sworn statement by a victim or someone authorised by the victim explaining the consequences to the victim of the commission of the crime. The article also addresses the issue of whether or not the child justice court might mero motu obtain a victim impact statement when the prosecution does not do so. Finally, the article addresses appeals against and reviews of the trial courts’ sentences. It notes that appeal by the child offender is made somewhat easier, as some child offenders need not obtain leave to appeal. These include children under the age of 16, or older children sentenced to imprisonment. Again, the meaning of “imprisonment” is at least somewhat ambiguous. The provisions on automatic review have attracted considerable judicial attention already. The majority of these judgments confirmed the apparently clear wording of the Act, in terms of which the cases of all child offenders under the age of 16 should be reviewed regardless of whether they were legally represented or of the sentence imposed. In the case of child offenders aged 16 or 17, only custodial sentences are reviewable. The judgments which found this to be an incorrect interpretation are dealt with in some detail, with the conclusion that they were incorrectly decided.
Legal research methodology and the dream of interdisciplinarity
15 October 2013
North West University

Kroeze, Irma J

There are increasing calls for academics to abandon "traditional" disciplinary research and to engage in multi-, inter- and transdisciplinary research. The argument is that this will serve to break down working in "silos" and somehow lead to more innovative research. This article examines the concepts of multidisciplinary, interdisciplinary and transdisciplinary research to determine if this kind of research is possible in legal research. The basic premise is that science is unified by the need for some kind of justification, arguably in the form of falsifiability of theories. But science is also divided into natural, social and human sciences and this article argues that this division is based on methodological differences. Whilst the natural sciences employ a mostly empiricist methodology and the human sciences employ a mostly rationalist methodology, the social sciences seem to employ a mixture of the two methodologies. Law is a human science and moreover a professional discipline. Some argue that this professional nature militates against multi-, inter- and transdisciplinary (MIT) research as it requires law students to be taught how to "think like a lawyer". The article concludes that most law researchers engage in multidisciplinary research on a regular basis, but that interdisciplinary research is highly unlikely and transdisciplinary research almost never happens.
All roads lead to property: Pashukanis, Christie and the theory of restorative justice
16 October 2013
North West University

Koen, Raymond

Nils Christie is acknowledged generally as the theoretical founding father of restorative justice. Evgeny Pashukanis may be taken as the premier Marxist theoretician of law. This essay represents an endeavour to read Christie through the lens of Pashukanism, that is, to comprehend the theory of restorative justice developed by Christie in relation to the general theory of law formulated by Pashukanis. The early part of the essay is expository: firstly, it sets out in abbreviated form the fundamental tenets of Pashukanis's so-called commodity form theory of law, with some attention being given to the Pashukanist approach to criminal justice; and secondly, it explains the core elements of Christie's theory of restorative justice, including his critique of western criminal justice and his advocacy of a system of "conflicts as property" as the answer to the crisis of criminality which plagues the western world. The latter part of the essay is critical: it compares and contrasts Christie's proprietary theory of restorative justice with Pashukanis's commodity form theory of law. On the one hand, it is argued that there exists a remarkable theoretical concordance between Christie and Pashukanis in the sense that Christie's idea of criminal conflict as property constitutes a non-Marxist vindication of Pashukanis's analysis of the legal form. On the other hand, it is posited that because Pashukanis proceeds from a Marxist perspective and Christie does not, there remain crucial areas of difference between them, especially as regards the historicity of the legal form, the concept of legal subjectivity, and the role of the state. In the light of these differences the essay concludes with a Pashukanist critique of the Christie thesis, seeking to assess the prospects of restorative justice replacing criminal justice as the generalised mode of disposition of criminal conflicts.
The rights granted to trade unions under the Companies Act 71 of 2008
16 October 2013
North West University

Schoeman, Heidi C

With the entering into force of the Companies Act 71 of 2008 in 2011 a number of rights were granted to trade unions by the act. The Companies Act 71 of 2008 not only grants rights to registered trade unions, as is the case in labour law, but in some cases it grants rights to trade unions representing employees at the workplace. It is argued that rights afforded to trade unions by the act ought to be granted only to trade unions that are registered in terms of the Labour Relations Act 66 of 1995. In addition, it is also argued that the Companies Act 71 of 2008 ought in principle to differentiate between rights that are granted to registered trade unions representing employees at the workplace and rights that are granted to registered majority trade unions, or at the least to sufficiently representative trade unions.
The quest for a supranational entity in West Africa: can the economic community of West African states attain the status?
16 October 2013
North West University

Lokulo-Sodipe, Jadesola O;Osuntogun, Abiodun J

To reflect the growing trends in the international scene and in furtherance of the objective of its Revised 1993 Treaty, the Economic Community of West African States (ECOWAS) summit in December 2006 revolutionised the structure of ECOWAS by re-designating the Executive Secretariat into a quasi-independent commission headed by a President with a Vice President and seven commissioners. The rationale behind the revision was to make ECOWAS a supranational entity. This article considers whether or not a supranational system is essential for the attainment of ECOWAS' objectives. It asks if the conditions for an effective supranational system are in place in the West African sub-region which could provide a solid foundation for its success and why the quest for a supranational system has not yielded any fruitful result in West Africa. It argues that a retreat from the quest for supranationalism and a return to an inter-governmental system would be a retreat rather than the way forward, and expresses the need for the course of action to be sustained courageously till the impact of integration begins to emerge, and the disguised, patriotic impulse of states to protect their national sovereignty gives way to the full manifestation of ECOWAS as a supranational entity.
Constitutional court 1995-2012: how did the cases reach the court, why did the court refuse to consider some of them, and how often did the court invalidate laws and actions?
22 January 2014
North West University

Rautenbach, I M

The purpose of this article is to contribute data for the purposes of debates on how effectively the Constitutional Court performed its functions between 1995 and 2012. The cut-off date of 31 December 2012 has no other significance than that it was the last date before the beginning of the year in which this article was written. However, it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters. The figures contained in this article could at a later stage be used to determine what effect this amendment might have had on the functioning of the Court. it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters, will commence in the course of the second half of 2013. The figures contained in this article could at a later stage also be used to determine what effect this amendment might have had on the functioning of the Court. Between 1995 and the end of 2012, the Constitutional Court considered 464 applications for review. The ways in which these 464 applications reached the Court were as follows: • 35 referrals in terms of the interim Constitution; • 21 applications and referrals on matters within the exclusive jurisdiction of the Court; • 78 applications for confirmations of parliamentary or provincial laws and actions of the President; • 45 applications for direct access to the Constitutional Court; • 101 applications for leave to appeal against judgments of the Supreme Court of Appeal; • 150 applications for leave to appeal against judgments of other Courts; • 34 applications concerning previous judgments of the Court and other matters. The Constitutional Court refused to consider applications in 103 instances and considered the merits of applications in 361 instances. The number of refusals per category is as follows: • 7 refusals in respect of 35 referrals in terms of the interim Constitution; • no refusals in respect of 21 applications and referrals on matters within the exclusive jurisdiction of the Court; • 7 refusals in respect of 78 applications for confirmations of parliamentary of provincial laws and actions of the President; • 34 refusals in respect of 45 applications for direct access to the Constitutional Court; • 21 refusals in respect of 101 applications for leave to appeal against judgments of the Supreme Court of Appeal; • 34 refusals in respect of 150 applications for leave to appeal against judgments of other Courts; • 34 applications concerning previous judgments of the Court and other matters. The Constitutional Court invalidated in 192 instances legal rules and actions of organs of state and individuals. These invalidations were done in respect of 464 applications for review in all the categories and they were done in respect of 361 instances in which the Court reviewed the merits of applications. 41.39% of the 464 applications received were invalidated. 53.18% of the applications of the merits were considered, was invalidated. The invalidations in the different categories rules and action were as follows. In respects of: • Draft constitutional texts – 3 refusals to certify out of 5 texts considered (60%); • Constitutional amendments – 1 invalidation out of 6 considered (16.66%); • Acts of Parliament – 85 invalidations out of 165 considered (51.51%); • Bills of Parliament – 0 invalidations out of 2 considered (0%); • Acts of Provinces – 6 invalidations out of 11 considered (54.54%); • Bills of Provinces – 1 invalidations out of 2 considered (50%); • Local government legislative measures – 2 invalidations out of 5 considered (40%); • Common law and customary law – 8 invalidations out of 11 considered (72.72%); • Administrative and executive action – 45 invalidations out of 71 considered (63,38%); • Court discretionary action – 14 out of 35 considered (40%); • Action in respect of delict and contract – 7 invalidations out of 14 considered (50%).
The impact of the labour relations act on minority trade unions: a South African perspective
29 January 2014
North West University

Kruger, Johan;Tshoose, Clarence Itumeleng

The advent of the new political dispensation in 1994 heralded the coming of a new labour dispensation. Labour relations and labour policies changed significantly from that which prevailed under the previous government. The review of the labour legislation framework was at that stage a priority for the new government, with specific focus on the review of the collective bargaining dispensation. The abuse of trade unions under the previous government gave rise to a unique entrenchment of labour rights in the Constitution. The drafters thereof were determined to avoid a repetition of this abuse after 1994. Section 23 of the Constitution goes to great lengths to protect, amongst others, the right to form and join a trade union, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. In furtherance of section 23(5) of the Constitution, the Labour Relations Act 66 of 1995 was promulgated. One of the most significant changes of the LRA was that it now provided for legislated organisational rights. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the establishment or industry level. It is within this context that this article examines the impact of section 18 of the LRA on the constitutionally entrenched right of every person to 2 freedom of association, the right of every trade union to engage in collective bargaining, and the right of every trade union to organise. Furthermore, this article explores the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution. In part one the article examines the concept of majoritarianism, pluralism and industrial unionism in the context of South African Labour market. Part two deals with the impact of section 18 of the LRA on minority Trade Unions. Whilst part three explores the concept of workplace democracy. Part five investigates the applicability of international labour standards in the context of the right to freedom of association. Part four ends up with conclusion and recommendations on the impact of section 18 of the LRA.
Improving access to justice through compulsory student work at university law clinics
29 January 2014
North West University

Holness, Dave

In this paper an analysis is offered of compulsory so-called "live client" clinical legal education as part of the LLB as a means of improving access to justice for the indigent. This study first explores the factors which motivate which the establishment of a year’s compulsory community service during the LLB studies, and making clinical legal education compulsory. The motivation includes inducing law students and graduates to aid in the achievement of access to justice. The research then focuses on what the value of community service is in higher education generally. In the South African civil justice system many ordinary people cannot afford to use the courts because of the expense involved, or because they are ignorant of their rights. This is particularly the case in civil as opposed to criminal matters, as legal aid is more frequently focused on criminal than on civil matters in this country. This paper will consider the role which senior law students may play in rendering pro bono work as part of clinical legal education in their LLB studies. In this regard particular focus will be made on the University of KwaZulu-Natal (UKZN), the only university offering law studies in greater Durban. As for pro bono work by students during their LLB, consideration could be given to making clinical legal education a compulsory part of such students' curricula. Possible compulsory community service for law graduates (ie post-LLB) as envisaged in the proposed Legal Practice Bill falls beyond the ambit of this paper.
Constitutionalising the right legal representation at CCMA Arbitration Proceedings: law society of the Northern Provinces v Minister of Labour 2013 1 SA 468 (GNP)
29 January 2014
North West University

Selala, Koboro J

Recently, the issue of legal representation at internal disciplinary hearings and CCMA arbitrations has been a fervent topic of labour law discourse in South Africa. While the courts have consistently accepted the common law principle that there is no absolute right to legal representation at tribunals other than courts of law, a study of recent case law reveals that the majority of court judgments seem to be leaning in favour of granting legal representation at disciplinary hearings and CCMA arbitrations than denying it. In the recent case, Law Society of the Northern Provinces v Minister of Labour, the High Court struck down the rule of the CCMA which restricted legal representation at CCMA arbitration as unconstitutional on grounds of irrationality. The High Court considered that the impugned rule was inconsistent with section 3(3)(a) of the Promotion of Administrative Justice Act, which was specifically enacted to give effect to the right to administrative justice entrenched in the Constitution. In so deciding the High Court considered the importance of job security and the possible loss of job by an employee as a serious matter. This case note aims to analyse critically the court’s judgment in Law Society of the Northern Provinces v Minister of Labour and to consider its implications for dispute resolution in South Africa. It is asserted that although the right to legal representation is not absolute at labour proceedings, in light of the court’s decision in Law Society of the Northern Provinces v Minister of Labour it is not easy to identify the circumstances that would provide justification for the infringement of the right at CCMA arbitrations and probably at disciplinary hearings as well. Here, an argument is made suggesting that the court in the Law Society case has taken the right to legal representation too far.
Citizenship education and human capabilities: lynchpin for sustainable learning environment and social justice
26 February 2014
North West University

Marovah, Tendayi

The paper builds on and contributes to literature in citizenship education studies in higher education. Many studies in this field have explored the history, development and implementation of various forms of citizenship formation as an advancement of social justice. However, little has been written on how the formation of critical democratic citizens 2 links with the notion of sustainable learning environments and how it relates to social justice. Studies by McKinney (2007); Waghid (2007; 2009), Lange (2012); and Leibowitz, Swartz, Bozalek, Carolissen, Nicholls &Rohleder(2012) are among those on citizen formation in the South African higher education context. Thisconceptual paper argues that the formation of critical democratic citizens through higher education relates not only to social justice, but also to the advancement of sustainable learning environments (SLEs) beyond physical spaces. The paper explores the normative value of a democratic education theory, Marion Young’s (1990) theory of justice and the politics of difference, and human development principles in advancing citizenship education. These foster both sustainable learning environments and social justice. A democratic education theory lays the foundation for an inclusive and deliberative form of education, while a theory of justice and politics of difference advances better justice and an environment that is non-oppressive. Human development principles set the tone for a sustainable human development, which becomes a framework through which asustainable learning environment is built in pursuit of social justice. Drawing on a Capabilities Approach framework and the philosophy of Ubuntu, with emphasis on substantive freedoms, opportunities, and the thriving of the common good, the paper illustrates how citizenship education advances a conception of sustainable learning environments and social justices not necessarily limited to physical spaces, distributive justice or economic motives, but inclusive of institutional arrangements, policy issues and relational justice.
A critical investigation of the relevance and potential of IDPs as a local governance instrument for pursuing social justice in South Africa
12 March 2014
North West University

Fuo, Oliver Njuh

Unlike the situation in the past, when local government’s role was limited to service delivery, local government is now constitutionally mandated to play an expanded developmental role. As a “co-responsible” sphere of government, local government is obliged to contribute towards realising the transformative constitutional mandate aimed at social justice. South African scholars and jurists share the view that social justice is primarily concerned with the eradication of poverty and extreme inequalities in access to basic services, and aims to ensure that poor people command sufficient material resources to facilitate their equal participation in socio-political life. In order to enable municipalities to fulfil their broad constitutional mandate, the system of integrated development planning (IDPs) came into effect in South Africa in 2000. Each municipality is obliged to design, adopt and implement an integrated development plan in order to achieve its expanded constitutional mandate. The IDP is considered to be the chief legally prescribed governance instrument for South African municipalities. The purpose of this article is to explore and critically investigate the relevance and potential of IDPs in contributing towards the achievement of social justice in South Africa. This article argues inter alia that the multitude of sectors that converge in an IDP makes it directly relevant and gives it enormous potential to contribute towards social justice because, depending on the context, municipalities could include and implement strategies that specifically respond to diverse areas of human need. In this regard, the legal and policy frameworks for IDPs provide a structured scheme that could be used by municipalities to prioritise and meet the basic needs of especially the poor. Despite its potential, it is argued that the ability of IDPs to respond to the basic needs of the poor is largely constrained by a series of implementation challenges partly attributed to the underlying legal and policy framework.
The prosecution of incitement to genocide in South Africa
12 March 2014
North West University

Van der Merwe, Hermanus J.

The inchoate crime of direct and public incitement to commit genocide was first recognised under the Convention on the Prevention and Punishment of the Crime of Genocide (1948). The creation of the crime was a direct result of the horrific effects of acts of incitement before and during the Second World War. Today the crime is firmly established under international law and is also criminalised in many domestic legal systems. History shows that incitement to crime and violence against a specific group is a precursor to and catalyst for acts of genocide. Consequently, the goal of prevention lies at the core of the prohibition of direct and public incitement to genocide. However, it may be said that this preventative objective has thus far been undermined by a general lack of prosecutions of the crime, especially at the domestic level. This prosecutorial void is rather conspicuous in the light of the new vision of international criminal justice under which domestic legal systems (including that of South Africa) bear the primary responsibility for the enforcement of the law of the Rome Statute of the International Criminal Court (Rome Statute), which in Article 25(3)(e) includes the crime of direct and public incitement to commit genocide. This article provides a brief historical and teleological overview of the crime of direct and public incitement to commit genocide under international law, as well as the definitional elements thereof as interpreted and applied by the International Criminal Tribunal for Rwanda (ICTR). Thereafter it examines the criminalisation of incitement to genocide in contemporary South African law in order to assess South Africa’s capacity to prosecute incitement to genocide at the domestic level. In this regard there are, in theory, various 'legal avenues' for the prosecution of incitement to commit genocide in South Africa, namely: as a crime under the Riotous Assemblies Act 17 of 1956; as a crime under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act); or as a crime under customary international law pursuant to section 232 of the Constitution of the Republic of South Africa, 1996. The article reflects critically on the viability of prosecuting incitement to genocide in terms of each of these alternatives. The article highlights a number of practical and legal problems as regards the prosecution of incitement to commit genocide under the Riotous Assemblies Act as well as under customary international law. It is argued that the prosecution of incitement to genocide in terms of the ICC Act is preferable, as this would respond directly to an international consensus as regards the unique and egregious nature of genocide by providing for a limited form of extraterritorial criminal jurisdiction. Prosecution under the ICC Act would also reflect the objectives of the Rome Statute pursuant to which South Africa has certain international legal obligations. However, it is submitted that legislative amendment of the ICC Act is needed, since the crime is not explicitly provided for thereby at present. It is submitted that the legislative amendment must provide for the distinct crime of direct and public incitement to genocide in terms of South African criminal law. Such an amendment will remove the existing legal obstacles to the domestic prosecution of incitement to genocide and enable effective prosecution thereof at the domestic level. The proposed amendment will have the effect of strengthening the alignment between South African law and the objectives of the Rome Statute and may have preventative benefits in the long run.
Reflections on judicial views of Ubuntu
12 March 2014
North West University

Himonga, Chuma;Taylor, Max;Pope, Anne

Since S v Makwanyane, ubuntu has become an integral part of the constitutional values and principles that inform interpretation of the Bill of Rights and other areas of law. In particular, a restorative justice theme has become evident in the jurisprudence that encompasses customary law, eviction, defamation, and criminal law matters. This contribution explores the scope and content of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape. Two major epochs are highlighted in the development of ubuntu, marked by the constitutional decisions in Makwanyane and PE Municipality respectively. The former carved the central avenue of development for ubuntu, while the latter marked the start of the thematic development of the concept in the direction of restorative justice. Furthermore, the article engages critically with the use of ubuntu, with criticisms levelled against the conceptualisation of ubuntu as a legal notion, ranging from its ambiguity to its redundancy, to perceptions of dichotomies, and issues of exclusion. The paper also questions the manner in which the courts have applied the legal concept of ubuntu uncritically, without reference to African sources to illustrate its meaning in different contexts, and without questioning its compatibility with the Bill of Rights. Finally, it attempts to reveal the connections between ubuntu and the values underlying the Bill of Rights.
Race as/and the trace of the ghost: jurisprudential escapism, horizontal anxiety and the right to be racist in BoE trust limited
12 March 2014
North West University

Modiri, Joel M

This contribution draws on critical race theory and critical legal theory in order to read and critique the Supreme Court of Appeal judgment of Erasmus AJA in BoE Trust Limited 2013 3 SA 236 (SCA). It will specifically focus on the contested jurisprudential and racial politics reflected in the reasoning followed in the judgement. It specifically takes issue with the way in which the judge avoided dealing directly with the constitutional and political implications of racially-exclusive testamentary provisions. Three specific features of the judgment are highlighted in the note as problematic: first, the rhetorical moves and ‘legal interpretive techniques’ by which the judge escaped the basic legal texts governing the situation in which a racially discriminatory provision is included in a will, as well as the substantive reasoning and normative choices that those texts necessarily invite. Secondly, how the escape from those legal texts evinces, or perhaps even facilitated, a certain evasion of, or anxiety towards the horizontal application of the Bill of Rights which explicitly proscribes overt (racial) discrimination by private non-state actors. And thirdly, how by following a formalist legal approach, one in which the basic assumptions of liberal legalism and capitalism are viewed as natural, normal and immutable, the judgment lacks a decisive rejection of racism. The judgment’s uncritical adulation of the common law of succession (and specifically the principle of freedom of testation) and its negation of a more substantive, constitutionally-infused mode of reasoning and adjudication generally reflects a conservative or traditional view of law. It is suggested that this view of law is problematic in our current post-apartheid context for two central reasons: it stands in tension with the project of transformative constitutionalism and prevents the coming into being of a more critical race jurisprudence for postapartheid South Africa.
Constitutional analysis of intellectual property
14 April 2014
North West University

Van der Walt, André J;Shay, Richard M

This article analyses the Constitutional Court’s treatment of property interests in the face of state regulation to gain an understanding of the type of state interference that is justifiable in terms of section 25(1) of the Bill of Rights. This is done by examining the Constitutional Court’s dicta relating to the meaning of deprivation and how these inform the meaning of property in the constitutional context. The methodology that the Constitutional Court has formulated to assess if state interference complies with the provisions of section 25 is explained to show the type of state regulation that has been found legitimate. We then consider how this understanding of constitutional property and the state’s legitimate exercise of its inherent police power interact in the setting of intellectual property by contrasting the various policy objectives underlying the different statutory regimes governing intellectual property. This theoretical analysis is then applied to two contemporary examples of feasible state interference with existing intellectual property interests, namely the proposed plain packaging measures which severely restrict the use of tobacco trade marks, and a fair dealing exception allowing the use of copyright works for the purpose of parody. These examples serve to illustrate the context and manner in which intellectual property interests may come before the Court and the necessary differentiation with which these interests should be treated. The appropriate judicial assessment of the true impact that state action could have on vested property interests is explained and contrasted with the balancing exercise that is employed at the earlier stage of policy making. This discussion is concluded by highlighting some of the interpretational issues that will arise and how some constitutional values could be curtailed in the absence of legislative intervention.
Towards the protection of human rights: do the new Zimbabwean constitutional provisions on judicial independence suffice?
14 April 2014
North West University

Chiduza, Lovemore

If human rights are to be effectively protected in any country, the judiciary has to recognise that it also has a role to play in this regard. The rationale for this is that the judiciary has a duty to enhance and protect human rights. Across Africa and most notably in Zimbabwe political interference has been noted as a factor that limits judicial independence. In Zimbabwe the weak protection of judicial independence has contributed to gross human rights violations. Constitutional reforms have been conducted in order to improve the independence of the judiciary and consequently the judicial protection of human rights. These efforts have resulted in the adoption of a new Constitution in Zimbabwe which has replaced the Lancaster House Constitution. The Constitutional reforms have captured legal principles which will ensure an improvement in the human rights situation. Key to the reforms has been the independence of the judiciary. The Constitution guarantees the independence of the judiciary. Despite such guarantees there are a number of challenges with regards to this independence. The aim of this paper is therefore to analyse the judicial reforms introduced by the Constitution of Zimbabwe with a view to establishing whether or not such reforms are likely to improve judicial independence and in turn the protection of human rights in Zimbabwe.
Mobilising History for nation-building in South Africa: A decolonial perspective.
15 May 2014
North West University

Ndlovu, Morgan

One of the greatest challenges facing people in the process of becoming South Africans today is that of building a cohesive national identity out of diverse and competing national, cultural and ethnic aspirations and identities that were never imagined as belonging to a single nation-state. This challenge has been made worse by the fact that the advent of the post-apartheid dispensation came with liberal democratic values of diversity, tolerance and various forms of freedom such as those of choice, association and speech. All of these freedoms have brought about an impediment to the cultivation of the spirit of patriotism, common belonging and unity among the peoples meant to become South Africans. While a number of obstacles have been identified in the quest to develop a sense of common belonging among the peoples who occupy the cartographic space known as South Africa today, the question of knowledge production and its divisive role in the making of South Africa has not yet been comprehensively addressed. This gap needs to be addressed urgently with specific reference to the field of producing historical knowledge because the manner in which historical events and narratives are imagined and reconstructed in South Africa today has the potential to constrain and/or enhance common belonging. This article is a decolonial epistemic perspective on the production of historical knowledge in South Africa and it argues that a decolonised historical narrative can possibly lead to the emergence of a cohesive South African national identity.
The secular and the sacred in the thinking of John Milbank: a critical evaluation
04 July 2014
North West University

Vorster, Nico

This article examines John Milbank's deconstruction of secular social theory, and the counter master narrative that he proposes. Milbank depicts secular social theory as based on an ontology of 'violence'. Instead, he proposes a participatory Christian master narrative based on an ontology of peace. Two questions are posed in this article. First, is Milbank's description of secular thought as undergirded by an ontology of violence valid? Second, does the Christian counter narrative that he proposes provide an adequate and viable social theory? After explicating Milbank's analysis of secular social theory and his alternative of an ontology of peace, the article comes to the conclusion that Milbank's analysis of secular theory is seriously flawed because of the very comprehensive and universal content that he gives to the term 'violence'. His alternative social theory is also not viable because of the ecclesiocentric nature of his model. It is argued that Milbank's alternative narrative displays contradictions and does not escape theocratic, relativist and 'violent' elements.
The significance of philosophical tools for good governance with reference to South Africa
19 November 2014
North West University

Vyas-Doorgapersad, S.;Simmonds, K.

The breadth and complexity of issues that Public Administration deals with requires the pursuit of multidisciplinary approaches, rather than a singular orientation or perspective. The public administration’s strength and promise lies in the tapestry of ideas that continues to evolve from the synthesis of a broad body of research in related disciplines. Perhaps its distinct niche as a field of inquiry is best identified by the attributes of intellectual chaos and conceptual untidiness (Ferraioli 2001:1). This article attempts to unravel the trans-disciplinary relationship of philosophy and public administration in order to determine the significance of ethical reasoning in decision-making structures. Due to the advent of New Pubic Management (NPM), Public Administration faces a paradigmatic shift towards decentralisation and relativism that demands more accountability and responsibility. The authors aim to explore the merits of philosophical tools to ensure ethical governance in a South African context. The article philosophises that a normative approach is necessary to induce ethical structures in Public Administration/Management. It concludes that it is vital for Public Administration to work in conjunction with the normative tools of ethics, integrity and honesty to create an environment of good governance, as well as an ethical society.
Proselytism and the right to freedom from improper irreligious influence: the example of public school education
21 January 2015
North West University

De Freitas, S A

Jurisprudentially speaking, "proselytism" is a concept within the larger genus of the protection of religious rights and freedoms. The word lends itself to differing opinions. However, there is a popular school of thought that "proselytism" has to do only with influencing people to adopt a particular religion. Such an understanding relies on the view that only the "religious" can be insidious and bear the potential to improperly proselytise, and thus excludes the possibility of improper irreligious forms of influence. In referring to the example of public-school education, it is argued that as much as the religious has the potential for improper proselytising, irreligious teachings or expressions also run the risk of improper proselytising. Not only are irreligious beliefs in many instances diametrically opposed to religious beliefs; they are a belief in themselves and cannot be seen as necessarily harmless or without the potential to proselytise improperly. Consequently, this article introduces an equitable and accommodative understanding of proselytism, which places the potentially harmful effects of both religious and irreligious beliefs on an equal footing with each other (something befitting to plural and democratic paradigms). This article therefore also cultivates further debate on improper irreligious proselytism in religious rights and freedoms jurisprudence, a scant topic in human rights jurisprudence.
The International Humanitarian Law notion of direct participation in hostilities – a review of the ICRC interpretive guide and subsequent debate
21 January 2015
North West University

Bosch, Shannon

The phrase "direct participation in hostilities" has a very specific meaning in international humanitarian law (IHL). Those individuals who are clothed with combatant status are authorised to participate directly in hostilities without fear of prosecution, while civilians lose their civilian immunity against direct targeting whilst they participate directly in hostilities. Any civilian activity which amounts to "direct participation in hostilities" temporarily suspends their presumptive civilian protection and exposes them to both direct targeting as a legitimate military target and prosecution for their unauthorised participation in hostilities. Since existing treaty sources of IHL do not provide a definition of what activities amount to "direct participation in hostilities", the ICRC in 2009 released an Interpretive Guide on the Notion of Direct Participation in Hostilities - in the hope of providing a neutral, impartial and balanced interpretation of the longstanding IHL principle of direct participation in hostilities. While not without criticism, the Interpretive Guide aims to respect the customary IHL distinction between "direct participation in hostilities" and mere involvement in the general war effort. The Guide proposes a three-pronged test which establishes a threshold of harm, and requires direct causation together with a belligerent nexus. Collectively, these criteria limit overly-broad targeting policies, while distinguishing occasions of legitimate military targeting from common, criminal activities. Together with these three criteria, the Guide introduces the notion of the revolving door of protection, together with the concept of a "continuous combat function". Both these new concepts have been the subject of criticism, as too the idea that a presumption of non-participation status should apply in cases of doubt. Nevertheless "nothing indicates that the ICRC's interpretive guidance is substantively inaccurate, unbalanced, or otherwise inappropriate, or that its recommendations cannot be realistically translated into operational practice" in a way which will ensure that the fundamental principles of distinction and civilian immunity upon which all of IHL is built are observed.
The law and practice of criminal asset forfeiture in South African criminal procedure: a constitutional dilemma
21 January 2015
North West University

Basdeo, Vinesh

The deprivation of the proceeds of crime has been a feature of criminal law for many years. The original rationale for the confiscation of criminal assets at international level was the fight against organised crime, a feature of society described by the European Court of Human Rights as a "scourge" so that the draconian powers which are a feature of confiscation regimes around the world have been approved in circumstances which otherwise might have caused governments considerable difficulties before the international human rights tribunals. The primary objective of this article is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution. This article attempts to answer three questions. Firstly, why is criminal asset forfeiture important to law enforcement? Secondly, in which circumstances can property be forfeited and what types of property are subject to forfeiture? Thirdly, how is forfeiture accomplished, and what are its constitutional ramifications?
Unlawful occupation of inner-city buildings: a constitutional analysis of the rights and obligations involved
22 January 2015
North West University

Strydom, Janke;Viljoen, Sue-Mari

The unlawful occupation of inner-city buildings in South Africa has led to a number of legal disputes between vulnerable occupiers and individual landowners that highlight the conflict between individuals' constitutional right not to be evicted in an arbitrary manner and property owners' constitutional right not to be deprived of property arbitrarily. The cause of this tension is a shortage of affordable housing options for low-income households in the inner cities, a fact which shows that the state is evidently struggling to give effect to its housing obligation embodied in section 26(1) and (2) of the Constitution. In the majority of cases the courts assume that any interference with private landowners' rights beyond a temporary nature would be unjustifiable, but they do this without undertaking a proper constitutional analysis to determine whether a further limitation of the individual landowner's property rights might be justifiable and non-arbitrary in the circumstances of each case. In general the courts can allow, suspend or refuse the eviction of unlawful occupiers, provided that the order does not amount to an arbitrary deprivation of property. Nevertheless, in some instances the arbitrary deprivation of property is unavoidable, despite the court's best efforts to protect property entitlements. These eviction cases show the limits of the courts' powers both to provide adequate solutions to protect owners' property rights and to give effect to the constitutional housing provision. In the light of three eviction cases, namely Blue Moonlight, Modderklip and Olivia Road, this article explains the role of the court and the local authority, together with the entitlements and social obligations of inner-city landowners within the framework of the property clause, in order to analyse the constitutionality of the courts' decisions and to suggest ways in which the inner-city housing shortage may be addressed more effectively. This article also considers how two foreign jurisdictions, namely England and the Netherlands, have managed the precarious relationship between urban landowners – who often allow buildings to decay and stand vacant – and the homeless. These jurisdictions provide innovative alternatives to the expropriation of the ownership of private inner-city properties for housing purposes. Similar measures, tailored to accommodate the South African constitutional, economic and socio-economic landscape, may be a welcome addition to the existing statutory powers of the local authorities tasked with combatting homelessness in urban areas.
Shaken baby syndrome: a South African medico-legal perspective
22 January 2015
North West University

Le Roux-Kemp, Andra;Burger, Elsie

Shaken Baby Syndrome refers to the violent and repetitive shaking of an infant, and is a form of abusive head trauma. It was first described in 1974, and has since been the topic of intensive study and discussion. The syndrome has classically been diagnosed with a triad of injuries, namely subdural haemorrhage, retinal haemorrhage and encephalopathy (brain abnormalities). However, recent publications have led to some doubt regarding the causation and diagnostic significance of the triad. It is now generally accepted that other conditions, even natural diseases, may cause the findings listed in the so-called "triad". To date, no reported case law is available on Shaken Baby Syndrome in South Africa; therefore this article focuses on cases in the United States and United Kingdom to delineate some of the issues associated with litigating the condition. This includes the obligation of expert witnesses to give independent, factual evidence about their areas of expertise. It is recommended that medical and legal professionals involved in cases of alleged child abuse should collect as much information as possible about the context of the case. Confessions by parents or caregivers should be treated with circumspection. Awareness campaigns should be aimed at informing the public of the dangers of shaking an infant. And with regards to Shaken Baby Syndrome an increased focus on evidence-based medicine is necessary to dissipate the uncertainty around the condition.
Legislative prohibitions on wearing a headscarf: are they justified?
22 January 2015
North West University

Osman, Fatima

A headscarf, a simple piece of cloth that covers the head, is a controversial garment that carries various connotations and meanings. While it may be accepted as just another item of clothing when worn by non-Muslim women, it is often the subject of much controversy when worn by Muslim women. In recent years the headscarf has been described as a symbol of Islam's oppression of women and simultaneously of terrorism. As the debate regarding the acceptability of the headscarf in the modern world continues, an increasing number of states have legislated to ban the wearing of the headscarf. This article critically examines the reasons underlying these bans and argues that these prohibitions are not justified. It does this by first analysing the place of the headscarf in Islam, its religious basis and its significance to Muslim women. It argues that the headscarf is more than just a mere religious symbol and that Muslim women wear the headscarf as a matter of religious obligation. The headscarf is considered to be an important religious practice protected by the right to freedom of religion. Thereafter the article examines legislative bans on the headscarf in France, Turkey and Switzerland in order to identify the most popular justifications advanced by states and courts for banning the headscarf. It critically evaluates the justifications for protecting secularism, preventing coercion, promoting equality and curbing religious extremism, and disputes that the reasons put forward by states and accepted by courts justify banning the headscarf. It thereafter explores how South African courts would respond to a headscarf ban and argues that schools and employers should accommodate the headscarf. While Muslim women may not have an absolute right to wear the headscarf, there has thus far been no justifiable reason for banning the headscarf.
Is law science?
22 January 2015
North West University

Roos, M C

The question this contribution sets out to address is whether or not law can be regarded as a science. This notion is readily accepted by many, yet it is submitted that a proper theoretical justification for such an assumption is usually missing. The traditional primary sources of law, South African case law and legislation, distinguish between legal practice and legal science, but the basis of the distinction is not clear. However, an entire body of literature in the philosophy of science has developed around the question of when a discipline will amount to science. Various demarcation criteria proposed in the philosophy of science are considered. These include that science uses the scientific method, is susceptible to falsification, is puzzle-solving within a paradigm or renders beneficial results. None of these criteria offers a satisfactory solution to the problem. The proposition by a group of philosophers including Herman Dooyeweerd, Marinus Stafleu and DFM Strauss, that the answer to the demarcation question is to be found in modal abstraction, is then considered. Modal abstraction amounts to a consideration of reality (persons, things, theories and rules) from one or more defined point(s) of entry. It is an artificial and learnt manner of thinking as it approaches reality from the perspective of one of the modalities of being. For example, juridical abstraction would mean that a cow is considered as the object of someone's proprietary rights. An abstract idea of the cow's characteristics, from a juridical point of view, is formed and the rules of property law are applied. A number of South African legal philosophers, amongst others Van Zyl, Van der Vyver and LM du Plessis, have followed this approach. The South African legislature has also attempted to define the terms "science" and "research", mainly for funding purposes. These definitions are considered and the conclusion is that they do not provide the clear-cut answers one would expect. It will be argued that the nature of activities will determine whether an endeavour is scientific or not. The conclusion is that an alignment of the demarcation criterion developed by Strauss and others and the statutory definitions can provide a workable demarcation criterion. This "test" is then applied to the activities of law students, academics, practitioners and judicial officers to determine when they will be practising "science".
Regulating traditional justice in South Africa: a comparative analysis of selected aspects of the traditional courts bill
22 January 2015
North West University

Soyapi, Caiphas Brewsters

Traditional justice systems have been in place for a very long time in South Africa and in Africa in general. They are characterised by informal systems that are not beset by the normal technicalities prevalent in formal justice systems. In recent times South Africa has sought to do away with the Black Administration Act, which was the regulating legislation on traditional justice systems, by introducing the Traditional Courts Bill. Initially introduced in Parliament in 2008 and withdrawn for another tabling in 2012, the Bill has been met with much criticism. Instead of venturing on a clause by clause analysis of the provisions of the Bill this note considers selected aspects of it which are perceived to be significant and which have courted controversy. These are ascertainment, legal representation, jurisdiction, gender, and the hierarchy of courts. The essential arguments are that the Bill has not been properly aligned with the Traditional Leadership and Governance Framework Act 41 of 2003 (as amended in 2009) or the Constitution of the Republic of South Africa, 1996 and that the above issues have not been addressed adequately or are at times only vaguely addressed. The note also considers various provisions from other African countries with similar legislation and which also regulate on the same issues, for the purposes of identifying better ways of addressing the selected issues. In the final analysis, the recommendations are not that the South African legislature must transpose the provisions of other countries, but that the framers of the Bill must reconsider these issues along the lines in which they are addressed in the countries with which comparisons are drawn here. Without a reconsideration of the issues, the Bill will still be met with criticism even from those it is meant to regulate, and could potentially result in various constitutional challenges and litigations.
The incorporation of Public International Law into Municipal Law and Regional Law against the background of the dichotomy between monism and dualism
22 January 2015
North West University

Ferreira, Gerrit;Ferreira-Snyman, Anél

Monism and dualism represent two different approaches towards the relationship between public international law and municipal law. While the former views public international law and municipal law as a single legal system, the latter regards these two areas of law as separate and distinct legal systems that exist alongside each other. However, not all legal systems are clearly either monist or dualist. The dichotomy between monism and dualism no longer only concerns the relationship between public international law and municipal law, but also increasingly affects the relationship between public international law and regional law. This contribution discusses the application of the monist and dualist approaches by the South African Constitutional Court in the Glenister case and the European Court of Justice in the Kadi and Hungary cases in order to illustrate the practical application of the dichotomy between monism and dualism in a municipal system and on a regional level.
Public servants' right to strike in Lesotho, Botswana and South Africa – a comparative study
22 January 2015
North West University

Cohen, Tamara;Matee, Lehlohonolo

Restrictions on the rights of public officers to strike are permitted by the Constitutions of Lesotho, Botswana and South Africa, where such limitations are reasonable, necessary and justifiable in a democratic society. The limitation of this right in the context of public servants is endorsed by the ILO in the Freedom of Association Digest of Decisions and Principles which holds that "[t]he right to strike can be restricted or even prohibited in the public service or in essential services in so far as a strike there could cause serious hardship to the national community and provided that these limitations are accompanied by certain compensatory guarantees". Public officers in Lesotho are deprived of the right to join trade unions or to strike, without exception or justification. Furthermore in Lesotho no dispute resolution mechanism exists to effectively facilitate the final resolution of disputes of interest in the public sector. This paper considers whether the limitations imposed on the freedom and right to strike of public officers in Lesotho are in breach of international obligations and are reasonable and justifiable in a free and democratic society committed to the rule of law. In so doing a comparative analysis of the jurisdictions of South Africa and Botswana is undertaken. It concludes that Lesotho is in breach of its obligations as a member state of the ILO and its constitutional commitment to freedom of association and needs to be urgently addressed.
Defending the absurd: the Iconoclast's guide to section 47(1) of the Superior Courts Act 10 of 2013
04 February 2015
North West University

McCreath, Haneen;Koen, Raymond

This contribution was intended as a defence of section 25(1) of the Supreme Court Act 59 of 1959. However, the Supreme Court Act was repealed in August 2013 and replaced by the Superior Courts Act 10 of 2013, and in the process section 25(1) of the former gave way to section 47(1) of the latter. Both sections concern the doctrine of leave to sue judges in South Africa. Both prescribe that any civil litigation against a judge requires the consent of the court out of which such litigation is to be launched. Both apply to civil suits against judges for damage caused by either their judicial or their non-judicial conduct. Although section 25(1) had been one of the more inconspicuous sections of the Supreme Court Act, it was contested on occasion. Both curial and extra-curial challenges to section 25(1) assailed its constitutionality, alleging essentially that its provisions violated the right of access to courts enshrined in section 34 of the Constitution of the Republic of South Africa, 1996 and that such violation did not meet the limitation criteria contained in section 36. It may be anticipated with considerable confidence, given its legal continuity with section 25(1), that any serious assault upon section 47(1) of the Superior Courts Act also will focus upon its relationship to section 34 of the Constitution. This contribution is a pre-emptive defence of section 47(1) of the Superior Courts Act and, by extrapolation, a belated justification of section 25(1) of the Supreme Court Act. An attempt will be made to demonstrate, contrary to conventional wisdom, that section 47(1) does not limit section 34 and passes constitutional muster at the first level of enquiry, thereby obviating the need for advancing to the second level of enquiry contained in section 36 of the Constitution. The jurisprudential crux of section 47(1) of the Superior Courts Act is embedded in the nature of the judicial office and its core value of judicial impartiality. The procedural immunity which the section affords South African judges is a mechanism for sparing them the nuisance of having to deal with frivolous litigation, either as defendant or as adjudicator. Every specious suit against a judge, per definitionem, represents an incursion into judicial impartiality by urging that the court give credence to a claim which does not qualify for curial adjudication. In this regard, the doctrine of leave to sue seeks to ensure that judges do not have to adjudicate claims which resort beyond the compass of their judicial capacity. It is a doctrine which operates to protect and advance the unimpeachable principle of judicial impartiality.
Barriers to advocacy and litigation in the equality courts for persons with disabilities
04 February 2015
North West University

Holness, Willene;Rule, Sarah

The effective implementation of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) and the fulfilment of the South African state's obligations in terms of the Convention on the Rights of Persons with Disabilities (CRPD) are dependent on two fundamental tools, advocacy and litigation. This article discusses the outcome of three cases in the Equality Courts and how these cases promote accessibility and access to justice for persons with disabilities. The authors then consider the impact of CREATE, a KwaZulu-Natal NGO's advocacy initiatives to promote the rights of persons with disabilities and the utilisation of the Equality Court to realise those rights. Participants of ten workshops in KwaZulu-Natal identified three barriers to access to justice in accessing the Equality Courts. Firstly, some Equality Courts are geographically (and financially) inaccessible. Secondly, the negative and insensitive attitudes of front-line workers impact on the ability of persons with disabilities to bring equality claims to and access the services of the Equality Court. These barriers constitute discrimination and flout articles 9 and 13 of the CRPD, which require the provision of support for persons with disabilities to access the justice system and the promotion of accessibility to the physical environment, and the provision to them of transportation, information and other services. Thirdly, cultural norms and fears impede access to courts and the agency of persons with disabilities to bring these claims, for example the requirement that traditional leaders provide "permission" to persons with disabilities to sue and a similar requirement of permission from the in-laws of women with disabilities. The article analyses the three barriers identified as inhibiting advocacy and litigation, and explains the implication of these barriers for the state's obligations in terms of articles 5, 8, 9, 12 and 13 of the CRPD. Recommendations are made on overcoming these barriers.
Reassessing judicial independence and impartiality against the backdrop of judicial appointments in South Africa
04 February 2015
North West University

Malan, Koos

The South African Judicial Service Commission (JSC), considered to be exemplary for its independence, plays a pivotal part in judicial appointments. Yet the Commission has long been marred by tensions that have lately erupted into a full-blown conflict between those who could here be referred to as the transformationists, on the one hand, and the liberals, on the other. The transformationists, who may generally be regarded as falling within the sphere of influence of the ruling elite under the African National Congress (ANC), are bent on pursuing the policy of transformation. Hence they insist that the composition of the bench must reflect the national population profile and on individual judges' pursuing the ruling party's ideological goals. The liberals reject this as a threat to judicial independence and the professional competence of the judiciary. On close analysis the clash is based on incompatible interpretations of judicial independence and impartiality. This article is a critique of these interpretations against the backdrop of an assessment of what these notions can reasonably be expected to achieve. It is argued that the liberals are harbouring unrealistic views about judiciaries, believing them to wield power which may even extend over matters of political significance, powers on a par with or even outweighing those of the political branches. However, on proper analysis it is clear that the judiciary is in fact, firstly, inherently weak and dependent on the support of the political branches; and, secondly, it is integrated into the ruling elite with whom they share the same ideological assumptions without any inclination to oppose them. Hence, the impartiality of the courts, when it comes to politically sensitive issues, is distinctively politically (regime) relative and ideologically conditioned. Ironically the transformationists have bought into the liberals' erroneous belief in the potency of the courts (in the above-mentioned sense) and they fear, without foundation, for the political risks the courts might be posing to the ruling elite. This fear is based on an exaggerated vision of the far-reaching consequences that they ascribe to judicial independence and impartiality, believing it to render the judiciary a formidable political force on a par with the political branches. The transformationists would therefore go to extreme lengths to secure an amenable judiciary. This is exemplified by their rather improper insistence that the best candidates need not be appointed, thus compromising even the (limited) independence and impartiality which courts, on a realistic assessment, should have. In doing this the transformationists show a serious lack of appreciation of the distinctive professional nature of the judiciary, whose independence, impartiality and effectiveness are rooted not in political might but in the exceptional professional competence of the incumbents on the bench, who should be drawn from the best candidates the legal professional can produce.
The different worlds of labour and company law: truth or myth?
04 February 2015
North West University

Botha, Monray Marsellus

Recently the South African company law landscape underwent a dramatic overhaul with the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance. It is clear that companies are no longer accountable just to their shareholders but also to society at large. Leaders should, for example, direct company strategies and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and should thus also manage the business in a sustainable manner. An important question in company law still today is in whose interest the company should be managed. Different stakeholders of importance to companies include shareholders, managers, employees, creditors etcetera. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies, and it encourages the efficient and responsible management of companies. When considering the role of employees in corporations it must be noted that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political changes were evident after South Africa's re-entering the world stage in the 1990s. Changes in socio-economic conditions within a developing country were also evident. These changes had a major influence on the South African labour law dispensation. Like company law, labour law is to a large extent also codified. Like company law, no precise definition of labour law exists. It is clear from the various definitions of labour law that it covers both the individual and collective labour law and that various role-players are involved. Some of these role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties are ultimately what will guide a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed with the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and transformation of the workplace are central issues in South African labour law. This is due to the constitutional changes that have taken place in South Africa, where the protection of human rights and the democratisation of the workplace are advanced. Before the enactment of the LRA, employee participation and voice was a much-debated topic not only locally but also internationally. It is therefore essential when considering employee participation to take due cognisance of both the labour and company law principles that may be pertinent, as well as the need for workers to have a voice in the workplace and for employers to manage their corporations. This article will attempt to indicate how the different functions, theories and models of labour and company law accommodate and promote the interests of employees in corporations and will also attempt to reconcile these differences.
Limiting organisational rights of minority unions: Popcru v Ledwaba 2013 11 BLLR 1137 (LC)
05 February 2015
North West University

Cohen, Tamara

The Labour Relations Act 66 of 1995 unequivocally promotes the policy choice of majoritarianism, in furtherance of orderly collective bargaining and the democratisation of the workplace. The majoritarian model aims to minimise the proliferation of trade unions in a single workplace and to encourage the system of a representative trade union. Section 18(1) of the Labour Relations Act enables majority unions to enter into collective agreements setting thresholds of representivity for the granting of access, stop-order and trade-union leave rights to minority unions. In furtherance of the majoritarian framework, collective agreements concluded between majority unions and employers can be extended to non-parties to the agreement in terms of section 23(1)(d) of the Labour Relations Act provided specified requirements are satisfied. In Police & Prisons Civil Rights Union v Ledwaba 2013 11 BLLR 1137 (LC) (POPCRU) the Labour Court was required to consider if the collective agreements concluded between the employer and the majority union could be relied upon to prohibit the minority union from securing organisational rights. In so doing, the Labour Court had to reconcile the fundamental principle of freedom of association and the right to fair labour practices (to organise and engage in unfettered collective bargaining) within the context of the majoritarian framework. The Labour Court in POPCRU held that the collective agreement concluded with the majority union must have preference over the organisational rights of minority unions, in keeping with the principle of collective bargaining hierarchy and the legislative framework. This case note argues that, while the finding of the labour court in POPCRU is correct on the facts and is in keeping with the principle of majoritarianism, the legislative model may no longer be suitable within the context of the current socio-economic and political landscape. Strike violence, loss of confidence in existing bargaining structures, and the alienation of vulnerable employees from majority unions has resulted in minority unions taking up the cudgels of frustrated and disempowered employees, as witnessed in the Marikana experience. The note suggests that in the light of the changing dynamics of the collective bargaining environment, it may be time to revisit the majoritarian model.
A practical-theological perspective on corruption: towards a solution-based approach in practice
16 February 2015
North West University

Coetzer, W.;Snell, L.E.

This article aims to delineate the basis-theoretical and meta-theoretical perspectives on the phenomenon of corruption. It defines solution-based pastoral markers should the research indeed establish a definitive role for pastoral theology in addressing this serious societal ill. Thus it attempts to scrutinize the dynamic factors associated with the phenomenon of corruption in general and as it pertains to South Africa. It also examines the views of both Scripture and related disciplines on corruption, then compare some of the current solutions proposed in the literature on dealing with it. Furthermore, it determines and practically delineate the role and parameters of practical theology in an attempt to address the issue of corruption. Finally, one of the following hypotheses is accepted: Firstly, Practical Theology has a distinct role to conduct in rooting out corruption within society. Secondly, Practical Theology has no defined role in assisting with the eradication of corruption within society.
Caregivers' experiences of the South African judicial system after the reporting of child sexual abuse
04 May 2015
North West University

Paulsen, Nicole;Wilson, Lizane

Child sexual abuse (CSA) is found to occur in alarming proportions worldwide. In South Africa, children represent almost half of the victims of known sexual abuse, and this is becoming a great concern even being described as silent epidemic. This research study serves as a qualitative exploration of caregivers' experiences of the South African judicial system after CSA has been reported. For the purpose of this study, the researcher used a descriptive qualitative research design so as to thoroughly describe the caregivers' experiences. From the empirical findings and the literature the researcher concluded that there is a general sense that CSA investigations are poorly conducted. The empirical findings indicated that caregivers of child victims of sexual abuse and their children have experienced great frustration when dealing with the judicial system after CSA had been reported. These frustrations were due to the investigation of CSA cases, the court process, and the lack of communication from prosecutors and other professionals in the judicial system. The findings are recommended to be used to inform and raise the awareness of social workers and other role-players working in the field of CSA about caregivers' experiences with the South African judicial system after CSA has been reported.
Conceptualising and managing trade–offs in sustainability assessment
19 May 2015
North West University

Morrison-Saunders, Angus;Pope, Jenny

One of the defining characteristics of sustainability assessment as a form of impact assessment is that it provides a forum for the explicit consideration of the trade-offs that are inherent in complex decision-making processes. Few sustainability assessments have achieved this goal though, and none has considered tradeoffs in a holistic fashion throughout the process. Recent contributions such as the Gibson trade-off rules have significantly progressed thinking in this area by suggesting appropriate acceptability criteria for evaluating substantive trade-offs arising from proposed development, as well as process rules for how evaluations of acceptability should occur. However, there has been negligible uptake of these rules in practice. Overall, we argue that there is inadequate consideration of trade-offs, both process and substantive, throughout the sustainability assessment process, and insufficient considerations of how process decisions and compromises influence substantive outcomes. This paper presents a framework for understanding and managing both process and substantive trade-offswithin each step of a typical sustainability assessment process. The framework draws together previously published literature and offers case studies that illustrate aspects of the practical application of the framework. The framing and design of sustainability assessment are vitally important, as process compromises or trade-offs can have substantive consequences in terms of sustainability outcomes delivered, with the choice of alternatives considered being a particularly significant determinant of substantive outcomes. The demarcation of acceptable from unacceptable impacts is a key aspect of managing trade-offs. Offsets can be considered as a form of trade-off within a category of sustainability that are utilised to enhance preferred alternatives once conditions of impact acceptability have been met. In this way they may enable net gains to be delivered; another imperative for progress to sustainability. Understanding the nature and implications of trade-offs within sustainability assessment is essential to improving practice.
Dietitians in South Africa require more competencies in public health nutrition and management to address the nutritional needs of South Africans
20 May 2015
North West University

Parker, Whadiah;Steyn, Nelia P.;Mchiza, Zandile;Nthangeni, Gladys;Mbhenyane, Xikombiso;Dannhauser, Andre;Moeng, Lynn;Wentzel-Viljoen, Edelweiss

The aim of this study was to determine whether dietitians in South Africa are competent to meet the requirements of working in a health care setting during a compulsory oneyear community service (CS) program immediately after receiving their degree. A national survey was conducted using questionnaires to illicit information from dietitians on their training and competencies. In 2009, data were collected from both community service dietitians (CSDs) participating in community service programs in primary, secondary and tertiary health care centers in all provinces of South Africa, as well as from their provincial managers (nutrition coordinators). Sixteen (100% response) nutrition coordinators and 134 (80% response) dietitians participated in the quantitative survey. The majority of the CSDs reported that, overall, their academic training had prepared them for most aspects of nutrition service delivery. However, some recommended that academic programs include more training on community-based nutrition programs and in delivering optimal services to under-resourced communities as they believed that their competencies in these two areas were weakest. Furthermore, many CSDs were required to establish dietetics departments where none had previously existed; consequently, their capacity in management and administration needed improvement. In conclusion, academic training institutions should align their programs to the transformation of the health sector in South Africa by ensuring that dietitians are empowered to provide optimal public health nutrition services in under-resourced communities.
The formation of a conservative Catholic Intellectual: Douglas Francis Jerrold as a disciple of Hilaire Belloc
03 June 2015
North West University

Hale, Frederick

That the highly prolific and versatileAnglo-French littérateur, historian, editor, and commentator Hilaire Belloc (1870–1953), like his friend and confrère Gilbert Keith Chesterton, made a profound impact on many Englishmen of conservative bent, especially intellectually inclined fellow Catholics, with regard to political, cultural, and religious issues early in the twentieth century, is widely acknowledged, but the way in which he did so has rarely been discussed in detail in published scholarly works.1 The assessment of the eminent historian and theologian Adrian Hastings is representative. In an essay titled ‘Some reflexions on the English Catholicism of the late 1930s’, he described a religio-cultural scene distinguished more by literary accomplishments than by theology or the pure vita academica in general: ‘It was a world, moreover, which had emerged, not from the discipleship of Newman or Acton or evenVon Hügel, but rather from the swelling circle of Belloc and Chesterton – and Belloc far more than Chesterton, perhaps because Belloc had been a Roman Catholic all the time and his spirit harmonised a great deal more readily with that dominant within the Church of this period.’With regard to the specific content of Belloc’s influence on a generation, Hastings noted that although his Catholic identity and eagerness to serve as an apologist permeated most of what he put to paper, he ignored almost completely the New Testament and theology as such. ‘The post-Bellocian Catholicism of the 1930s was moulded very strongly in this image,’ Hastings generalised.2 The pivotal question, which has never been adequately answered, is how this occurred. The authors of general surveys of twentieth-century English literary history have not evinced a particular interest in the question. Little about Belloc’s influence can be gleaned from works like Adam Schwartz’s The Third Spring: G.K. Chesterton, Graham, Greene, Christopher Dawson, and David Jones.3 In this article I shall take steps towards filling this lacuna by exploring pivotal dimensions of Belloc’s ideational influence on one of his most productive Catholic disciples. Douglas Francis Jerrold (1893–1964) was an increasingly prominent man of letters in London from the 1920s until the 1950s. He wore several hats. Jerrold began his career in publishing on the staff of the Ernest Benn firm in 1923, and from 1929 until 1959 he served sequentially as director and chairman of Eyre and Spottiswoode. Jerrold also edited The English Review from 1930 until 1936 and The New English Review from 1945 until 1950; in addition, he contributed a plethora of articles to these periodicals. He was also a columnist in the weekly Catholic press. His two novels, The Truth about Quex and Storm over Europe, were published in 1927 and 1930, respectively, and a dramatisation of the latter was staged in theWest End in 1936. As a prolific amateur historian Jerrold also wrote several volumes of English and general European history.
A possible solution for corruption in South Africa with the church as initiator: a practical theological approach
04 June 2015
North West University

Du Plessis, Amanda L.;Breed, Gert

According to Transparency International, Africa is the most corrupt region in the world. In South Africa, there is an annual ’loss’ of about R30 billion as a result of bribery and corruption. It would appear that it is exactly the poor and the vulnerable who suffer most under the scourge of corruption. The purpose of this research was to investigate the effect of corruption on victim(s) and to evaluate it in an effort to formulate solutions as to how such individuals can be guided and supported in the suffering and hardship that they endure and that specifically emanate from corruption. In the research, an effort was made to move away from the trend of the fragmenting of aid and to present guidelines or suggestions that can lead to a global solution, where multi-disciplinary involvement can be facilitated. The researchers agree that the church can play a key role in this, and the solution was sought in the principles expounded in 1 Corinthians 12. The research method known as action research was investigated as a workable method to be used by the multi-disciplinary aid team in their struggle against corruption. In the final instance, the principles used by Touching Africa in their work were investigated so that these could also be used in the quest for a solution.
Critical challenges of the South African school system
09 July 2015
North West University

Mouton, Nelda;Louw, G.P.;Strydom, G

The emphasis in the new curriculum after 1996 in South Africa was placed on the transition from the traditional aims and objectives approach to Outcomes-based education (OBE) and Curriculum 2005. This paradigm shift was interpreted as a prerequisite for achievement of the vision of an internationally competitive country. When analysing the school system in South Africa it became clear that the education system was flawed, with poorly performing teachers, poor work ethics, lack of community and parental support, poor control by education authorities, poor support for teachers and very low levels of accountability. These factors further spilled over into the morale of learners and could be seen in the lack of discipline, brutal violence in schools, low moral values, truancy, absenteeism, late coming and high dropout rates from Grade 1 to Grade 12 and very poor performance in essential areas such as Mathematics and Literacy. Citizens in historically disadvantaged areas tend to become victims of poverty, gangs and drug abuse. These factors further blend with the evil of politics in South African schools which are furthermore plagued by various forms of corruption and socio-economic challenges. Eighteen years after the end of the apartheid dispensation, apartheid is still blamed by many for any real or imagined ills in society, but the reality is that there is no political will to enforce the law or to meet public expectations of accountability, efficiency and delivery. In the light hereof, recommendations are proposed that will address these challenges. The critical message of this article will convey that the fact of the matter is that learner enrolment is not the same as attendance and attendance does not imply learning. Therefore, teaching in South Africa must become a profession of preference and pride as opposed to the present very lackadaisical attitude.
Economic justice and prophetic discourse in the South African context - towards a dialogical mode of discourse
16 September 2015
North West University

Verhoef, Anné H.;Rathbone, Mark

The prophetic discourse about economic justice in South Africa has been mainly influenced by Black theology, Latin American Liberation theology and African theology. In the case of influences from the Americas, economics justice is a salient dimension, with Marxism as a main critical tool of society and mode of discourse. This prophetic mode of discourse limits dialogue and economic transformation because it is an exclusive mode of discourse. We argue that a dialogical discourse, informed by the ideas of justice imbedded in economic theories (in example Adam Smith, John M. Keynes and John Rawls) and their implications for contemporary society, is required. The document 'The Oikos Journey' reflects the priority of economic justice in contemporary South African society with a more inclusive and holistic approach. Although this document is deeply indebted to the propethic discourse, it contains exemplary motives towards a future dialogical mode of discourse.
The role of remorse in sentencing
19 November 2015
North West University

Du Toit, Pieter

It has become an established feature of the South African sentencing practice to consider the level of remorse displayed by the accused (S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) par [115]). Genuine contrition or remorse is generally regarded as a mitigating factor whilst the absence thereof is considered to be an aggravating factor. Our courts link the presence of remorse with the prospect of the rehabilitation of the offender(Terblanche "Sentencing" 2010 Annual Survey of South African Law 1279 1287-1288; S v Ntuli 1978 (1) SA 523 (A) 528B-C; S v PN 2010 (2) SACR 187 (ECG); S v De Klerk 2010 (2) SACR 40 (KZP) par [28]; S v Langa 2010 (2) SACR 289 (KZP) par [36]; S v Onose 2012 JDR 1074 (ECG) par [9]; and S v Keyser 2012 (2) SACR 437 (SCA) par [29]). In S v Seegers (1970 (2) SA 506 (A) 512G-H) Rumpff JA held that remorse, as an indication that the offence will not be committed again, is an important consideration, in suitable cases, when the deterrent effect of a sentence on the accused is considered. This note considers the meaning of "remorse" in the eyes of our courts, the approach of South African courts (in particular the Supreme Court of Appeal) to the role of remorse in sentencing, as well as the question whether the presence or absence of remorse can truly be determined by a court.
The transformative potential of the constitutional environmental right overlooked in Grootboom
19 November 2015
North West University

Fuo, Oliver Njuh

It is axiomatic that Grootboom (Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) hereinafter "Grootboom") remains the hallmark of the Constitutional Courtâ€™s success in terms of its transformative socio-economic rights jurisprudence. In this regard, De Vos has argued that lawyers and legal academics who wish to pursue the transformative possibilities of the Bill of Rights may find much to assist them in the Grootboom case. One of the reasons for De Vosâ€™s recommendation is that the Court acknowledged the transformative nature of the Constitution in this Case and strongly asserted the interrelated, interdependent and mutually reinforcing nature of the rights in the Bill of Rights in achieving the transformative objectives of the Constitution. The purpose of this article is to reflect on the court's transformative jurisprudence in Grootboom and to argue that, although the court strongly asserted the interrelated and interdependent nature of the variety of rights in Bill of Rights in fostering the transformative vision of the Constitution, it failed to highlight the centrality of the section 24 environmental right in fostering that vision. This article argues that the realization of elements of the section 24 environmental right are indispensible to the realization of rights that are generally perceived as having transformative potentials - rights entrenched in sections 26(1) and 27(1) of the Constitution. Drawing from a variety of sources, this article demonstrates the intersection between these rights and argues that the fulfilment of the section 24 environmental right can also contribute to the transformative vision of the Constitution.
The AU model law on universal jurisdiction: an African response to western prosecutions based on the universality principle
06 January 2016
North West University

Dube, Angelo

The African continent has been consistent in placing its concerns regarding the manner in which international criminal justice is administered on the international platform. For the past decade, the continent has minced no words about its misgivings concerning the use of universal jurisdiction (UJ) by both foreign States and the International Criminal Court (ICC). The African Union (AU) has been very supportive of UJ and its utility in fighting impunity and affording justice to victims of the core crimes of international law, namely, genocide, war crimes and crimes against humanity. Often referred to as core crimes, these are regarded as customary law crimes which are an affront to entire humankind. These crimes were also codified by the Rome Statute of the ICC. However, the political and selective use of the principle of universality by foreign States to prosecute perpetrators of these crimes was seen as causing conflicts and undermining peace efforts, reconciliation and regional stability. As a result the African continent voiced its concerns at various public platforms, including under the auspices of the UN and it therefore called for reforms. This prompted the AU to produce its own model law on UJ, which African States could adapt to their own socio-political circumstances and legal context. The debates that ensued around UJ on the African continent offered African States a chance to contribute to the development of international law, especially on the rules concerning UJ. This paper analyses the interaction amongst African states that eventually led to the development of UJ regulations within their individual legal systems, and tries to determine if there is indeed an African signature in those legal rules.
No longer in suspense: clarifying the human rights jurisdiction of the SADC tribunal
12 January 2016
North West University

Phooko, Moses R

The Southern African Development Community Tribunal's (SADC Tribunal) decision in the matter of Mike Campbell (Pvt) Ltd v Republic of Zimbabwe 2008 SADCT 2 (28 November 2008) demonstrated its ability to utilise the principles contained in the Treaty of the Southern African Development Community when it ruled that it had the power and competency to adjudicate over a human rights case. The aforesaid decision was hailed by many scholars as a progressive judgment in the SADC region that would promote the rule of law and ensure that member states respected their treaty obligations in their own territories. Unfortunately, the same judgment resulted in the suspension of the SADC Tribunal in 2010 because it had purportedly acted beyond its mandate when it adjudicated over a case concerning a human rights dispute. This article investigates whether the SADC Tribunal had jurisdiction to deal with cases involving allegations of human rights violations. In addressing this question, this article will discuss the powers (implied and tacit) of international organisations as understood within international law. In addition, the study will ascertain how the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia have dealt with cases that involved disputes concerning a tribunal or an international organisation that was said to have acted beyond its mandate. The study will also make reference to the East African Court of Justice and the Economic Community of West African States Court of Justice as they have also dealt with implied powers when they were confronted with cases concerning human rights abuses. Certain decisions of the SADC Summit of Heads of States or Government (Summit) and the Council of Ministers whose roles include the control of functions and/or overseeing the functioning of the SADC will also be referred to in this study.
Affiliation to a new customary law in post-apartheid South Africa
12 January 2016
North West University

Nwauche, Evance S

This article examines the possibility that in the post-apartheid South African legal system South African citizens can voluntarily change their customary law and affiliate to a new one in the true spirit of citizenship. The article argues that such a change would affirm the dignity of all South Africans and would significantly enhance the vision of a truly non-racial society envisaged by the Constitution and contribute to social justice.
Are distinct societal spheres a threat to human freedom? The fruitfulness of the principle of sphere sovereignty
31 March 2016
North West University

Strauss, D.F.M.

An appreciation of the role of the individual within human society traditionally faced two extreme positions which are already found in ancient Greek philosophy. An early 5th century thinker, Callicles, acknowledged being individual but ultimately admires the tyrant who (collectively) subjects the weak to its power. Although the sophist, Protagoras, claimed that the individual is its own measure, he still contemplated a state which does not acknowledge any material boundaries for its power. The life-encompassing educational ideal (paideia) of Greek culture, culminating in the polis (the city-state), laid the foundation for the views of Augustine and Thomas Aquinas. Both these medieval thinkers did not escape the totalitarian implications of the Greek idea of the polis. Thomas Aquinas merely superimposed the church on the state, which is supposed to transcend the transient and incomplete happiness promised by the state, while directed at carrying a person to eternal bliss. Marsilius of Padua articulated a view of society as being constituted by individuals, anticipating the later conceptions of Rousseau. A radical alternative to both atomistic (individualistic) and holistic (universalistic) views is developed by Johannes Althusius. He was the first thinker who understood the whole-parts relation properly by acknowledging the proper laws (legespropriae) of each social entity and in doing so anticipated the principle of sphere sovereignty. Attention is given to the conceptions of Friedrich Julius Stahl, which are intermediate between the Aristotelian-Thomistic position and the reformational tradition. According to Kuyper the phrase sphere sovereignty was introduced by Van Prinsterer, but Veenhof declared that he could not find the place where he used this phrase. In spite of instances where Kuyper clearly understood the "next-to-each-other" implications of sphere sovereignty, he still entertained Aristotle's emphasis on an organic (teleological) development within society which was continued in the thought of Thomas Aquinas and Romanticism. This particularly manifested itself in Kuyper's view of the state as an ethical organism. It was Dooyeweerd who explored the meaning of the principle of sphere sovereignty in its full cosmic scope, relevant for an understanding of cosmic time, of the modal aspects of reality and for the different kinds of entities found within creation. No single sphere-sovereign societal entity should be reduced to a mere part of an encompassing whole, to be subordinate to such a whole. The distinct spheres of societal entities are channels for human freedom within all of them and could therefore not be seen as a threat to this freedom. However, freedom, expressing itself within collective, communal or coordinational relationships, may proceed either in a norm-conformative way or in an antinormative way
Sphere sovereignty, solidarity and subsidiarity
31 March 2016
North West University

Strauss, D.F.M.

Reflecting on the nature of human society and the individual's place in it resulted into focusing on the principles of sphere sovereignty and subsidiarity. The dominating patterns of thinking in the legacy of the West are individualism versus universalism, sometimes also known as the opposition between atomism and holism. After reflecting on some elements of solidarity it is shown that the traditional Roman Catholic account of society adhered to a universalistic perspective. It was the Calvinistic legal scholar, Johannes Althusius who first articulated an alternative understanding designated as sphere sovereignty. The principle of subsidiarity operates with the idea of the relative autonomy of the various "subordinate parts" of society, understood as parts of the encompassing nature of the state (while the latter is still superseded by the church as supra-natural institute of grace). Dooyeweerd criticised the problematic employment of the whole-parts relation in traditional Roman Catholic views of human society. A more nuanced understanding of the nature of individualism and universalism is developed. It is argued that the only hope to transcend the problems entailed in atomistic and holistic views is to expand the scope of application of the principle of sphere sovereignty also to the dimension of modal aspects. After all, the struggle for obtaining a basic denominator for the cosmic diversity is played out within this domain of theorizing. Theoretical ismic orientations are articulated within this context. Once the proper meaning of discreteness and continuity (entailing the whole-parts relation) is understood,their analogical appearance within the social aspect enables a more nuanced characterization of the extremes of individualism and universalism, supported by a systematic classification of ways of human societal interaction. Attention is also paid to the distinction between typical and atypical societal responsibilities as well as the problem of solidarity and more recent developments towards a recognition of the importance of human rights
Ubuntugogy for the 21st century
29 April 2016
North West University

Van der Walt, Johannes Lodewicus

The state of community life in general, and of education in particular, in Africa south of the Sahara (henceforth also referred to as the sub-continent) seems to indicate that Africans have failed somewhat in their efforts to provide for themselves lives of good quality. Malala's (1) complaint that the African century has failed to dawn can be ascribed inter alia to the fact that sub-continental Africans seem not to have mastered the art of peaceful coexistence. (2) Life in this part of the world has for decades now been characterized by wars, violence, soaring crime rates and delinquent behavior, also in the more subtle forms of sexism, xenophobia, selfishness, collapse of family life, a growing gap between the rich and the poor, corruption and racism. (3) Such conditions are detrimental to the quality of personal and communal life. (4) Similar conditions prevail in schools. In many areas, life in schools has been characterized by violence, destruction of property, laziness, a lack of punctuality, weak performance, learner and teacher delinquency and self-centredness--in brief, by a general lack of moral literacy. (5) This portrayal of life on the sub-continent does not sit well with the precepts of the traditional African philosophy of life known as Ubuntu (in the Nguni languages; Botho in the Sotho languages, Hunhu in Shona, Bisoite in Lingala-Baluba, Ujamaa in Kiswahili, Harambee in Kenya). (6) According to Ubuntu, a person is who s/he is only because of the existence of others and because of his/her coexistence with them. If this is indeed the world-view according to which the people of the sub-continent live, why do we then find the inhabitants of the Sudan, Zimbabwe, Kenya, South Africa, Liberia, the Democratic Republic of the Congo, the Ivory Coast, Sierra Leone, Western Sahara, Ethiopia, Eritrea, Somalia and Guinea-Bissau (to mention only a few of the hotspots) to seemingly have lost sight of this sentiment? Why has Ubuntu failed to inspire the people of the sub-continent towards peaceful coexistence and democracy? Failure to live according to the precepts of Ubuntu constitutes a threat to the freedom of the people. (7) Similar perpetrations also occur in other parts of the world. They are a function of how the respective life-views impact on people, their morality and their behavior. Unfortunately, we have to confine our attention to the situation in Africa. It is not the purpose of this article to harp on the negative conditions prevailing on the sub-continent or on the perceived failure of its inhabitants to live according to the tenets of Ubuntu. Neither is its purpose to once again proclaim the already well-known virtues of Ubuntu as a potential contributor to enhanced quality of life. Instead, the purpose of this paper is to consider the possibility of Ubuntugogy being a more suitable approach for sub-Saharan Africa than typical Western-style colonial education. While having borrowed the term 'Ubuntugogy' from Bangura, (8) I shall follow his lead only partially. I shall argue that two sets of changes have to be made to render Ubuntugogy more amenable to the demands of the modem, globalized, urbanized and industrialized circumstances on the African subcontinent. Firstly, Ubuntu, that is the life-view that forms the sub-stratum of Ubuntugogy, has to be updated, modernized or reconstructed to put it more in line with the demands of 21st century life. Secondly, while the notion of Ubuntugogy in itself remains attractive as a return to the classic past of Africa, it also needs filling with more appropriate content. It needs a global format to be able to address the needs of modern sub-continental Africans. (9) Because of their traditional tribal limitations, a simple return to Ubuntu and Ubuntugogy will not pass muster in modern African societies. Pedagogical input from the northern hemisphere has to be included in the new approach. Ubuntu and Ubuntugogy also need filling with new moral content. …
Court supervised institutional transformation in South Africa
13 May 2016
North West University

Erasmus, Deon;Hornigold, Angus Lloyd

The traditional adversarial model of litigation in South Africa operates on the basis that two or more parties approach the court, each with its own desired outcome. The court is then obliged to decide in favour of one of the parties. A different model of litigation is emerging in South African law. This model involves actions against public institutions that are failing to comply with their constitutional mandate. In this type of litigation there is seldom a dispute regarding the eventual outcome that is desired. Both the applicant and the state, in its capacity of the respondent, have a broad consensus about the manner in which the institution should operate or be transformed. There is accordingly agreement regarding the eventual outcome and the shortcomings that should be addressed. The primary issue relates to the details of the implementation of the transformation of the institution in question, in order that the constitutional mandate of the institution in question will be met. An example of this form of litigation can be seen in litigation concerning the conditions in which prisoners are detained in South African prisons. The constitutional mandate for the imprisonment of offenders is contained in the Correctional Services Act. Ongoing human rights violations often take place in prisons. These include staff shortages, shortages of medical staff and facilities, prison overcrowding, inadequate staff development, the prevalence of HIV/AIDS, infrastructure defects and maintenance problems, gangsterism, requests for prisoner transfers and problems associated therewith, the ineffectiveness of parole boards, staff development needs that are not addressed, an excessive focus on security, lack of rehabilitation and vocational training programmes and assaults of prisoners. The courts have on occasion issued a structured interdict as an appropriate remedy. However, problems arise when violations are widespread and no single order can cause the problems to be properly addressed or where the executive fails to implement or even ignores court orders. Thus, the wrong which is complained of is not a wrong done to a particular person, but the constitutional wrong is the manner in which the institution executes its mandate vis-a-vis the vulnerable beneficiaries of the public service in question. The transformation thereof is designed to bring the institution within its constitutional duties and bounds. There is usually no dispute about the failures of the organisation and court orders are often taken by consent. The question which arises is how it can be ensured that a public institution such as a school, welfare department, hospital for the mentally disabled, home for the elderly or prison, which is designed to serve or accommodate the vulnerable may be brought into conformity with its constitutional mandate where there are continual and persistent failures to do so. Even where court orders are obtained, there are often significant problems with the implementation thereof. In the case of prisons, a possible solution, which has been employed in the United States of America and which may be adapted for use in the South African context, is that of a post-trial special master or court appointed supervisor, who supervises the transformation of the public institution until such time as the non-compliance has been appropriately resolved. In this article the role and functions of the American special master will be set out. The feasibility of importing such an office into the South African context will be evaluated.
Protecting the foundation and magnificent edifice of the legal profession: reflections on Thukwane v Law Society of the Northern Provinces 2014 5 SA 513 (GP) and Mtshabe v Law Society of the Cape of Good Hope 2014 5 SA 376 (ECM)
18 May 2016
North West University

Maloka, Tumo Charles

The High Court decisions in Thukwane v Law Society of the Northern Provinces 2014 5 SA 513 (GP) and Mtshabe v Law Society of the Cape of Good Hope 2014 5 SA 376 (ECM) dealing with the question whether a parolee could be considered a "fit and proper person" to be admitted and readmitted to the roll of attorneys raise important and interrelated issues demanding definitive and systematic consideration. This contribution seeks to isolate some of the vexed questions concerning the novel issue of whether a person previously convicted of a criminal offence and who is still serving a sentence under a parole could be admitted and/or readmitted to the roll of legal practitioners. Thukwane and Mtshabe demonstrate that the admission or readmission must not be damaging to the integrity and standing of the profession, the judicial system, or the administration of justice, or be contrary to the public interest. It is trite that public confidence in the legal profession is more important than the fortunes of any one practitioner or prospective practitioner.
When the judiciary flouts separation of powers: attenuating the credibility of the national prosecuting authority
18 May 2016
North West University

Maqutu, Lindiwe

The stature of the National Prosecuting Authority (NPA) has been subverted through highly publicised political interference by the executive. Beginning with the marathon legal entanglements of the current South African president the decisions of sitting National Directors of Public Prosecutions (NDPP) on high-profile criminal matters, particularly those involving prominent members of the political leadership, have been marred with controversy. Undoubtedly unwarranted intrusion into the prosecutorial domain, at the behest of key political protagonists, has blighted the repute of the NPA. The judiciary too has played a pivotal, if lesser role, in eroding the sagging reputation of the NPA. This article charts the narrative of judicial influence on the diminishing credibility of the NPA, using selected cases from the recent past. It shows that key political events such as the Zuma corruption saga have placed the judiciary together with political forces at centre stage where the focus is their culpability for exceeding their lawful mandate. Finding itself vulnerable as a result of its being the target of rhetoric casting doubt on its integrity and threatening its independence, the judiciary (through a crucial judgment) entered the political fray and positioned itself behind what it judged to be the pervasive political sentiment of the day. The article examines whether, subsequently, in an effort to curb undue political influence of the executive on the NPA, the Constitutional Court in Democratic Alliance v President of South Africa interpreted and extended judicial authority in a manner that violated the doctrine of separation of powers. Furthermore, the article argues that in Freedom Under Law v National Director of Public Prosecutions the court again misconstrued its powers by unduly interfering with the discretionary decision-making powers of the NDPP. These cases illustrate that, once they have been issued, the far reaching consequences of judicial decisions may not be erased by corrections during the appellate process. Far from being an impartial adjudicator, the judiciary has played a significant role in attenuating the stature of the NPA.
The viability and constitutionality of the South African national register for sex offenders: a comparative study
20 May 2016
North West University

Mollema, Nina

Section 42 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 established a National Register for Sex Offenders where the particulars of all offenders guilty of sexual transgressions against children or mentally-ill persons have to be included, regardless of whether they were found guilty before or after the coming into force of the Act. Although the purpose of the Act clearly is to protect and promote the constitutional rights of victims and society in general, it is apparent that the register may infringe on the rights of sexual offenders. The inclusion of the personal details of sex offenders in a register without their permission and sometimes without their knowledge amounts to a violation amongst other rights of the right to privacy stipulated in section 14 of the Constitution of the Republic of South Africa, 1996. In this article the constitutionality of the South African register will be examined by means of a comparative study with the United States and United Kingdom, where similar registers are already in place. This legislative assessment will also provide answers as to the viability of the South African register. It is argued that South Africa's sex offender registration system may not fulfil the function it was designed for because of misconceptions as well as serious implementation and administrative issues; and that alternative solutions may be more suitable in this regard.
Pan–African parliament and civil society: towards representing the voices of the people
29 June 2016
North West University

Nyandoro, Mark;Ababio, Ernest P.

The Pan-African Parliament (PAP) plays a major role in the democratisation process and the harmonisation of relations with civil society organisations (CSOs) for socio-economic and political development to be realised in Africa. It has a responsibility, in line with its objectives, to work towards incorporating and representing the voices of the people, which includes the promotion of human rights and democratic institutions. The PAP forum offers a congenial and functional platform to close the gap between governments and the people. People-participation at parliamentary and state levels is an essential ingredient for cooperation and potent governance. T he article analyses critically the operational performance of the PAP and the execution of its mandate as far as civil society engagement is concerned. This critical analysis is important, because the findings of the study could contribute to democracy and the rule of law in Africa. From its inception, PAP envisaged to safeguard human rights and governance structures based on lasting synergies with civic institutions. However, a lack of synchronisation of activities has deleteriously impacted on the practise of good governance in Africa. The apparent failure by PAP to promote an articulate civil society presents the African continent with many democracy-related challenges. Utilising secondary literature, including CSO publications, the article examines PAP’s achievements and evaluates insights into the PAP–CSOs relationship.
Prevention of sexual child abuse: the need for an ecological, risk-factor approach
29 June 2016
North West University

Fouché, Ansie

In South Africa, the new Children’s Act 38 of 2005 was promulgated, inter alia, to reduce statutory intervention in the lives of South African families and make family members and communities mainly responsible for the protection of their children. However, despite impressive legislation, action plans, and school-based prevention programmes, a significant increase of 36.1 percent in reported sexual offences against children between 2008/2009 and 2009/2010 was announced by the South African Police Service. This literature review, firstly, explores the scope and impact of sexual child abuse and, thereafter, highlights international and national response to the plight of prevention. Following this, an ecological framework is applied, where prevention requires an understanding of the factors that increase the risk of childhood sexual abuse. Lastly, intervention research is proposed for the way forward
Recent developments in sexual offences against children – a constitutional perspective
27 July 2016
North West University

Stevens, Philip

This contribution deals with recent developments in sexual offences against children with reference to sections in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. This Act is addressed against the backdrop of the Constitutional Court judgments in Teddybear Clinic for Abused Children v Minister of Justice and Constitutional Development and J v National Director of Public Prosecutions. These two judgments had a profound impact on the shaping of the newly formulated sexual offences in line with constitutional principles, ultimately culminating in the enactment and commencement of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 5 of 2015. The approach by the Constitutional Court in both of these judgments is discussed and assessed. An analysis is provided of the Amendment Act with specific reference to its impact on sexual offences against children.
The commission as a party before the court – reflections on the complementarity arrangement
27 July 2016
North West University

Rudman, Annika

The African Commission on Human and Peoples' Rights has worked as the continent's watchdog, under the ACHPR, for almost 30 years. Much has changed since the time of its inception. More institutions, set to ensure the implementation of the ACHPR, have been added. As the African Court on Human and Peoples' Rights became operational, a two-tiered human rights system was created. This article explores the inter-relationship between the ACHPR, the Protocol Establishing the African Court on Human and Peoples’ Rights and the Procedural Rules of these two institutions within the specific context of the African Commission's mandate to refer communications to the African Court. The aim is to offer a purposeful interpretation of the Procedural Rules governing referrals, guided by the understanding of the principle of complementarity in the preparatory works. The author argues that an appropriate interpretation of complementarity, within the context of referrals, becomes vital in alleviating one of the long-term plagues of the African, protective, human rights system, namely the lack of resources and human capital. It is suggested that the African Commission and the African Court can only be effective if they take proper cognisance of the principle of complementarity, in referring and receiving communications.

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