The author expressed some ideas and comments on the processes of constitutional amendment, constitution-making and other important constitutional proposals which have appeared since the release of the Buthelezi Commission Report, namely the reports of the President's Council. The author acknowledged the positive aspects of the President's Councils reports, as well as their weaknesses from a constitutional law perspective. The President's Council and the government were trying to achieve a new constitutional dispensation for the whole country. It was necessary, however, to realise the basic nature of a constitution and the requirements for its making, and to discuss issues surrounding the President's Council and also the report of the Buthelezi Commission.
Significant contributions were made to the constitutional debate in South Africa with the publication of two sets of constitutional recommendations during the first half of 1982, those of the President's Council and the Buthelezi Commission. Several irreconcilable points of difference between the two reports are observed as the reports can be seen as the outcome of different trends in South Africa's constitutional development.
The Buthelezi Commission Report suggests that a new political order might be established for the Natal/KwaZulu region on the basis of a new constitutional arrangement. The Report suggests that certain constitutional checks and balances of power be introduced, and among those suggested are a bill of rights and a "totally independent judiciary" under which "all legislation would be testable in courts." Although the Report draws attention but briefly to the subject of judicial review of legislation, discussion of this feature of it has relevance beyond the borders of Natal/KwaZulu and will hopefully stimulate interest in this important dimension of constitutionalism. In this article the author's remarks on the subject go beyond the geographical and political parameters of the Report, in support of those concerned with the future of greater Southern Africa.
The author expressed the optimistic view that 1982 has brought the constitutional dawn for South Africa. He was hoping to find the signs of this dawn in the Buthelezi Report and in that of the President's Council. This optimism was based on the fact that both these reports suggested that the country's next constitutional move would have to be in the nature of a novus actus interviens rather than a new attempt at tinkering and improvisation as in the past with the drafting of previous constitutions for South Africa.
After giving an outline of what African socialism stands for and what it rejects, the author gives a short explanation of the meaning of Rule of Law before considering the questions of whether and how the principles of African legality and the Rule of Law are reconcilable.
In the then Union of South Africa in the early 1940s a black man was killed in a motor accident caused by the employee of a white person driving negligently in circumstances that would in the ordinary course of events have rendered the employer liable. The widow of the deceased thereupon sued the white employer for the damages she had suffered through her loss of support. Her action was dismissed by the Witwatersrand Local Division of the Supreme Court of South Africa, which found that as the plaintiff's marriage to the deceased had been concluded under the customary law of a Basotho tribe which practised poligamy, the union was not recognised in South African law as a valid marriage, and the deceased had consequently not been under a legal duty to support the plaintiff. A situation therefore arose which vividly highlights a most unfortunate consequence of the so-called dual system in the administration of justice applying to blacks in South Africa.
The predominant concern of developing countries is with their own economic development. While ideology plays an important role in their relations with developed countries and foreign private enterprises, the real issues in contention are exports, the removal of trade barriers, the stabilisation of raw material prices and the rapid acquisition and use of technology. Although the discussion of these issues with developed countries has long been characterised by tension, acrimony and dogmatism, recent events have opened up and sustained a pragmatic dialogue between the developed North and the developing South. In this North-South dialogue, the third world has advocated a new international economic order. Although the institutional developments which characterise the existing international economic order are relatively unaffected by the legal framework this new order is thought to imply, their functioning and objectives have been directly challenged. This paper considers specific aspects of this legal framework as advocated by the third world in the North-South dialogue.
Despite the problems raised in the article, the author was of the opinion that the Foreign States Immunities Act of 1981 would work. Most of the instances in which the question of immunity would arise were adequately covered in the act. However, it was regrettable that a more uniformly objective approach was not followed during the drafting of the Act.
The case of South African Railways and Harbours v Chairman, Bophuthatswana Central Road Transportation Board and Another 1982 3 SA 24 (B) is an interesting example of one of the many intricate legal problems which can result from the policy of separate development. In this case the Board had granted certain motor carrier certificates to a company known as Rent-a-Bakkie Holdings (Pty) Ltd. The applicant applied to court in terms of Rule 53 to have a decision of the Board set aside on review. The difficulty facing the applicant was that Rent-a-Bakkie clearly had sufficient interest in the matter to be joined as respondents and the company was a peregrinus in Bophuthatswana. It appeared moreover that it had no attachable assets within the area of jurisdiction of the court and was unwilling to consent to the jurisdiction of the court. The ultimate question in this case is, was the company subject to the jurisdiction of the court?
In this contribution the current legal developments in Bophuthatswana, Botswana, Lesotho, South Africa, South West Africa/Namibia, Swaziland, Transkei, Zambia and Zimbabwe with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.