South Africa has inherited the British adversarial system together with the rules and traditions of the English legal profession. Because the adversarial system is party-centred, lawyers for both the state and defence play a dominant role in the pursuit of procedural justice. However, as legal representation is available only at a price, it has remained the privilege of the few. In South Africa the majority of accused are indigent and consequently face a trial within the adversarial system without a defence lawyer. It is submitted that it is useful to consider the American experience: what has been attained over the years in respect of the "ordinary" American defendant is the goal for all accused in South Africa. On the other hand, as regards legal representation, the position of the American Indian defendant in a criminal trial in the tribal court is strikingly similar to that of his indigent South African counterpart.
Despite its many limitations, the adoption of the African Charter is a commendable step in the direction of greater involvement and commitment by the 0 A U in the field of human rights. The present African Charter is innovative in many ways. The impact of its provisions, however, is limited by the widespread use of claw back clauses. This tends to give the states too much autonomy which may allow them to violate human rights with impunity. This may have been made with the intention of attracting many African states to ratify the African Charter, which they may otherwise have been reluctant to do. The African Commission which is envisaged by the charter will be conciliatory rather than an adjudicatory body. The success of this venture is not yet certain. The very fact, however, that African states have adopted this strategy is indicative of the fact that they are not unconcerned about the violation of human rights. The African Charter is important because it is an African initiative.
On 21 March 1990 the Republic of Namibia became an independent state. The High Court of Namibia decided in the case, Mwandingi v Minister of Defence, Namibia that the new state succeeded to South African delictual liability because it accepted such succession. As international and South African law normally would not provide for succession to delictual liability , the decision raised the question of its effect not only in Namibian and South African law, but also in international law. In Namibian law the effect would be a juridical transmission of liability from South Africa to Namibia but it was doubtful whether the same effect would be achieved in South African law. Although the decision purports to give the succession an effect erga omnes in international law, this would not necessarily be accepted by third states.
In this article he author first states what he considers the principal choice-of-Iaw problem presented by inter-territorial marriages in the TBVCSA and national states context in South Africa. He then gives a brief comparative analysis of the conflict rule applicable for choosing the appropriate legal system for testing whether the legal relationship between a man and a woman amounts to a marriage; lastly he suggests that courts will not achieve socially desirable results if they follow the South African rule in its then context in the new South Africa, and that another, and more flexible, approach ought to be adopted.
Several case studies are used in this article to demonstrate what cases and in what circumstances people in the Kingdom of Swaziland would prefer to use "western" courts. However, as the "cases" showed, the Swaziland situation does not seem to fall neatly into current theory. Perhaps in modernising societies with polyglot ethnic groups into which the vast majority of third world countries fall, the explanations would be sufficient. In most cases these societies have not yet had time to build up stable political, social, economic and legal systems. In a monolithic society or country like Swaziland where commonly inherited traditions run deep, the legitimacy of the leadership is by and large assured, and the people have an alternative to western style courts. The alternative has proved very popular. Observers of the operation of "western" courts in third world countries have stressed among other weaknesses, its delays and uncertainties, expense, and the unfamiliarity of its procedures.
The main aim of this article, is to review section 3(1) of the Security Clearance Act 40 of 1985 of Bophuthatswana, its objective application, and its constitution. The thrust of the article will be based on the expression "if he is on reasonable grounds satisfied ... " used in the above section which the author submits to be synonymous with the phrase employed in terms of section 29 (1) of the Internal Security Act of South Africa which reads thus ... "if he has reasons to believe that any person ... ". To this end relevant cases are discussed.
The article is divided into three parts. The first gives a brief historical account of general drug control, both internationally and locally. The second deals with problems arising from control of Mandrax in Botswana. These problems fall into three main categories. The first deals with the evidentiary aspect. A striking feature of the legislation dealing with drug offences is the provision that on proof by the prosecution of the existence of certain facts, some other facts shall be presumed to exist unless the contrary is proved by the accused. The effect of such a provision is to modify crucially the general principles governing the burden of proof. An evidentiary principle so formulated needs to be reconciled with the presumption of innocence and the ambit of the overall burden of proof resting on the prosecution. The second covers the constitutional aspect. In the constitutional sphere the primary contrast is between invalidity of legislation on the ground of repugnance to provisions of the fundamental law. The third aspect is that of sentencing. Sentences imposed by statutes have stripped the courts of the power to exercise any measure of discretion. The third part of the article looks at problems inherent in any attempt to control drugs and proposes what is thought should be done if drug control is to be achieved.
In this contribution the current legal developments in Bophuthatswana, Ciskei, Lesotho, Malawi, South Africa and Transkei with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.