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- Volume 24, Issue 3, 1991
Comparative and International Law Journal of Southern Africa - Volume 24, Issue 3, 1991
Volumes & issues
Volume 24, Issue 3, 1991
Author Derek Van der MerweSource: Comparative and International Law Journal of Southern Africa 24 (1991)More Less
Given the economic imbalances and ideological differences in the Southern African region, one can readily imagine that the nature of normal economic relations between South Africa and the other states of the region is not immediately apparent. One consequence of this is that complex legal problems are bound to arise and that the resolution of these problems will depend not merely on legal and technical expertise, but also on a sensitivity for the policy considerations that will inevitably surround such problems. In this article an attempt is made to provide a brief overview of different types of economic cooperation between states, of the most important existing structures for economic cooperation in the region, of some policy considerations for future economic cooperation and, finally, some examples of the many problem areas that would need to be addressed by lawyers if constructive economic cooperation is to be realised.
Independence of the judiciary, prospects and limitations of judicial review in terms of the United States model in a new South African order: towards an alternative judicial structureAuthor Ziyad MotalaSource: Comparative and International Law Journal of Southern Africa 24, pp 285 –314 (1991)More Less
The purpose of this study is to investigate the notion and practice of judicial review in Anglo-American constitutional systems and to consider its potential and possible pitfalls in a new South African order. The discussion is approached from a comparative perspective and an attempt is made to benefit from the trials and errors of judicial review in other nations - particularly independent African countries. The questions to be addressed include the reasons advanced for, and the different scope of judicial review. Independence of the judiciary is an important clement in protection against arbitrary action on the part of officials of the state. The composition and historical role of the present South African judiciary is investigated to highlight the potential problems that judicial review in terms of the Anglo-American model pose for a new South Africa. The challenge for a future South Africa is not merely to replace the present judiciary (appointed by the apartheid order) with a new set of judges appointed by the new order, but rather to devise an alternate, more democratic judicial structure, better suited to the realities of the South African situation. The article will provide a model judicial struction and define the scope of judicial review based on the European models which, it will be argued, are better suited to the realities of South African society.
Author Kader AsmalSource: Comparative and International Law Journal of Southern Africa 24, pp 315 –340 (1991)More Less
Control over the constitutional validity of legislation and executive action is now recognised as a basic theme of constitution law. It is based on the assumption that a constitution forms part of the "supreme" or "higher" law which ought to regulate or control the power of legislators. Where there is a written constitution, especially one which prescribes fundamental rights or which provides for a separation of powers or delimits authority between a central government and federal or state units, there is usually today recourse to an authority external to the law-maker on the twin bases that such control over the constitutional validity of the law is firstly a recognition of the special status of the constitution and, secondly, a means of resisting its infringement by legislation because legislation could be an instrument of tyranny and a source of grave abuse. The composition, powers, jurisdiction and functions of the constitutional courts in various countries are compared in this article, looking at the composition of the members of the Court, and the jurisdiction of the Courts in the countries discussed.
Author Dawid Van WykSource: Comparative and International Law Journal of Southern Africa 24, pp 341 –351 (1991)More Less
The purpose of this article is to highlight aspects of the constitutional process after Namibia gained its independence, particularly in the Constituent Assembly. It is intended to complement other discussions of the Constitution, the majority of which pay scant attention to the important interaction between process and outcome. In the Namibian context this connection is important for two related reasons. On the one hand, certain provisions of the Constitution can only be understood in terms of the debate which led to them; on the other, the courts may well need to have recourse to the history of a particular provision in order to establish its true meaning.
Source: Comparative and International Law Journal of Southern Africa 24, pp 352 –364 (1991)More Less
This article examines theft in rudimentary legal systems with indigenous customary law of the blacks in Southern Africa as the point of departure. Theft in these systems is descriptionbed initially, and in this connection the following limitations should be considered: not all the information about the various tribes is available; only those facts which are recorded are therefore considered; certain references did not make it clear which tribes were being referred to; it is difficult to determine, in view of the process of legal acculturation which is taking place amongst the indigenous population, which legal rules may be considered traditionally authentic and which rules have been influenced by white values. Some general conclusions are arrived at against this background and the existence of possible universal development patterns is indicated.
Author David Akapelwa AilolaSource: Comparative and International Law Journal of Southern Africa 24, pp 365 –378 (1991)More Less
The law of compulsory third party motor vehicle insurance in Lesotho too a new turn on 1 January 1990 when the Motor Vehicle Insurance Order came into force, In this article we seek to highlight some of the new Order's unique characteristics, stressing where it differs from previous legislation. In addition, the real significance and implications of the Order in terms of efficiency benefits to the third party and cost effectiveness are examined. As a starting point, we consider the question of who may carryon the business of motor insurance in Lesotho. This is followed by a discussion of the contents and substance of the contract of motor insurance itself. The rest of the discussion relates to the various provisions of the new Order. A comparative approach is employed for purposes of enhancing our understanding of the extent of the changes. The terms "new Order" and "old Order" are used to refer to Orders 26 and 18, respectively.
Phipson on evidence, edited by M.B. Howard, Peter Crane and Daniel Hochberg: Book review*; Media law, by Y. Burns: Book review**Author S.S.** Schmidt, C.W.H.*; NelSource: Comparative and International Law Journal of Southern Africa 24, pp 374 –411 (1991)More Less
Author Kandako MhoneSource: Comparative and International Law Journal of Southern Africa 24, pp 379 –385 (1991)More Less
This brief article analyses the aims of the Southern African Development Co-ordination Conference (SADCC). It looks at the historical aspects as well as the problems confronting the organisation. The legal problems concern existing import/export rules, visa requirements and varying legal regimes. Possible solutions range from the abolition of licences for imports and exports in SADCC trade, and the abolition of the visa requirement for the citizenry of the region; to the replacement of the legal regimes by the United Nations texts dealing with international trade. This would remove any uncertainties or ambiguities arising where trade is conducted in an atmosphere of varying legal regimes, and bring the organisation closer to fulfIlling one of the wishes of the Founding Fathers, viz the creating of links to create a genuine and equitable regional integration.
Butterworths civil procedure in the Supreme Court, by L.T.C. Harms: Book review*; Labour Law (First published as Acta Juridica 1990), by C. Albertyn, M. Brassey, D. Davis, B. Jordaan, A.A. Landman, P. le Roux, C O'Regan, P.J. Pretorius, and D.J.M. Pitman: Book review**; A sourcebook of African Customary Law for Southern Africa, by T.W. Bennett: Book review***Source: Comparative and International Law Journal of Southern Africa 24, pp 421 –427 (1991)More Less