This article is concerned with the practical implementation of a bill of rights in the South African criminal justice system. A bill of rights will have a pervasive impact on all aspects of the criminal trial, from the magistrate's courts to the provincial and appellate divisions of the Supreme Court. At present presiding judicial officers are not experienced in dealing with constitutional matters as such in criminal trials, mainly because there has to date been no need for them to consider the philosophy and practice underlying the application of a bill of rights. But soon all legal practitioners in the 'new South Africa' will ideally need to be able to find their way around comparative constitutional law, be able to read inter alia French or German, and have the necessary comparative primary and secondary legal sources at hand. Presiding judicial officers will have to examine the rules of evidence and procedure critically in the light of human rights law and be able to re-interpret statutes with the bill of rights in mind, abandoning the old 'intention of the legislature' as sole or main interpretative principle when interpreting statutes.
From an international law viewpoint the narrow meaning ascribed to article VIII(2)(b) of the IMF agreement represents the international law obligation for states. This obligation can also not be regarded as having achieved customary international law status in view of the absence of any uniform practice among states. Because arbitration tribunals are not organs of state, they need not apply the provisions of the article. This is so, even if they have been instructed to apply international law as the obligation is not part of customary international law. The autonomy of the parties to select the law applicable to their contract is recognised by international law . This means that the parties can exclude the operation of article VIII(2)(b) even if they have selected a legal system which has incorporated the obligation contained in the article as the proper law of their contract.
Two Roman-Dutch law principles can be identified for the resolution of custody disputes between married parents. During the subsistence of the marriage, the father has a preferential right to the custody of his minor children; and on divorce the innocent spouse is entitled to the custody of the children of the marriage. Both these rules have lost much of their significance in the two Roman-Dutch jurisdictions we will be considering here, namely, South Africa and Sri Lanka. In South Africa, the Matrimonial Affairs Act 37 of 1953 established that on divorce, judicial separation or where the parties had previously been divorced or were living apart, a court could, in the interests of a child grant sole guardianship or sole custody to a parent. The powers conferred on South African courts by virtue of the Divorce Act 70 of 1979 are much wider. In the context of a divorce, the court now has the power to make any order it may 'deem fit'. The Divorce Act of 1979 also amended the Matrimonial Affairs Act of 1953 and vested a similar discretion in a court dealing with a child whose parents are already divorced or living apart. These statutory provisions were the outcom of a long line of decisions which had undermined the Roman-Dutch principles. In Sri Lanka, there has been no attempt on the part of the legislature to interfere with the preferential right of the father to the custody of his minor children during the subsistence of the marriage. The development in both jurisdictions regarding the law relating to custody disputes demonstrate a readiness with which courts in different jurisdictions are prepared to accept change and their willingness to introduce it into their own jurisdictions if convinced that these developments are sound.
A radical reconceptualisation of the South African law of maintenance is needed to ensure that the ongoing needs of children and their custodians are met and that past child care responsibilities are compensated. An extensive system of social security seems to be required and the state will have to accept a responsibility to support such children. The implementation of a scheme of child support along the lines of that recommended by the Finer Committee for South Africa with the incorporation of a central Child Support Agency as instituted in Australia would recommend itself if funds were available.
This article has attempted to show that since independence the government has retained both the common law and the customary law tenures. The extent to which the two will be accommodated will depend on many factors - the social and economic development of the nation; the industrial and commercial base; and the expansion of the agricultural base, particularly the cattle industry. At this stage it is too early to forecast whether the present policy will be maintained. However, it might not be far-fetched to predict a possible upper hand being gained by the common law system of land tenure; especially with the townships expanding and increasing in number. But even there, with the tribal areas occupying about seventy per cent of the land surface, this possibility might not be expected very soon.
This article identifies some of the problems which HIV/AIDS poses for an employment relationship and how law continues to deal with them against the background of what has already been written on the subject within the employment relationship. The intention here, is to avoid as far as possible, re-writing what others have written on the issue and rather to expose what are basically divergent approaches to the HIV/AIDS bane in the workplace. Four countries, viz Botswana, South Africa, the United Kingdom and the United States of America are considered. Because HIV infection continues to invoke unwarranted phobia and undue bigotry, the initial focus is on the clinical aspects of the condition.
In this contribution the current legal developments in Bophuthatswana, Botswana, Namibia, South Africa, Swaziland, Zambia and Zimbabwe with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.