Comparative and International Law Journal of Southern Africa - Volume 28, Issue 3, November 1995

The constitution, as the lex jundamentalis of the South African legal order, contains the norms by which all other legislation must be measured. Parliament is no longer supreme; it can no longer pass any legislation without having its authority called into question. Thus it is not only the constitution that must be purposively interpreted; when other legislation is being interpreted, the first enquiry must be what the purpose or objective of the legislation is, so that it can be established whether such purpose is in keeping with the constitution. Whatever the real or imagined intention of the legislature was when the legislation was adopted, it now becomes irrelevant; the only criterion is consistency with the constitution. It is clear that the courts' task will not be an easy one. Friedman descriptionbed it in Nyamakazi as 'awesome and onerous'. The politicisation of the judiciary is a real danger, and the courts must guard against the temptation to become super-legislatures.

A number of sociological and political factors prompted the adoption of the Promotion of National Unity and Reconciliation Act. This article investigates the various provisions of the Act against the principles of international law and argues that many of these provisions are inconsistent with peremptory norms of international law and therefore void. The Act, to the extent that it grants amnesty to war crimes violates a cardinal rule of international humanitarian law, namely that there can be no amnesty for war crimes. Regardless of sociological and political judgments of political actors, international law imposes an obligation on states to prosecute individuals who are alleged to have committed war crimes. This obligation is a superior norm of international law which cannot be compromised to political expediency. Similarly, in suspending and cancelling any civil action that victims of war crimes may bring against alleged offenders, the Act violates a peremptory norm of international law which provides rights to individual victims of war crimes regardless of the attitude of the state.

The factor of race in child placement issues before the courts in the post-apartheid South Africa is complicated at the outset by the fact that all South African precedents on the matter originate from legislation which clearly advocated racial segregation. The existence, for many years, of the Prohibition of Mixed Marriages Act in South Africa is one of the many reasons for the scarcity of reported case law on interracial custody disputes or proceedings. The manner in which race was approached in the South African adoption context, however, may give an indication as to how exactly the factor of race in child placement was viewed and would probably have been applied in custody proceedings. The binding force of the constitution will apply to courts as 'organs of state'. It follows that the court's discretion in deciding on child placement matters will be subject to constitutional scrutiny. Constitutional provisions which may be raised in the context of child placement are the equality provisions, and though not particularly relevant for the purposes of the present study, freedom of religiion, freedom of association, freedom and security of person, freedom of language and culture and freedom of movement.

The conclusion of joint venture agreements is lucrative and has become increasingly important. However, in the event of contractual obligations not being met, the legal implications can be manifold. To be prepared for such (not even unforeseeable) events, it is vitally important to pay careful attention to the correct drafting of the joint venture agreement. This article summarises the most important points that should be considered to draft such an agreement.

This article is the second in a trilogy dealing with methodological problems of modern comparative law. In this article the bases and conditions for the comparability of positive legal phenomena as one of the major general theoretical problems of modern comparative legal methodology are discussed. As in the discussion of the other two theoretical problems, it will be indicated that the current issue reflects the theoretical assumptions and points of departure surrounding the employment of the comparative method by modem exponents of the various schools in comparative law.

The rate of violence and murder is escalating sharply in South Africa, especially in black communities. It is, therefore, appropriate to examine the juridically accountable consequences of killing in black indigenous law. It bears mentioning, immediately, that information is often scanty and not scientifically proven. Although it may be said that criminal law can be distinguished from the law of delict, this differentiation is not as pronounced in indigenous law.

In this contribution the current legal developments in Lesotho, Namibia,, South Africa, Swaziland and Zimbabwe with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.