In this article a rule for South African conflicts of laws in international delicts is proposed, in the light of the latest private international law developments in Canada. Canada is following the English rule, together with South African courts' implied suggestion that the English choice of law rules will be followed. This necessitates a brief look at the status quo of international delicts in England. Canada's development is followed by a discussion of the position in South Africa. The history of this conflicts rule in South Africa, approaches proposed by local academics and a brief comparative look at the United States, the Netherlands and Australia will be used as a method of introducing a South African rule to be implemented by our courts when the opportunity arises.
Section 16 of the Constitution of the Republic of South Africa Act 108 of 1966, is a more detailed provision than its predecessor in that it extends the scope of freedom of expression to incorporate the freedom to receive and impart information and ideas. The constitutional right to freedom of expression is not absolute, and is subject to an internal limitation (section 16(2)) in that propaganda for war, incitement of imminent violence or advocacy of hatred (the so-called 'hate speech', do not qualify for protection. Over and above this internal limitation there is a general limitation clause, which permits the limitation of a fundamental right under certain specific conditions. This article addresses the philosophical basis of the right to free expression and the content of the right. However, since section 39(1) of the Constitution specifically provides that in interpreting the Bill of Rights, a court, tribunal or forum must consider international law and may consider foreign law, it is apparent that no discussion of any fundamental right will be complete without reference to international law and foreign law.
If the new government adopts the approach that there has been a change in sovereignty over the territory of South Africa, and that for the first time South Africa is now a newly emancipated state, can the government also adopt the view that henceforth, all treaty obligations entered into by the apartheid order, and all wrongs committed by the apartheid order (in both the domestic and foreign contexts) can be dealt with in terms of the 'clean slate', or 'free choice' approach to newly emancipated states? On the one hand, some may argue that the clean slate approach is not available to South Africa, because South Africa has been a state and was recognised as such by the international community. This article argues that this question is a matter of first impression. In addressing the question there is a need to move beyond a formalistic approach and to look at the reality of what the apartheid order represented to the international community and the majority of South Africans.
Class actions and public interest actions are part of the world wide trend towards achieving the goal of access to justice. Although the terms 'class rights' and 'class' are not alien to South African company law,Â· these terms have generally not been part of the legal parlance and have so far not been used in the context of class actions as encountered in American law simply because they were unknown in South Africa until recently. However, the need for such an action was identified more than ten years ago. Meanwhile, the Constitution has formally introduced class actions into South African law. The type of class action envisaged in the Constitution is limited to the protection of the fundamental rights set out in chapter two. The protection is directed at the contents of all legislation and in respect of administrative decisions by the state. Because of this limitation the South African Law Commission recommended that' legislative intervention in the form of an act of Parliament is necessary to make provision for class actions and proposed draft legislation,
'When a confession is well proved it is the best evidence that can be produced'. This statement underscores the importance of confessions in a criminal trial. Law enforcement agencies (notably the police) therefore very often place undue weight on the need to secure a confession from an accused person, at the expense of a thorough investigation of a crime. Consequently, the law in the accusatorial criminal law system, such as exists in Botswana, tries to formulate rules by which temptation to use improper inducements and other similar tactics to obtain confessions are reduced to the barest minimum, if not entirely removed. Such rules need to be applied rigorously to ensure fairness to the accused as well as the State. The article attempts to examine the statutory provisions governing the admissibility of confessions, their judicial interpretation, attempts by the judiciary to safeguard the rights of the accused person in their application and to evaluate their practical efficacy.
The purpose of this article is to evaluate whether those provisions of the Criminal Procedure Act 51 of 1977 and of the South African Police Service Act 68 of 1995 relating to warrantless searches and seizures that are not incidental to arrest are consistent with the spirit, object and purport of the South African Constitution. This raises the question: do such warrantless searches and seizures conform to the new legal order demanded by the constitution, or, do they still reflect the values of the old apartheid order, and as such, are in conflict with the Constitution and therefore invalid? The authore, therefore, turns to the law of foreign jurisdictions for guidance - at the same time taking heed of the warning against too readily importing foreign law.
In this contribution the current legal developments in Botswana, Namibia, South Africa, Zambia and Zimbabwe with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.