It is essential to make provision for the threat to the existence of law and order arising from serious civil commotion, national disaster and threat of armed invasion, even in demographically homogeneous, democratic and relatively peaceful states. This is even more true in deeply divided communities, like South Africa, with its traumatic history of racial oppression, where the threat of civil commotion and even civil war are more likely. Therefore, the advent of democracy and the constitutional state has not made the provision for emergency rule less necessary. However, the greater the commitment to a Bill of Rights, the more difficult it is to frame emergency powers. Nevertheless, the decision to include a section on suspension of fundamental rights and on states of emergency in the constitution was controversial.
There is no doubt that Roman law gave Africa a scientific legal framework and structure which can fulfil the needs of a changing Africa. Even though judicial precedent has eroded the direct relevance of this law, its underlying values still provide an important substratum around which the common law of the Southern African countries revolve. These values and the African values founded in the spirit of ubuntu, are in many respects different, but they are not irreconcilable. The fact that there are differences in these systems of law does not mean that Roman law should be the exclusive source of the Southern African ius commune or that ubuntu should be denied for the sake of Roman law. Western jurisprudence may have a lot to learn from African thought. Both Roman law and indigenous African law have much to contribute to a common law for Southern Africa. Just as the European ius commune drew on Roman law, canon law and the customary Germanic laws of the time, so should our African ius commune be based on both Roman law and African law.
The legal position on abortion in Ireland clearly illustrates the dilemma when the foetus is accorded a constitutional right to life. Entrenching this right in a bill of rights or criminalising abortion does not bring the protection so many pro-life lobbyists are striving for. In this regard, Ireland finds itself one step behind South Africa in the sense that it can be said that the foetus is actually worse off than in South Africa where abortion on demand is available. Research has indicated that countries which permit abortion on request actually report lower abortion statistics, whereas those countries in which abortion is criminalised or where abortion on request is not available, are faced with shockingly high abortion figures. In the light of the present uncertainty surrounding the status of the human embryo and foetus and the question on the constitutionality of the South African Choice on the Termination of Pregnancy Act, it is suggested that the valuable Irish lesson should not go unnoticed.
The mischief sought to be remedied by a law restricting financial assistance in the acquisition of company shares is somewhat unclear. In fact, financial assistance does not alter or reduce the share-capital of a company. In 1994 a new Companies Act was enacted in Zambia. This statute, which repealed and replaced the Companies Act 1921, changed company law in Zambia fundamentally. Among the changes was the introduction of statutory provisions instituting restrictions on financial assistance in the acquisition of company shares. This article examines the salient features of the law restricting financial assistance in the acquisition of company shares. The efficacy of the law in Zambia is examined and distinctions and similarities between that system and those of the United Kingdom and South Africa are considered.
The African Charter on the Rights and Welfare of the Child was adopted by the Assembly on 11 July 1990. It is quite remarkable that the African states could reach agreement on its contents in so short a period. Africa has clearly taken the lead in becoming the first region to give the global instrument regional application. Unfortunately, some seven years later the Charter is not yet in force, as only six of the required fifteen states have so far ratified it.
In this article we consider the legal position of presumptions, be they of fact or of law, in the light of the South African Constitution (Act 108 of 1996). Where necessary and appropriate, account is taken of the provisions of the interim constitution, the Constitution of the Republic of South Africa Act 200 of 1993. In South African law presumptions are found in both civil actions and criminal cases. For present purposes we shall concentrate on presumptions operative in criminal cases, although reference to presumptions found in civil cases will be made when relevant. The term 'presumption' is best understood when explained from the perspective of its effect. Presumptions have the following effects: First, they shift the onus from the state to the accused. A presumption presumes the accused guilty until proven not guilty and, as such, runs counter to the presumption of innocence found in section 35 (3)(h) of the 1996 constitution which reads: Every accused person has a right to a fair trial which includes the right to be presumed innocent, remain silent and not to testify during the proceedings.
To many of us one factor emerges as central to and plays a critical role in the search for the social integration process and the promotion and protection of human dignity in South Africa, namely: cultural divergence. Multiculturalism is thus often perceived as enemy number one in South Africa's search for social integration. The aim of this article is to address that issue, focusing on the crucial importance of culture with a view to analysing its impact in South Africa's quest for social integration. It will be argued that South Africa is characterised by serious divergent cultural values which have led to the establishment of a culturally heterogeneous society that the resulting multiculturalism has turned out to be a negatively divisive phenomenon that there is a relationship between culture, customary law and legal pluralism; and that the challenge to social integration and human dignity should, of necessity, take into account issues related to the legal framework within which the process of social transformation should take place; that is, where the role of customary law and legal pluralism comes into focus.
In this contribution the current legal developments in Namibia, South Africa, Zambia and Zimbabwe with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.