This article deals with the double-jeopardy implications of the state-initiated appeal from a comparative perspective. The main focus is whether current South African legislation and common-law rules which provide for the various types of state-initiated appeals set out in Section 33(3)(e) of the Constitution of South Africa, can be reconciled with constitutional protection against double jeopardy.
Prior to 1990 the constitutional landscape of much of Commonwealth Africa was characterised by military rule or executive dictatorship in the form of the one-party state coupled with the widespread abuse of human rights. Inevitably, institutional checks and balances remained weak. Parliaments were essentially 'rubber stamp' bodies, judicial independence was largely undermined and the under-funded and under-powered offices of the ombudsman made little impact. Since then a new 'wind of change' has transformed the constitutional and political landscape with many Commonwealth African states adopting new constitutions that seek to address the ills of the past. The strengthening of democratic institutions is one of their key features. The impetus for this largely emanated from the 1991 Harare Commonwealth Declaration in which Commonwealth heads of government pledged to protect and promote the fundamental political values of the Commonwealth concentrating especially upon 'democracy, democratitic processes and institutions which reflect national circumstances'. In the case of Ghana, South Africa, Malawi and Uganda this resulted in the establishment of human rights commissions. These represent a 'new breed' of autochthonous institution designed to promote and protect human rights and the concepts of good governance, accountability and the rule of law that form the basis of the Harare Declaration.
Although older and more advanced in terms of organised administration and economic structures, South Africa is, in fact the newest of the region's countries, having attained its liberation only in 1994. There has been a growth in the number of immigrants and emigrants to and from South Africa, respectively between 1994 and 1996. In the area of investment, the trend has been even more spectacular. Liabilities may arise from the business activities of those concerned or from their contractual, delictual or even criminal activities. The majority of the countries in the SADC region belong to two sister common law systems, namely the English and the Roman-Dutch respectively. Equally important is the fact that theses countries fall neatly into four categories of legal codes. These are Angola and Mozambique which follow Portuguese law, the Congo and the Seychelles which are based on French law while the rest belong to the Anglophone and Roman-Dutch law systems. These make the group small and therefore appropriate for harmonisation or a convention.
The recent decision by Lindenmayer, J of the Family Court of Australia in "Director General, Department of Families, Youth and Community Care v Thorpe" provides an interesting example of how the Australian courts deal with issues arising from the adaption of the Hague Convention on Civil Aspects of International Child Abduction. Although it may be, as one commentator has suggested, that cases involving countries which are not signatories to the convention are more difficult, this does not mean that cases involving convention countries are without problems. Indeed, one such case with rather unusual circumstances, has reached the High Court of Australia. Given the recent adoption of the Convention by South Africa, the experience of a relatively adjacent and appropriately comparative jurisdiction might be of special interest to South African readers.
In a previous article, the available ethnographic information concerning the delict adultery in indigenous law was examined. It was indicated there that the case law concerning this delict requires a separate study. In the present contribution, this study is undertaken. The author concludes that it appears as if adultery as a delict is being phased out everywhere. In the final instance, African customary law will be compelled to follow this trend.
This paper examines the policy bases underpinning changes to Zambia's company law in terms of which the Companies Act 1994, companies are no longer required to have a memorandum of association. In particular, the paper concentrates on the lack of statutory obligation in the Companies Act 1994 for companies to have an objects clause. Underscoring the views expressed, the argument that whereas under the English Companies Act 1985 the doctrine of ultra vires has been abolished, the position under the Zambian Companies Act 1994 is somewhat unclear. In the United Kingdom, company directors will bind the company in transactions with third-parties no matter how far removed the transaction is from the company's usual business. The directors will bind the company provided that they are dealing with a bona fide party who has no notice of limitations on their powers, and that party has given value. In Zambia, provisions of the 1921 Zambian Companies Act, the statute which preceded the 1994 Zambian Companies Act, required every company incorporated under the 1921 law to have a memorandum of association. The Companies Act 1994, which repeals and replaces the 1921 Companies Act, is silent on the issue of a memorandum of association. One view is that the Companies Act 1994 has abolished the statutory requirements for a memorandum of association. This view is discussed in the article.