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- Volume 35, Issue 2, 2002
Comparative and International Law Journal of Southern Africa - Volume 35, Issue 2, 2002
Volumes & issues
Volume 35, Issue 2, 2002
Author Caroline M.A. NicholsonSource: Comparative and International Law Journal of Southern Africa 35 (2002)More Less
Africa is characterised by poverty, disease and malnutrition. Sub-Saharan Africa has the highest incidence of HIV / AIDS worldwide. Both South Africa and Malawi were faced by the onslaught of the HIV / AIDS pandemic at a time of political upheaval. Both are committed to international and regional human rights instruments that entrench the rights of the child to, inter alia health care. In addition, South Africa has entrenched the right to health care as one of the justiciable socio-economic rights contained in the Bill of Rights in chapter 2 of the constitution (Act 108 of 1996). In realising the right to health care, and in an attempt to halt the spread of HIV / AIDS it is proposed that children should be prioritised in the allocation of resources. Despite horrifying AIDS statistics, the risk of a child dying of malnutrition in Africa is higher than the risk of him or her dying of AIDS. If this reality is to change poverty must be eliminated as a disease vector. South Africa and Malawi lack the resources to deal with poverty alone. They need massive injections of foreign aid. Wealthy nations cannot risk the potential negative economic impact that might result if AIDS in Africa is allowed to precipitate a developmental crisis.
Author Tana PistoriusSource: Comparative and International Law Journal of Southern Africa 35, pp 129 –156 (2002)More Less
The Internet is decentralised and self-regulatory. The use of modern means of communication, such as electronic mail, for the conduct of international trade transactions has been increasing rapidly and this trend is expected to continue in future. The exponential increase in international e-trade increases the need for legal recognition that the use of and reliance on electronic messages are valid and enforceable. This article examines firstly the background to the Model Law (ML) with reference to its objectives, scope, structure and approach. Reference is made to the basic provisions which seek to give legal recognition to on-line contracting. Core definitions from Chapter I of the ML and the articles of Chapter III that deal with the legal recognition of the formation and validity of contracts concluded electronically, and the time and place of dispatch and receipt of data messages are discussed. Thereafter, the extent to which these 'provisions have become the international norm is reviewed. The recent legislative reforms in the United States, Australia and Canada to accommodate developments in electronic contracting are discussed. Lastly, the approach followed in the South African Electronic Communications and Transactions Bill is considered.
Author Christa RoodtSource: Comparative and International Law Journal of Southern Africa 35, pp 157 –181 (2002)More Less
A country seeking return of an item of its cultural heritage must be willing to confront numerous potential obstacles to successful international litigation. These range from procedural aspects such as standing to sue, to the finer implications of import and export legislation and domestic ownership rules. Many and varied interpretations could be given to the concept' state of origin', for example. In order to address state claims to cultural heritage, courts have also resorted to conflict of laws doctrine. While traditional conflicts methodology is not always respected, these cases highlight how the application of foreign law can assist in resolving conflicts regarding cultural objects. A variety of tools are available in the subject-field, including directly applicable (mandatory) rules, international public policy and comity. Regrettably, certain rules of the conflict of laws may be applied in ways that conceal the true thrust of legislation designed to aid retention and recovery of items of cultural heritage, or that overshadow international public policy in the area.
Author J.C. Maithufi, I.P.; BekkerSource: Comparative and International Law Journal of Southern Africa 35, pp 182 –197 (2002)More Less
This article is an overview of the most important provisions of the Recognition of Customary Marriages Act of 1998 which came into operation on 15 November 2000. This Act is one of the most important pieces of legislation dealing with family law since the adoption of the present constitutional dispensation. Before the passing of this Act, the only form of marriage recognised by South African law was a civil marriage which was defined as a voluntary union of one man and one woman to the exclusion of all others while it lasts. Customary marriages were recognised for certain defined purposes by express legislative enactments. Although legal pluralism in the field of marriage law still exists in South Africa, thisÂ· Act represents a bold attempt on the part of the legislature to place customary marriages on the same footing as civil marriages. The Act lays down the requirements for the validity of customary marriages, the proprietary consequences of such marriages, the legal status and capacity of the spouses to these marriages as well as the manner and grounds for the dissolution of customary marriages. The most important effect of this legislation is that it changes the whole field of family law in that customary marriages are accorded the same protection as civil marriages by the South African legal system.
Author H. Christian A.W. SchulzeSource: Comparative and International Law Journal of Southern Africa 35, pp 198 –215 (2002)More Less
The globalisation of trade has resulted in the enhancement of free and freer trade worldwide. In this context, the free trade movement has always been part of the effort to facilitate competitive and free trade which is one of the principles of the World Trade Organisation. Free trade zones and especially export processing zones can be an appropriate way to attract foreign and domestic investment to export-oriented manufacturing in a geographically limited area and they do so by usually offering a wide range of investment tax incentives. However, many of these incentives fall foul of the provisions of the Agreement on Subsidies and Countervailing Measures. This article analyses to what extent the investment incentives offered in free trade zone programmes are still permissible in terms of these provisions. It also looks at the new trends that are emerging in the free trade zone industry.
From rights to responsibilities? An overview of recent developments relating to the parent/child relationship in South African common lawAuthor Brigitte ClarkSource: Comparative and International Law Journal of Southern Africa 35, pp 216 –235 (2002)More Less
The article examines the parent/child relationship in South African law in the light of recent legal developments in this country. It further assesses the influence of international conventions and the constitutionalisation of children's rights on South African jurisprudence in this regard. The article seeks further to place the developments in South African child law within an international context with particular reference to developments in the law relating to parental authority and guardianship, custody and developments in the law relating to corporal punishment and domestic violence, particularly from the perspective of children. Children's rights to autonomy in medical decision-making are also analysed with special reference to recent proposals for changes by the South African Law Commission in its Review of the Child Care Act and proposals for a single statute regulating all matters relating to child law. The article includes some discussion of the position of extra-marital children and their relationship with their parents and concludes with a brief discussion of the socio-economic rights of many poverty-stricken South African children, especially those who will be affected by the HIV/AIDS pandemic fr whom there may well be no-one who assumes the role of parent.
Author Nii Lante Wallace-BruceSource: Comparative and International Law Journal of Southern Africa 35, pp 236 –255 (2002)More Less
This article discusses the delicate issue of how to strike an appropriate balance between growth in global trade and sustainable development. The world has in recent times seen a spectacular growth in global trade but at the same time, it has witnessed a spectacular failure to achieve sustainable development. This article discusses how the World Trade Organisation is approaching the challenge. It starts by examining how the GATT handled the issue. Next, it looks at how the question was dealt with by the WTO lawmakers during the Uruguay Round negotiations and how they have dealt with it since. The article then focuses on the judicial attempts to strike that appropriate balance between growth in global trade and sustainable development, starting with the GAIT Panel decisions and moving on to the recent decisions of the WTO's Appellate Body. Finally, the article discusses the Doha Development Agenda.
Mixed jurisdictions worldwide. The third legal family, edited by Vernon Valentine Palmer: Book reviewAuthor Joan ChurchSource: Comparative and International Law Journal of Southern Africa 35, pp 265 –268 (2002)More Less
Author John C. MubangiziSource: Comparative and International Law Journal of Southern Africa 35, pp 269 –288 (2002)More Less
It is a basic principle of international human rights law that prisoners do not lose their fundamental rights, except those that are incidental to their lawful detention. Accordingly, almost all important international human rights instruments make provision for the rights of prisoners. There are also specific instruments particularly designed to provide for international human rights norms for prisoners. The most important of these is the United Nations Standard Minimum Rules for the Treatment of Prisoners. In tandem with these international human rights instruments, many countries have incorporated prisoners' rights in their various constitutions. The purpose of this article is to make a comparative analysis of how a few selected African countries have made provision for prisoners' rights in their constitutions. The article will also discuss the role of the national courts and the approaches they have adopted in applying and interpreting such rights. Whether the constitutional and judicial protection of prisoners' rights in these countries translates into the actual enjoyment of such rights is of course, another story.
Author MichÃ¨le OlivierSource: Comparative and International Law Journal of Southern Africa 35, pp 289 –307 (2002)More Less
This article addresses the question whether the traditional resources of international law as provided by article 38(1) of the Statute of the International Court of justice are adequate to accommodate the full spectrum of international human rights instruments. The greater part of international human rights consists of either conventional or customary international law and fall within the scope of section 38(1). Certain internationally acknowledged international human rights documents, however, do not meet the international law requirements for treaties and custom, for example human rights resolutions of the United Nations General Assembly, in particular the Universal Declaration of Human Rights. This article is an attempt to determine their status. It is suggested that the notion of 'soft law' may be used to explain the legal status and political relevance of such resolutions. It appears from the authority consulted that the term 'soft law' refers to non-law and can therefore not be regarded as a new and separate source of international law. The value of 'soft law' lies on the moral and political level. 'Soft law' further plays an important role in facilitating and mobilising the consent of states required to establish binding international law. 'Soft law', though not a source of law, remains legally relevant and is therefore a governed by international law. Customary international law is suggested as an alternative method to account for the status of international human rights resolutions. International authority is referred to, suggesting that a non-conventional approach to the traditional requirements of usus and opinio iuris is justified in order to lend legal status to human resolutions.
Author Gardiol Van NiekerkSource: Comparative and International Law Journal of Southern Africa 35, pp 308 –318 (2002)More Less
In this article, the integration of laws in Africa through unification, harmonisation or convergence is considered. With regard to the integration of the laws of different countries in southern Africa, reference is made to the countries belonging to the South African Law Association and the states of the Southern African Development Community (SADC). Initially the legal systems of the former group of countries corresponded not only in ideology, method and approach, but also in content. As expected these laws started diverging when they were implemented and interpreted by their different national judicial institutions. Published material on SADC seems to be directed only at economic and international economic law or the enforcement of foreign judgments and the harmonisation of private law has so far not entertained much attention. In South Africa the natural convergence of the Indigenous African law and the imposed western law seems unlikely and harmonisation difficult because the multicultural legal community does not share common perceptions of the concept of law, a theory of valid legal sources, a legal methodology, a theory of argumentation and of legitimation of the law, or a common basic legal ideology.
Author John G. HundSource: Comparative and International Law Journal of Southern Africa 35, pp 319 –327 (2002)More Less
There are fifty states in the American federation, each with its own independent legislature and judiciary, system of law, legal profession and jurisprudence. All of this is held together by an incredibly complex system of federal law. Shortly before the turn of the 19 th century a movement developed to unify and harmonise the diverse laws of these different jurisdictions. This note chronicles the development of this movement's two main institutional vehicles, (a) the Model Act Project of the National Conference of Commissioners on Uniform State Laws (NCC) and (b) the Restatement of Law Project of the American Law Institute (ALI). The author discusses the aims and problems of these two projects and assesses some of their successes and failures from a jurisprudential point of view.
Author Managay ReddiSource: Comparative and International Law Journal of Southern Africa 35, pp 328 –350 (2002)More Less
International law makes provision for special protective measures to be adopted by states in respect of the protection of the identity of minority groups and the rights of their members to enjoy and develop their culture in community with other members of their group. These measures are intended to be additional to those that minority groups enjoy by virtue of being a part of the population of a state. The South African constitutional provisions in respect of minority linguistic and cultural rights are compared to the international law provisions. There appears to be a disparity between the content of the South African and the international law provisions. What is evident in the comparison is that minority groups in South Africa enjoy the same rights, without exception, as the rest of the population of the state. There are no special protective measures designated specifically for the benefit of minorities in South Africa. The South African Constitution does not recognise the identity of minorities. Consequently, no individual enjoys rights that are additional to those enjoyed by the population at large.