This article will begin by setting the background to the South African amnesty process, and examining its application to the individual applicant (Part II). Part III will explore whether the amnesties granted by the TRC for international crimes were, first, legitimate amnesties under international law, and secondly, whether there remains an obligation upon foreign states to prosecute despite the amnesties. The international law obligations upon states will be considered according to the source of the obligations, either in treaty law or customary international law. Part IV will investigate the practical limitations on foreign prosecution in the face of a national amnesty. The focus here will be largely on the concerns of jurisdiction, looking in turn at the state's jurisdiction to prescribe certain criminal conduct, and then at the jurisdiction to enforce its laws. Lastly, Part V will examine the attitude towards amnesties as a defence to prosecutions for international crimes.
One of the areas in South African consumer credit legislation that requires most attention is that of enforcement of controls imposed on creditors, as existing legislation is often ineffectual due to inadequate enforcement provisions. I focus on two other jurisdictions in this article. The New Zealand consumer credit legislation, dating from the early eighties, has been comprehensively reviewed recently and a draft bill was introduced late in 2002, while Australian consumer credit legislation, which comprised a number of different federal Acts, was streamlined into a Uniform Consumer Credit Code in 1996. The three aspects of legislation in these jurisdictions that I discuss are the concept of an enforcement agency to ensure compliance with legislation, the concept of sanctions other than the traditional criminal penalties and negative licencing.
This article contemplates the realisation of substantive equality in the context of the globalisation of neo-liberal culture, which favours liberal concerns over egalitarian objectives, conceptualises both state and citizen in entrepreneurial terms and believes that social disparities fall to be redressed by the market and not by the state. The article shows that the South African government is in the somewhat precarious position of having to balance the above dictates of globalisation with the transformative vision espoused by the 1996 Constitution. After setting out the normative underpinnings of economic globalisation and identifying related international tensions, and having highlighted certain premises and structural consequences of economic globalisation which could lead to the further entrenchment of structures that create and reinforce inequality, the article investigates how the balance between economic imperatives and social transformation is currently being struck in the South African labour market. In conclusion, the author atempts to show that goals of international economic integration and social transformation need not be mutually exclusive by contemplating the reconceptualisation of the labour market in egalitarian terms.
This paper outlines the background to the conflict in the Sudan. It provides a brief summary of international humanitarian law, before introducing the ICRC and its relationship to international humanitarian law. The 'dual and special' role of the ICRC in the Sudan is examined, leading to the conclusion that, in the context of civil war, for the organisation to subordinate one of its dual roles to the other is to endanger the very raison d'etre of the organisation itself.
Where a convicted person has exhausted all recognised legal procedures pertaining to appeal and review and further evidence has since become available which materially affects the conviction, such a person can apply to be pardoned by the President, in which circumstances section 327 of the Criminal Procedure Act empowers the President to enact such pardon. After evaluating this procedure, it can be said that it adequately provides for the admissibility of newly discovered evidence, but that it falls short where a claim of innocence can be conclusively proven with newly discovered DNA evidence. The probative force of DNA-evidence necessitates that its admissibility be treated differently from the usual types of newly discovered evidence. Measures similar to those currently awaiting approval in the United States of America should be put into place to ensure access to post-conviction DNA testing in appropriate cases. The essence of these measures is that a convicted person must be given the opportunity to apply to a court to have such evidence tested. In addition, provision should be made to ensure that all evidence was secured in relation to the investigation or prosecution of a crime and that could be subjected to DNA testing, be preserved for at least the period of time that any person remains subject to incarceration in connection with the investigation or prosecution.
The Employment Equity Act 55 of 1998 (EEA) makes provision for affirmative action of 'suitably qualified' people from designated groups. The merit principle is therefore relevant. Factors to establish suitable qualifications include formal qualifications, prior learning, relevant experience and the capacity to acquire, within reasonable time, the ability to do the job. As none of these are defined in the EEA, their meaning is unclear. In the US, the merit principle has been used by both opponents and proponents of affirmative action for almost forty years. US legislation, guidelines and regulations are examined to assist SA in more adequately defining the concept of merit at an early stage. Generally, in the US, standardised tests are used in determining 'ability'. Strong arguments have, however, been made for a broader recognition of merit beyond test scores, grades and statistics. It turns out that the US are agreed neither on the definition of merit, nor on the context to which it is desirable, nor (if it is desirable) on how to use it effectively. But some pointers can be taken fromthe US. A few recommendations are made to assist with the development of merit in South Africa.