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- Volume 38, Issue 1, 2005
Comparative and International Law Journal of Southern Africa - Volume 38, Issue 1, 2005
Volumes & issues
Volume 38, Issue 1, 2005
Author Frans ViljoenSource: Comparative and International Law Journal of Southern Africa 38, pp 1 –14 (2005)More Less
'Hate speech' or 'hate propaganda' played a significant part in the 1994 genocide in Rwanda. This contribution investigates to what extent the international human rights regime, at the global level under the United Nations (UN) and the regional level under the Organisation of African Unity (OAU), dealt with this aspect of the genocide. As a state party to the Convention on the Elimination of Racial Discrimination (CERD) and the International Covenant on Civil and Political Rights (ICCPR), both placing an obligation on states to prohibit 'hate speech', Rwanda initially submitted state reports to the treaty monitoring bodies. Despite indications of its importance, 'hate speech' was not prioritised during the examination of these state reports. In the run-up to and during the genocide, in the late 1980s and early 1990s, state reporting ceased. Special measures adopted by the treaty bodies (such as an 'urgent' procedure or special decisions) were ineffective. The response of the regional system, set up under the African Charter on Human and Peoples' Rights, including the establishment of the position of Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions, was even less meaningful. In conclusion, the reform of international human rights law - especially the state reporting procedure - is suggested, and the creation of a pro-active fact-finding committee, integrated with and connected to the relevant political organs, with a constant focus on urgent situations, is advocated.
Author Christa RoodtSource: Comparative and International Law Journal of Southern Africa 38, pp 15 –31 (2005)More Less
Project 121 of the South African Law Reform Commission is called 'Consolidated Legislation Pertaining to Co-operation in Civil Matters'. It offers a golden opportunity to evaluate the statutory framework for the recognition and enforcement of foreign judgments and maintenance orders. While the theoretical basis of recognition and enforcement of foreign judgments has never been settled conclusively, modem perspectives provide new insights with regard to both the theoretical and the practical implications. The commission ought to give these perspectives the systematic treatment they deserve before finalising its recommendations.
Author Sieg EiselenSource: Comparative and International Law Journal of Southern Africa 38, pp 32 –46 (2005)More Less
There are a number of damages issues which are not explicitly dealt with in the CISG and have as yet not been resolved in the more than 350 reported cases dealing with damages. The article discusses the issues of future damages, liability for the loss of a chance or opportunity and the contributory conduct of the non-defaulting party. This is done against the backdrop of the gap-filling provision in article 7 and the comparative provisions of the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law. It is argued that the issues can be satisfactorily resolved with reference to the other two instruments.
Source: Comparative and International Law Journal of Southern Africa 38, pp 47 –74 (2005)More Less
This article examines the Terminal Operators Convention (TOC) in light of South Africa's environmental law regime. Entrenched in section 24 of the Constitution of the Republic of South Africa, 1996 and environmental framework legislation, are environmental rights and responsibilities that may govern a terminal operator's activities, irrespective of other international environmental obligations. The article explains the role of a terminal operator and illustrates how his activities may harm the environment. The article also focuses on interpreting article 5(1) of the TOC by using some South African approaches of judicial interpretation. In particular, it considers whether under the TOC, a terminal operator could be liable for loss or damage to the environment. To facilitate this determination, a comprehensive study of the principle of remoteness, and the role it plays in determining the extent to which loss or damage can be covered, is made. In the final instance, this article examines the inadequacies of the TOC, the greatest being that it is unlikely to cover environmental loss and damage. The authors draw ideas from the TOC and other international environmental instruments, and propose that South Africa should promulgate suitable legislation that imposes rigorous liability on a terminal operator for damage caused to the environment through his/her activities.
Author Thalia KrugerSource: Comparative and International Law Journal of Southern Africa 38, pp 75 –98 (2005)More Less
The European Union is increasingly active in many fields. One of these is the so-called area of justice, freedom and security. Since it has gained competence over this area, the EU has enacted six regulations. These regulations were drafted from an introspective point of view. Their impact on third states has not been contemplated and remains a grey zone. This article attempts to draw attention to the spheres of application of the EU rules of civil procedure. It focuses mainly on the jurisdictional rules of the Brussels I, II bis and Insolvency Regulations. The civil procedure rules of the Service, Evidence and Enforcement Order Regulations are not discussed because by the nature of their aims (service in the EU, evidence in the EU and enforcement in the EU of EU judgments), their impact on third states is limited. In the last instance, the relations between the EU and the Hague Conference for Private International Law are discussed. The Hague Conference provides a forum for the negotiation of private international law conventions, the topics of their work often corresponding to that of EU legislation, particularly regarding jurisdiction in civil matters. Therefore the Hague Conference influences relations between EU member states and third states (which are also members of the Hague Conference).
Author Sanette NelSource: Comparative and International Law Journal of Southern Africa 38, pp 99 –112 (2005)More Less
In the course of gathering news journalists do from time to time rely on confidential sources. These sources claim that they will be subject to retribution for exposing matters of public importance to the media, unless their identity remains confidential. Journalists are frequently requested by way of subpoena to reveal confidential sources and information they have obtained during news gathering. This creates a moral and ethical dilemma for journalists. Most journalists feel an obligation to protect their confidential sources even if threatened with jail. The media argues that confidential source protection ensures that the media is able to perform its role as a public watchdog uncovering wrongdoing, mal-administration and corruption. If journalists reveal their confidential sources they would be seen as an arm of the police, they would lose their credibility as independent, impartial observers and sources will dry up. Furthermore, in terms of the Constitution of the South African Society of Journalists it is required of every journalist to protect his or her confidential sources of information. This article examines the question whether journalists have a legally protected right to refuse to disclose confidential sources of information, and if not, whether they should have such a right and the extent of such protection.
Problems arising in compensating unconcious plaintiffs for loss of amenities of life: a comparative surveyAuthor Boyce P. WandaSource: Comparative and International Law Journal of Southern Africa 38, pp 113 –142 (2005)More Less
In this article I examine the question whether, as a matter of legal policy, unconscious plaintiffs should be compensated for loss of amenities of life. Under current South African law, the position remains to be authoritatively defined by the Supreme Court of Appeal. This is so because there are two conflicting decisions of the High Court, namely Gerke v Parity Insurance Co Ltd 1966 (1) SA 484 (W) in which Ludorf J, who, being persuaded by the position in English law, decided that such loss is compensatable, and Collins v Administrator, Cape 1995 (4) SA 73 (C) where Scott) declined to follow the reasoning of Ludorf J in the Gerke case and rejected the basis under which English law compensates such loss. I further examine the position of the law on this issue in England, New Zealand, Canada, Australia, United States, Germany and France. The investigation reveals that in all these jurisdictions, except Australia and the United States, loss of amenities of life is a compensatable item of claim. There is a division of judicial opinion in the various jurisdictions of United States where some jurisdictions deny recovery under this item of loss while others recognise it as a real loss and compensate it fully. In Australia, confusion abounds among lawyers over the decision of the Australian High Court in the case of Skelton v Collins  115 CRL 94 where it is popularly understood that that court decided that loss of amenities of life is not compensatable loss. My own understanding of that case is that the Australian High Court did not reject, as a matter of legal policy, compensation for loss of amenities of life, but rather that the court was essentially concerned with the question of the quantum of damages recoverable under such loss. In conclusion I recommend for South Africa that the decision of Scott J in the Collins case should not be followed. Short of loss of life itself, loss of consciousness is one of the severest losses that a person can suffer; such loss should be recognised and compensated fully through the medium of the law; and our Bill of Rights enjoins our courts to respect life, albeit the life of an unconscious person.