This contribution attempts to demonstrate how sentencing guidelines operate in practice, with the assistance of a basic factual scenario plus two slight variations. The factual scenario involves a simple instance of the sexual offence commonly known as rape. The likely sentences for the related offences in four different jurisdictions are then considered and discussed. These jurisdictions are those of Minnesota and the US federal system (both of which use sentencing guideline manuals to establish a presumptive sentence), the law of England and Wales (where guidelines are issued in a narrative format through guideline judgments, and the new Sentencing Guidelines Council in conjunction with the Sentencing Advisory Panel), and South African law (where the sentence discretion is very wide, but currently limited by minimum sentences legislation). In the process it is shown how much more uncertain the eventual sentence is under the South African system with its wide discretion.
This article examines the role played in the context of public international organisations of the procedure of provisional application as reflected in articles 25 of the 1969 and 1986 Vienna Conventions on the Law of Treaties. It also identifies developments in the law and practice of provisional application that have been fostered by the creation, functioning and treaty-making activities of international organisations.
Following a brief introduction to the procedure of provisional application, three distinct applications of the technique in international organisations are discussed. These are the provisional application of treaties concluded by international organisations in their own right; the provisional application of multilateral conventions negotiated and concluded under the auspices of international organisations; and the provisional application of treaties containing the constitutions of new international organisations or amending such constitutions. As the provisional application of constituent instruments is frequently achieved in the surroundings of a temporary intergovernmental entity known as a preparatory commission, consideration is also given to the unresolved question of the international legal status of such bodies. Among the conclusions reached is that organisational practice demonstrates that the principle of pacta sunt servanda applies during the provisional period.
Increased resistance to excessive levels of remuneration for executives and the need for sound corporate governance in this context requires attention to be focused on achieving an appropriate regime for the remuneration of executives. This paper considers four different approaches that could be used to achieve this. These are the requirement of disclosure of details of remuneration, the appointment of remuneration committees who are given the task of determining remuneration packages, the linking of pay to performance so that executives are not rewarded for failure and giving the shareholders the opportunity to vote on the remuneration policy of the company. The paper considers the approach adopted in Australia, the recommendations made by the European Commission and the highlights the position in South Africa.
The purpose of this article is analyse the Cartagena Protocol on Biosafety in the context of its contribution to sustainable development. Using the author's conceptualisation of sustainable development developed through a series of previous publications, the article considers the kinds of trade-offs and compromises that are made between environmental and economic pillars of sustainable development. In furtherance of this objective the article focuses on the preabular recitals deal the potential conflict between trade regimes and the Protocol. In addition various provisions of the Protocol impacting on the trade development debate are considered. The article concludes by suggesting that the Protocol adopts a two-tiered approach to the trade development conflict. Moreover, this adoption of the two tiered approach to the trade-development illustrates the need to adopt a nuanced conceptualisation of sustainable development. Finally the article concludes that the Biosafaety Protocol adopts an economic growth centred model of sustainable development.
Data protection legislation is essential to protect the interests (such as privacy and identity) of individuals who can no longer control the use made of their personal information. The international nature of data protection necessitates a harmonised approach by all countries involved. International expectations increasingly put pressure on countries without data protection legislation to adopt such legislation if they wish to remain part of the international information community. Despite differences in language, legal traditions and cultural and social values, there has been a broad measure of agreement on the basic principles that should be embodied in data protection legislation. These principles can be formulated as the principle of fair and lawful processing; purpose specification; minimality; quality; openness or transparency; data subject participation; sensitivity; security and confidentiality; and accountability. These data protection principles should all be given effect to in a South African data protection law. This article examines the data protection principles from a comparative perspective, and discusses how they should be implemented in a South African data protection law.
The purpose of this paper is to examine the challenges the South African government will face implementing the Firearms Control Act 60 of 2000 in light of the existing gun culture in South Africa. The paper begins with a description of the prior firearms control regime and the promulgation of the new law. It compares the mechanisms for gun control provided in the predecessor statute - the Arms and Ammunition Act 75 of 1969 - to the current mechanisms, critically analyzing whether the new legislation corrects the problems of the old. The paper then compares how the United Kingdom and the United States, two jurisdictions with similar gun cultures, handle arms control and what lessons South Africa can gain in order to foster future law reform efforts.
In this article I highlight a few important aspects of property law confronting lawyers in Swaziland today. Many of these problems are general and therefore also affect other branches of the law. I shall not attempt to offer solutions to the multifaceted problems generally facing the law in the country, but shall merely refer to these insofar as they influence the law of property.
Central to this article is the definition of the law of property. We define the law of property as a branch of private law which consists of a number of legal rules that determine the nature, content, establishment, protection, transfer and termination of various real relationships between a legal subject and a specific legal object (a thing), as well as the rights and duties ensuing from these relationships.