The power to arrest, detain and deport illegal foreigners remains the foundation of immigration control in post-apartheid South Africa. This power is regulated by section 34 of the Immigration Act 13 of 2002. A clear understanding of the scope and limits of this far-reaching power is essential for a human rights based approach to immigration. In an attempt to contribute to such an understanding, this essay explores whether section 34 authorises the pre-emptive arrest and detention of illegal foreigners, even before their status can be conclusively determined. Claims that it does often rests on the view that there are no effective alternatives available to immigration detention. However, international law recognises detentionless deportations, or the so-called Community Assessment and Placement model, as best practice under a number of different international human rights regimes. This international law approach contrasts sharply with the early or pre-emptive detention regime of the Department of Home Affairs in South Africa. A series of recent judgments by the Supreme Court of Appeal provides an opportunity to re-evaluate the lawfulness of this pre-emptive detention policy. After a close reading of these cases, this essay concludes that these judgments are best read against the grain as inaugurating a process of law reform that will hopefully soon culminate in the constructive abolition of pre-emptive immigration detention in South Africa.
The article examines the application of the Consumer Protection Act 68 of 2008 in the health care context. Issues specifically considered are the introduction of no-fault liability and how this new development impacts on the health care sector; the impact of broadened consumer rights on medical practice in general, as well as relevant foreign and international law. In this regard, comparable legal provisions in the United States and European Union are addressed. The article concludes with a discussion of remedies and remedial procedures, including specific recommendations for health care providers and health care establishments to assist in ensuring that the services they deliver are compliant with the Act, based on conclusions drawn from the comparable international examples.
One of the prominent features of maritime commercial activity is the use of Incoterms. Incoterms exist as a result of the International Chamber of Commerce's endeavours to create uniform standard contracts which can be entered into by parties transnationally as part of commonplace global trade. It is therefore essential to explain in the South African context, some of the implications of such terms with particular reference to the recent amendments to the traditional list in Incoterms 2000. Incoterms were created as a result of orthodox commercial exigencies of the maritime industry. These exigencies included, for example, taking into account factors such as the commercial position of an importer (buyer) or exporter (seller). It is therefore consequential that the new Incoterms 2010 will naturally raise a useful enquiry as to the implications of its effects on future international trade. With factors such as significant drops in freight rates during the recent economic recession, it is imperative that an investigation into the amendment of terms be considered in order to determine whether or not the latest amendments to Incoterms provide the required support for sustainable imports and exports.
In light of previous exploitation, less developed countries, understandably, are suspicious of any effort that weakens in the name of scientific progress the highly-valued notions of individual autonomy and informed consent. When researchers import human biological specimens for the purposes of research which will benefit those in developed countries, the charge of scientific imperialism is automatically levelled. Using three countries in Africa as a starting point for the study, the article examines the consent and authorisation requirements for the export of human biological specimens, gathered from health research in the developing world, for subsequent research projects in the developed world. The article concludes that there is an urgent need to strengthen the ethical and legal framework in Africa which governs consent to, and authorisation of the export and use of human biological specimens for future research.
On 27 August 2009, the Government of the Republic of Zambia launched a national anti-corruption policy and strategic document aimed at providing a framework for preventing and combating corruption in a comprehensive, coordinated, inclusive and sustainable manner. That significant milestone marked a candid acknowledgement that previous efforts at legal and institutional reforms have had very limited impact on the prevalence of corruption which, in the Zambian context, ranges from petty bribes and misuse of state power at public goods and services delivery points, to the embezzlement and looting of national resources.
This paper seeks to critically evaluate the extent to which these latest policy objectives and strategic interventions advance the so-called war on corruption. The paper argues that given the pervasive and insidious nature of corruption, it is not enough to adopt pious declarations and public campaigns in the name of zero-tolerance for corruption. What is required is unwavering political will to follow-through on these declarations, buttressed by a holistic approach to enhance transparency, accountability, integrity and participation by all segments of society.
The banking sector is the cornerstone of modern economy. Muslims in South Africa have been utilising Islamic banking through Albarakah since 1989. In 2004 and 2006 successively First National Bank and Absa Bank started offering Islamic banking services through their Islamic windows. South African legislature has introduced the Draft Taxation Laws Amendment Bill introducing Islamic Banking instruments for the purposes of taxation. The Bill does not create a comprehensive legal landscape for Islamic banking. Nonetheless, the Bill indicates at the practices of South African Islamic banks. The investigation of the application of the shari'ah-compliance banking reveals that the mechanical application of Islamic rules does not necessarily achieve the goals of shari'ah. This is due to the major role of the institution of Islamic banking in promoting social prosperity. The matter requires Islamic banks to revisit their current practices in order to restore the origin of norms intended to justify profit by promoting social development.