The demeanour of a witness is generally considered an important factor in assessing the credibility of that witness. Some empirical studies have, however, questioned the value of demeanour evidence. This article considers the value of demeanour evidence in view of the accused's right to a fair trial. It is restricted to situations where a witness's identity is already known, but the witness wishes to testify with some form of face-covering. It is submitted that the accused's right to adduce and challenge evidence will ensure the court's and the accused's access to all possible forms of demeanour evidence. Only in exceptional circumstances will the public interest allow this principle to be limited if the reliability of the evidence can otherwise be ensured.
Soon after constitutional democracy came to Namibia in 1990, the courts began to propound and develop a human rights culture and jurisprudence. Missing, however, from the resulting wealth of case law, were cases relating to government liability. In effect, there was no corresponding development of the law of state liability in Namibia until recently when claims for delictual damages for the acts and omissions of police and prison authorities alleging breaches of fundamental rights, started reaching the courts. Although the Namibian Constitution does not, like the South African, expressly mandate the courts to develop the common law so as to reflect the spirit of the entrenched fundamental rights, the Supreme Court has held that the Namibian Constitution and national legislation necessarily authorise the courts to adjudicate having regard to those rights. It then proceeded in Dresselhaus Transport CC v Government of the Republic of Namibia 2005 NR 214 (SC) to treat as 'useful guidelines' the constitutional-delict principles enunciated by South African courts in developing Namibia's own government liability law. This presentation argues that, like their counterparts in South Africa, litigants in Namibia do not bring their actions directly under the Constitution seeking compensation for breaches of their fundamental rights, and that pursuing that line of action has its inherent problems and negative implications for vindication of litigants' rights. It suggests a re-think of that approach and practice.
The discourse on development-induced displacement has highlighted the enormity of problems faced by communities who are forcefully removed to create room for development projects, while at the same time, exposed the insularity of national and international legal frameworks for their protection. Using the case of Centre for Minority Rights Development (CEMIRIDE) on behalf of the Endorois Community v Kenya (No 276/200), decided by the African Commission on Human and People's Rights in November 2009, this article analyses the support that regional and continental rights enforcement mechanisms could provide to the protection of IDPs, particularly those displaced by development projects. The article concludes that whereas there may be a need for expanding the reach of law in providing protection to development-induced IDPs, it may still be worthwhile to explore the possibility of reverting to the regional human rights protection mechanism to meet the shortfall in protection and assistance provided by the existing IDP laws.
For VAT purposes, two issues arise when vouchers are used namely whether the time of supply is when the voucher was issued and imported (in the case of vouchers issued outside the Republic) into South Africa, or, when a voucher is exchanged for goods or services; and, secondly, whether VAT must be accounted for on the discounted amount paid for the voucher or the stated monetary value of the voucher. This article critically examines the VAT treatment of vouchers under the VAT Act (as it currently stands) with reference to the draft Interpretation Note on the VAT treatment of vouchers at a discount. It further analyses the Draft harmonised EU proposals on the VAT treatment of vouchers in the EU with a view to seeking a solution to the current South African uncertainties in respect of the time and value-of-supply rules when vouchers are issued.
The paper analyses the provisions of South Africa's Intellectual Property Laws Amendment Bill and the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (2010) (the Swakopmund Protocol) of the African Regional Intellectual Property Organisation (ARIPO). The author's analysis focuses on the protection of regional or cross-border traditional cultural expressions from misappropriation, arguing that a more coordinated approach is required for a workable system to emerge.
South African law distinguishes between enrichment liens and debtor and creditor liens. The former are generally classified as real rights and the latter are not. This position is similar to the position in Dutch law before the enactment of the current BW, where retentierechten (liens) were divided into zakenrechtelijke retentierechten and verbintenisrechtelijke retentierechten. The former enjoyed real operation while the latter did not. Even though most authors are of the opinion that neither zakenrechtelijke retentierechten nor verbintenisrechtelijke retentierechten qualified as either real or personal rights, there were some authors who regarded zakenrechtelijke retentierechten as real rights. The current BW did away with the uncertainty regarding the nature of a lien. There is no longer a distinction between different types of lien. Article 3:290-3:295 BW deals with retentierechten and classifies a lien as a verhaalsrecht (right of redress) and a specific opschortingsrecht (right to suspend).