- A-Z Publications
- Comparative and International Law Journal of Southern Africa
- Previous Issues
- Volume 46, Issue 3, 2013
Comparative and International Law Journal of Southern Africa - Volume 46, Issue 3, 2013
Volumes & issues
Volume 46, Issue 3, 2013
Source: Comparative and International Law Journal of Southern Africa 46, pp 286 –307 (2013)More Less
Art and cultural objects have a complex nature and status. A legal approach cannot escape having to state which objects come within the scope of the definition, but an objective legal definition in abstracto is difficult to provide. Because the flows of licit and illicit objects are so intermixed, both the legitimate and underground art markets are implicated in the trade involving these objects. Global legal diversity further complicates the distinction between the licit and the illicit trade. This article takes stock of restitution and suitable dispute settlement mechanisms against this backdrop. Restitution processes have become more openly policy-oriented, and the meaning of 'restitution' now extends to overcoming the legal obstacles in the way of return. Law can provide the framework for negotiation and dispute settlement in many cases, but the ethical dimension is a particularly powerful agent for restitution of Nazi spoliated art and human remains.
Source: Comparative and International Law Journal of Southern Africa 46, pp 308 –336 (2013)More Less
This paper deals with employees' right to strike and violence in South Africa. It first deals with the protection of employees' right to strike in international and regional human rights instruments. It then looks at the legislative framework governing the protection of the workers' right to strike in South Africa, before exploring the legal consequences of violence that takes place during protected and unprotected strikes. The article argues that although the right to strike is protected in international, regional, and domestic law, it is not absolute. Violent strikes are prohibited. It concludes that trade unions have a responsibility to ensure that when their members exercise their constitutional right to strike, they do not commit acts of violence as this may justify employees' dismissal, provided that all the requirements set by the Labour Relations Act have been met.
Author Gerrit FerreiraSource: Comparative and International Law Journal of Southern Africa 46, pp 337 –364 (2013)More Less
The ever-increasing interaction between and intertwining of municipal law and public international law have profound consequences for legal comparison. This is particularly evident when one looks at the overlapping of a number of terms and concepts in these two areas of law. The distinctiveness of some and the similarity of others, are a source of confusion and uncertainty that may hamper legal comparison and even produce unreliable results. This contribution aims to identify some difficulties that may be encountered when engaging in legal comparison involving municipal and public international law.
Challenges facing the harmonisation of the SADC legal profession : South Africa and Botswana under the spotlightAuthor Jimmy Phazha NgandweSource: Comparative and International Law Journal of Southern Africa 46, pp 365 –384 (2013)More Less
This paper reviews the harmonisation of the legal professions within the Southern African Development Community (SADC), with particular emphasis on Botswana and South Africa. The subject has not attracted much scholarly attention as it is perceived as a preserve of the professional legal practice, rather than an academic legal discourse. The paper, therefore, contributes a new perspective to a deficient, if not non-existent, scholarship on the free movement of legal services within the sub-region and globally. It ponders the question of accessibility of the professions in either jurisdiction to either citizens, and to other SADC citizens. It is not merely an academic odyssey, as it aims to discuss the real practical challenges facing the harmonisation of the legal professions in the region. It is argued that these challenges must be circumvented before any meaningful advance towards harmonisation of the SADC legal profession can be achieved. The paradox of nationalism and regionalism is clearly illustrated as the vortex of the disharmony in the jurisdictions considered. The paper identifies the pitfalls relating to admission requirements, and contends that they are symptoms of the interests of the atomistic nation-state, premised on the concept of market protectionism. It further considers the free movement of legal services under the General Agreement on Trade in Services (GATS).
The potential of the Expert Committee of the African Children's Charter in advancing adolescent sexual health and rights in AfricaAuthor Ebenezer DurojayeSource: Comparative and International Law Journal of Southern Africa 46, pp 385 –409 (2013)More Less
This paper examines the role of the African Committee of Experts on the Rights and Welfare of the Child (ACE) in advancing the sexual and reproductive rights of adolescent girls in Africa. The paper focuses on the implications of lack of access to contraceptive services for the enjoyment of the rights of adolescent girls as guaranteed under the African Children's Charter and the Convention on the Rights of the Child. It then considers the potential role of the ACE, through its protective and promotional mandate, in advancing female adolescents sexual and reproductive rights in Africa. The paper draws on experiences of other human rights bodies such as the Committee on the Rights of the Child before finding that ACE is in a unique position to advance the sexual and reproductive health and rights of adolescent girls in the region.
Author Adem Kassie AbebeSource: Comparative and International Law Journal of Southern Africa 46, pp 410 –446 (2013)More Less
This article assesses decisions of domestic courts in Africa on the right of prisoners to vote. Although there is an increasing recognition of this right to vote at national level, it is difficult to talk of such a 'right' at the international, or African level. Nevertheless, it appears from the decisions of international and regional tribunals that international human rights law is not in favour of automatic and indiscriminate criminal disenfranchisement laws. Some courts in Africa have played an active role in enfranchising prisoners. Yet, the overwhelming majority of African countries continue to exclude prisoners from elections. A decision at the African level, either by the African Commission on Human and Peoples' Rights, or by the African Court on Human and Peoples' Rights, can contribute to clarifying the status of the right of prisoners to vote in the African human rights system. Human rights NGOs should, therefore, identity and submit a suitable test case to the commission, and if possible to the court. This article recommends that the African Commission should submit an application requesting the advisory opinion of the African Court on the issue of criminal disenfranchisement with its diverse manifestations.
Targeting decisions involving voluntary human shields in international armed conflicts in light of the notion of direct participation in hostilitiesAuthor Shannon BoschSource: Comparative and International Law Journal of Southern Africa 46, pp 447 –473 (2013)More Less
The ever-changing theatre of war is placing greater demands on commanding officers to make targeting decisions in instances where international humanitarian law (IHL) cannot provide a clear directive. The recent emergence of the voluntary human shield (VHS) as a new actor in international armed conflicts, has highlighted another lacuna in the laws of war, which have to date only considered the plight of the involuntary human shield. Existing IHL does little other than presume that VHSs retain their civilian status until a competent tribunal dictates otherwise. Unlike regular civilians, these VHSs play a role in attempting to frustrate the targeting decisions of the belligerent parties. However, unless their actions amount to direct participation in hostilities, VHSs at any location retain their civilian status, and are not themselves legitimate military targets. The actions of VHSs must satisfy the test for direct participation in hostilities (proposed by the ICRC), before they forfeit their civilian immunity from direct attack, and face potential prosecution upon capture.
Challenges in the distribution of death benefits under the Pension Funds Act : the extent of dependency consideredAuthor Mtendeweka MhangoSource: Comparative and International Law Journal of Southern Africa 46, pp 474 –491 (2013)More Less
This note addresses a recent determination by the adjudicator in Steenkamp v South African Breweries Staff Provident Fund, where she set aside the Board's decision to distribute R3,3 million to a deceased pension participant's partner, and ordered the Board to re-exercise its discretion by taking into account the partner's extent of dependency. The note argues that the determination should be welcomed for its consistency in holding that the extent of dependency is a relevant component for the Board to consider when making death benefit distributions in terms of the Pension Funds Act. The note also commends this determination for clarifying that children of the deceased pension participant, should automatically be considered in the death benefit allocation. The note further welcomes the determination under discussion because it highlights the importance of the wishes of the deceased in a death benefit distribution analysis, and correctly dismissed an exspouse's claim of dependency. The note commends the Adjudicator for promoting certainty in this otherwise opaque area of law.