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- Volume 47, Issue 1, 2014
Comparative and International Law Journal of Southern Africa - Volume 47, Issue 1, 2014
Volumes & issues
Volume 47, Issue 1, 2014
Author Gustav BrinkSource: Comparative and International Law Journal of Southern Africa 47, pp 1 –37 (2014)More Less
China has traditionally been treated as a non-market economy for purposes of anti-dumping investigations. The result was that countries determined whether dumping was taking place by comparing the export price from China with the normal value established in a third country. The European Union (EU) also determined the export price from China on the basis of the average export price from that country unless an exporter met specific requirements set for the EU's 'individual treatment' standard. China challenged these practices both in the World Trade Organisation (WTO) and in European courts, while the South African International Trade Administration Commission (ITAC) appealed a decision from the High Court on how it had to treat imports from China. The Appellate Body of the WTO ruled that China's accession agreement to the WTO did not provide for the determination of export prices on any basis other than each individual exporter's own prices, unless the investigating authority made a specific finding that two or more parties are related, in which case those parties could be treated as a single entity. Before the European Court of Justice (ECJ), in an appeal lodged by the Council of the European Union, the ECJ found that the Council could not equate 'government control' in a company with 'government interference', and that the Council had to make a specific finding as regards interference before it could find that a company was not operating under market conditions. In South Africa, the Supreme Court of Appeal found that there was no duty on ITAC to consider any information submitted by parties to show that exporters in China were operating under non-market conditions, thus paving the way for ITAC always to treat cooperating exporters as operating under market conditions in disregard of the provisions of the applicable legislation. The verdicts in these three fora have significantly altered the way in which future anti-dumping investigations will be conducted against Chinese exporters, and will allow those exporters greater access to the EU and South African markets. It is submitted that while the decisions in the WTO and the ECJ are correct, the Supreme Court of Appeal in South Africa delivered an incorrect decision in the ITAC appeal, and in so doing rendered parts of the law redundant.
Gravity as a requirement in international criminal prosecutions : implications for South African courtsAuthor Gus WaschefortSource: Comparative and International Law Journal of Southern Africa 47, pp 38 –63 (2014)More Less
The responsibility to bring perpetrators of international crimes to justice lies first and foremost with the municipal criminal justice systems of each state. The Rome Statute relies on the concept 'gravity' on four primary levels: 1) for institutional legitimacy; 2) situational gravity for the exercise of prosecutorial discretion; 3) as a precondition to admissibility; and 4) as a substantive component of each of the Rome Statute crimes. In relation to prosecutorial discretion and admissibility, the Rome Statute uses the concept 'gravity' as a device with a primary aim of preventing the International Criminal Court's (ICC) limited capacity from being usurped by less severe infringements of international criminal law. Municipal jurisdictions are not hampered by an inherently limited capacity, as is the case before the ICC. As such, gravity is to be applied mutatis mutandis to municipal prosecutions in a manner suited to the nature of municipal criminal justice systems and the demands of justice. This contribution concludes with an analysis of 'gravity' in South African courts in the context of prosecutions of international crimes. Nevertheless, the broader points made hold true equally for a number of jurisdictions internationally, and in particular, those jurisdictions that adhere to a common law tradition.
Author Alexander TraumSource: Comparative and International Law Journal of Southern Africa 47, pp 64 –88 (2014)More Less
This article focuses on two seminal moments that shaped the United States and South Africa's respective trajectories on the hate speech debate. For the United States, this moment was the so-called New Deal settlement, an informal, unspoken arrangement where the court deferred to Congress in its interpretation of the Constitution's structural provisions - such as federalism and the separation of powers - while reserving the right to defend individual rights more aggressively. The New Deal settlement created the conditions for the court to enforce the country's commitment to individual rights via the Bill of Rights on more robust and unapologetic terms. The court's subsequent approach to hate speech is but an unintended consequence of this New Deal. Coming nearly sixty years after the New Deal, the formation of a constitution 'based on democratic values, social justice and fundamental human rights' served as South Africa's own version of a settlement'. South Africa's hate speech jurisprudence demonstrates the inherent tension embedded in this settlement, in which the democratic value of speech conflicts with other competing Constitutional values such as dignity and equality. This article examines each country's hate speech jurisprudence through the prism of these 'moments', arguing that the divergence of these systems is a function not merely of the different languages or structure of the two countries' constitutions, but rather, is born of unique historical and cultural contexts.
Source: Comparative and International Law Journal of Southern Africa 47, pp 89 –108 (2014)More Less
The political turmoil that Zimbabwe has gone through in the last two decades has affected most of its institutions, especially the judiciary. It is thus no surprise that it was one of the targets for reform during the last constitution-building process that recently culminated in the adoption of a new Constitution. This paper attempts to assess the role that the Judicial Service Commission will play under the new constitution to restore the battered credibility of the Zimbabwean judiciary.
The mechanisms of judicial selection are an important element of an independent judiciary and a wide range of judicial selection systems are in use across the world. This in itself is a recognition of the fact that there is no perfect or ideal system of judicial selection. Zimbabwe's new Judicial Service Commission will be assessed against internationally recognised benchmarks. This paper will also examine the popular use of the judicial service commission model in the selection of judges across the civil and common law divide which are the leading legal traditions in the world. It starts by considering the emerging trends in the establishment of judicial service commissions generally before focusing on the key characteristics of judicial service commissions. The analysis of the new judicial appointments system is preceded by a brief overview of the pre- and post-independence judicial selection processes. In assessing the prospects for an efficient, competent and independent judiciary to emerge from the new judicial service commission, a number of issues such as its composition, the appointment of its members, the status of the commission and its operating procedures are examined. The paper concludes that if implemented fully, Zimbabwe's new judicial selection process offers better prospects for enhancing the independence of the Zimbabwean judiciary.
Fighting the 'resource wars' in the Democratic Republic of the Congo : an exploratory diagnosis of the legal and institutional problemsAuthor James TsaboraSource: Comparative and International Law Journal of Southern Africa 47, pp 109 –128 (2014)More Less
For the past two decades, the quest by state and non-state actors to profit from war through illegal natural resource exploitation has raised economic and financial agendas to prominence in the waging of war on the African continent. The desire by conflict actors and private domestic, regional, and international networks to access, exploit, and control natural resource exploitation patterns in conflict areas, has mainly targeted extractive mineral resources in high demand on the global market. This phenomenon has consequently redefined and reshaped the nature of armed conflict in Africa to which most major conflicts - such as the DRC's war waged between 1998 and 2004, and the intermittent armed rebellions witnessed between 2004 and 2010 - bear testimony. As illustrated by the DRC's wars, characterised by illegal natural resource exploitation, African wars have over the years followed different patterns and witnessed the involvement of an increasing number of different actors.
The neglected aspects of the International Court of Justice's Wall Opinion on the consequences of internationally wrongful acts : case notesAuthor G.N. BarrieSource: Comparative and International Law Journal of Southern Africa 47, pp 129 –136 (2014)More Less
A decade ago the International Court of Justice's (ICJ) Advisory Opinion on the legal consequences of Israel's building a wall in the occupied Palestinian territory generated considerable comment. Most of this comment focused on the political ramifications of the Opinion and on the vociferous opposition it met from the United States. Very little, if any, attention has, however, been directed at the ICJ's reiteration of its findings the Chorzow Factory case in which the court set out the consequences of an internationally illegal act. Scant mention has also been made of how the ICJ applied the International Law Commission's 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts in its decision on 'the Wall'. There appears to be little doubt that since the onset of the twenty-first century, political issues have overshadowed the remarkable way in which the ICJ set out the legal consequences arising from internationally wrongful acts. This note attempts to emphasise the forceful exposition by the ICJ on state responsibility - an exposition deserving far greater attention than it has received to date and which offers an excellent precedent for future decisions on international wrongs committed by one state against another.
Early termination of fixed-term employment contracts in Botswana : revisiting Rakhudu v Botswana Book Centre Trust : case notesAuthor Joseph B. AkoonyatseSource: Comparative and International Law Journal of Southern Africa 47, pp 137 –153 (2014)More Less
In July 2005 the Court of Appeal of Botswana delivered a judgment in a case where an employee employed on a fixed-term contract had been dismissed from employment prior to the expiry of the agreed duration. The employee had committed no act of breach, and the employer had advanced no reason for terminating the contract of employment. In the course of its judgment, the Court of Appeal made a finding that at common law, absent an express or implied term to the contrary, and provided due notice is given, a fixed-term contract of employment may be terminate before the expiry of the agreed time frame, without having to provide a valid reason. That finding has since been accepted and applied by the High Court of Botswana as binding judicial precedent. This article interrogates that finding, and argues that at common law, a fixed-term contract of employment may not be lawfully terminated prematurely in the absence of a valid reason.