Comparative and International Law Journal of Southern Africa - latest Issue
Volumes & issues
Volume 49, Issue 2, 2016
South Africa's failure to arrest President al-Bashir : an analysis of the Supreme Court of Appeal's decision and its implicationsAuthor Nikolaos PavlopoulosSource: Comparative and International Law Journal of Southern Africa 49, pp 164 –181 (2016)More Less
The ICC and many of its state parties disagree over whether President al-Bashir is entitled to respect for his immunities from those states. On the one hand, the ICC has requested al-Bashir's surrender, while, on the other, its state parties have refused to cooperate. The ICC's Pre-Trial Chamber has provided various justifications for its stance - that state parties are obliged to surrender al-Bashir - the most recent relating to the effect of the SC referral which gave the ICC jurisdiction on al-Bashir's immunities. The African Union has, however, consistently held that its member states, including those that are party to the Rome Statute, remain obliged to respect its immunities. It is argued that South Africa's Supreme Court of Appeal avoided engaging with the core issues in this debate, namely the scope of the obligation to comply with ICC requests for arrest and surrender as well as the arguments adopted by the PTC in finding that al-Bashir's immunities need not be respected. The SCA's approach is unwarranted in light of domestic principles of interpretation and also unjustifiably undermines the customary international law on immunities ratione personae. Ultimately, the court's reluctant engagement with the international legal issues can only serve to undermine the coherence of the international legal system and perpetuate the harm the ICC is doing to itself in persisting that its state parties are obliged to arrest President al-Bashir.
Author Sanette NelSource: Comparative and International Law Journal of Southern Africa 49, pp 182 –222 (2016)More Less
The influence of social media has filtered through to every facet of our daily lives, including the workplace and employment relationships. There are an increasing number of cases where the messages of employees posted on social network sites have led to disciplinary proceedings or even dismissal. The traditional 'water cooler discussions' have now moved online where they have a greater impact - for all practical purposes there is now a permanent written record of communication and a potentially wider audience can be reached. The right to freedom of speech is not an absolute right - it has to be weighed against other rights, including the right to a good name and the right to privacy. In terms of an employment contract an employee undertakes to promote the interests of the employer. This means the right to freedom of speech must also be balanced against the rights of the employer. The misuse of social media by employees who post defamatory, undesirable, or offensive comments may defame the employer or co-employees and negatively affect the working environment. This article is a comparative study to determine how the courts have demarcated the boundaries of freedom of speech on social networking sites used in the workplace in order to determine whether there are guidelines that can be applied to the South African context.
Author Petra PerisicSource: Comparative and International Law Journal of Southern Africa 49, pp 223 –246 (2016)More Less
This article analyses the shift from the state-centric system of international law to the system in which other entities such as inter-governmental organisations, and individuals enter the sphere of international legal personality. The main focus falls on the influence of human rights development and the emergence of individual criminal responsibility on the international legal personality of an individual. In spite of the significant changes in the domain of international legal personality, the majority view remains that individuals have not gained the status of international law subjects. This conclusion is based on the notion that individuals, by having rights and duties under international law, acquire some form of international legal personality in certain areas, but that it is states which make this possible. As much as this holds true, the growing role of the individual in international law should be properly acknowledged. Although individuals are not likely ever to become international law subjects equal to states, such identity is not necessary for their recognition as international law subjects.
Author Saloni KhanderiaSource: Comparative and International Law Journal of Southern Africa 49, pp 247 –281 (2016)More Less
The WTO's Anti-Dumping Agreement operates as an exception to its member's core obligations with respect to non-discrimination. However, anti-dumping measures can only be applied if the relevant investigating authority has determined that the dumped imports have caused or are causing injury to the domestic industry. Accordingly, injury and causality determinations are fundamental in anti-dumping investigations. In the last WTO consultation involving South Africa, Brazil challenged South Africa's anti-dumping procedures as regards the injury determination and the consequent demonstration of a causal link between the dumped imports and the injury caused to the SACU industry. This paper analyses the most recent investigative procedures of the ITAC against the backdrop of settled WTO jurisprudence, and examines whether the ITAC, the investigating authority for anti-dumping, has been able to rectify the lacunae raised by Brazil, or whether it has continued to commit the same mistake in its subsequent investigations.
The classification of the transfer of intellectual property rights under a franchise agreement for purposes of consumption tax (VAT) : India and South Africa comparedSource: Comparative and International Law Journal of Southern Africa 49, pp 282 –304 (2016)More Less
Modern consumption tax systems, generally, differentiate between the supply of goods and services. As the intrinsic nature of goods and services differ, different tax rules apply to tax the sale, transfer, supply, or consumption of goods and services. Changes in science and technology, and new and innovative business trends, often lead to transactions that escape the tax collector. For consumption tax purposes, a further distinction between the various types of goods and services is necessary in order to avoid the erosion of the tax base. Also, special tax rules apply to the different classifications of goods and services. This is particularly so in jurisdictions with variable tax rates. It is, therefore, key to classify the transaction or product appropriately to apply the appropriate tax rules and rates. This article compares the classification of the transfer of intellectual property rights for purposes of service tax and sales tax in India and the classification of the transfer of intellectual property rights for purposes of value-added tax (VAT) in South Africa. In addition we briefly canvass the general classification of intellectual property rights.
Source: Comparative and International Law Journal of Southern Africa 49, pp 305 –351 (2016)More Less
The article analyses the nature of mediation clauses and agreements to mediate and their enforcement in the context of commercial mediation in South Africa. Recent jurisprudence from England suggests that courts still fail to understand how such agreements operate and there are instances when they are not as certain as parties and their advisors would like. The article analyses issues such as the survival of a mediation clause on the termination of the agreement in which it is contained, the distinction between agreements to mediate and agreements to agree or negotiate, the importance of the certainty of the procedure for the mediation, the relationship between certainty and good faith and the requirement of completeness. The article proceeds to discuss the critical importance that such clauses are presented as conditions precedent to litigation and do not attempt to oust the jurisdiction of the courts under article 34 of the South African Constitution. Remedies for breaching mediation clauses are discussed and recommendations offered as to how parties can enhance contractual certainty. The piece concludes with a legal and regulatory analysis that points to an emerging trend internationally and in South Africa towards obligating lawyers to advise disputing clients on the mediation option.
Upholding international migration law in difficult political circumstances : the case of Syrian refugees under the EU-Turkey agreement : noteSource: Comparative and International Law Journal of Southern Africa 49, pp 352 –368 (2016)More Less
Since the beginning of the conflict in Syria in March 2011, a huge number of refugees have risked and actually lost their lives in unseaworthy boats often operated by smugglers crossing the Aegean Sea in a desperate bid to reach Greece (Europe) via Turkey. This note provides insights into the main points of the March 2016 agreement between the EU and Turkey on this issue and discusses some key legal issues at stake in the context of the political situation within which the agreement has to function. The agreement is found to be a balancing act between 'international and European law in full', on the one hand, and 'pragmatics' on the other. This is so because reality requires us to accept that sometimes situations change so dramatically that the relevant legal systems are inadequate to deal with them, despite the good will of the regulators and the desire to live up to certain civilised standards. While in the eyes of some this is unforgivable, in our eyes it is partly forgivable subject to the conditions we propose here.