Comparative and International Law Journal of Southern Africa - latest Issue
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Volume 49, Issue 3, 2016
The South African Constitutional Court’s death penalty and rendition cases as tools for litigants abroadAuthor Laura van den EyndeSource: Comparative and International Law Journal of Southern Africa 49, pp 369 –386 (2016)More Less
Several cases of the South African Constitutional Court have become classics in comparative constitutional law scholarship and the Court’s participation in global judicial dialogue has been documented. Indeed, since the Court’s founding, Justices have referred to and discussed many foreign judicial decisions. But how has the Constitutional Court’s case law influenced debates before other courts? This contribution scrutinises some landmark cases of the US Supreme Court and the European Court of Human Rights on two issues similar as those decided by the South African Constitutional Court to see whether the South African precedents were considered. It is found that South African precedents, which themselves encapsulate external influences, now serve litigants worldwide to argue their point of views. The groundbreaking cases coming from a relatively young Court are used, mainly in amicus curiae briefs, as resources to advance the interpretation of human rights. However, these references do not (yet?) find an explicit and engaging echo in the judgments of the US Supreme Court and the European Court of Human Rights.
The constitutional phenomenon of parliamentary privilege and immunity in South Africa : a comparison with jurisdictions in Britain, Canada and FranceAuthor Mbuzeni MathenjwaSource: Comparative and International Law Journal of Southern Africa 49, pp 387 –408 (2016)More Less
Whereas the doctrine of parliamentary privilege originated in the United Kingdom where it was originally applied to ensure unhindered service to the King by his advisors, this article shows that the privileges and immunity of parliament are interpreted differently in different countries. It further shows that different countries practise different types of privileges and parliamentary immunity. Britain, Canada and South Africa practise nonaccountability immunity which protects members of parliament from civil and criminal liability, whilst France, in addition to non-accountability, also practises a form of inviolability which protects members of parliament from criminal liability arising from any criminal act committed outside of parliament while they are sitting members. This comparative study shows that the content of privilege and immunity comprises exclusive cognisance of a parliament that protects its integrity and so enables it to regulate its own affairs, and the freedom of speech and debates to such an extent that members are protected in the discharge of their parliamentary duties. The scope of the privilege is limited to anything said in, produced before, or submitted to parliament or its committees and which involves the business of parliament. Protection is not limited to members of parliament: national legislation can extend the privilege to other personnel who are linked to the business of parliament. Parliamentary business is not confined to transactions taking place within the precincts of parliament, since parliament can sit anywhere outside its normal seat. The interpretation of parliamentary privilege in foreign jurisdictions sheds light on the interpretation and illuminated the meaning of the privileges and immunities of parliament in South Africa under the 1996 Constitution.
Author Ernani ContipelliSource: Comparative and International Law Journal of Southern Africa 49, pp 409 –427 (2016)More Less
The BRICS is characterised as an extremely heterogeneous international cooperation model which demonstrates a high level of complexity as it is composed of countries having different cultural backgrounds which adapt their differences into a factor that sustains the existence of the grouping and achieves its common goals. In a specific way, the comparative investigation of the distinct perceptions of State and Constitution appear to be a useful research approach better to understand the international institutional complexities. Therefore, to explain the BRICS phenomenon I explore the perception of State and Constitution for each BRICS member using a comparative approach which enables a better understanding of internal differences and how these influence the construction of the collective identity of the grouping and its forms of cooperation. This article aims to analyse, from a comparative perspective, the different perceptions of State and Constitution in BRICS members so as to identify the constituent elements of their diversities and heterogeneity in addressing one of the principal topics of the current international political agenda – global governance.
Author Estelle HurterSource: Comparative and International Law Journal of Southern Africa 49, pp 428 –454 (2016)More Less
In recent years much attention has been given to the ever-increasing phenomenon of litigants in person (also referred to as self-represented litigants or pro se litigants) in civil practice within common law countries, particularly in the United States of America, Canada, Britain and Australia. Although the common law has long accepted a litigant’s right in civil proceedings to litigate in person, legal representation has more or less been the norm for centuries. Despite a substantial body of research material that has been steadily building up around various aspects of self-represented litigants, many questions have still not been answered definitively, including the reason for the growth of this phenomenon. However, what is certain is that this phenomenon is placing all aspects of the various justice systems under tremendous pressure, including the adversary system itself. Although various common law countries have made huge strides in trying to understand the phenomenon, the various role players in South Africa’s judicial administration have paid little or no attention to litigants in person (despite a regular appearance of such litigants in our courts). As it is probably only a matter of time before our legal system comes under the same pressure experienced elsewhere, it is the purpose of this article to offer proposals to first, ameliorate and secondly, to manage the consequences of such expected pressure based on the experience of other common law countries.
Author Nqosa L. MahaoSource: Comparative and International Law Journal of Southern Africa 49, pp 455 –476 (2016)More Less
The question of bringing justice closer to citizens is often regarded either from an equidistant perspective, or from the angle of affordability. The epistemological question of whether notions of justice practised by constitutional institutions resonate with the value systems and cosmological perspectives of the citizens, is shrouded in the mists of the jurisprudential discourse of most post-colonial jurisdictions. This article contends that the dominant human rights jurisprudence in post-colonial Africa remains only tangentially relevant because it is moulded by the inherently exclusionary constitutive rules associated with Western enlightenment. African juridical principles provide more appropriate social justice for the vast majority of the African citizenry as they speak to a social organisation underpinned by the values of belonging, sharing, and restoration of social equilibrium.
Tapping into a quarter-century’s judicial experience with the Canadian General Anti-avoidance Rule (GAAR) : some insights for South AfricaSource: Comparative and International Law Journal of Southern Africa 49, pp 477 –505 (2016)More Less
Increased tax avoidance globally has led the Organisation for Economic Cooperation and Development (OECD), with the sanction of the G20 countries, to launch an action plan on Base Erosion and Profit Shifting (BEPS), to assist and support governments across the world in an endeavour to counter tax avoidance. Anti-avoidance measures include legislative, judicial and administrative techniques. This article reviews the use of the judicial approach adopted in Canada, as this country has a long-established General Anti-avoidance Rule (GAAR) and is considered to be at the forefront in combating abusive tax avoidance. Although the previous South African GAAR had led to numerous judicial decisions, the current GAAR provisions have not yet been considered by South African courts. Through an evaluation of the Canadian judiciary’s quarter of a century experience with its GAAR, the article seeks to draw insights from the Canadian courts regarding the application of their GAAR. Notwithstanding the uncertainty surrounding the Canadian GAAR as a legal norm, it is submitted that the Supreme Court of Canada’s seven-step guide to the application of the GAAR can assist South African courts to distinguish objectively between legitimate tax planning and abusive tax avoidance.
Author Jan L. NeelsSource: Comparative and International Law Journal of Southern Africa 49, pp 506 –507 (2016)More Less
This book constitutes a fascinating account of the relationship between private international law and cultural heritage law. The author argues in favour of a value-based approach to private international law in this regard (both in respect of jurisdiction and applicable law), inspired by the ethical standards that underlie cultural heritage law (see eg 340). In the course of the argument, interesting remarks are made about choice of law methodology in general, for instance, that the ‘divergence between multilateral and unilateral conflicts rules in private international law is a matter of degree rather than a strict dichotomy’ (88; also see 106).