SA Publiekreg = SA Public Law - latest Issue
Volumes & issues
Volume 24, Issue 2, 2009
Source: SA Publiekreg = SA Public Law 24, pp 235 –238 (2009)More Less
Some postcolonial African states, especially 'big' states, have variously been labelled unstable, inefficient, weak, dysfunctional, disintegrating, failed, collapsed, decaying states, to the point of being considered 'countries without states'. Indicators for such ruin are listed as difficulties with maintaining sovereignty and territoriality, dissolution of state institutions, privatisation and decline of security and of public resources and services, manipulation of public means of coercion, diffraction of the usurped means of violence, extra-judicial powers exerted on citizens, an unstable legal environment, a multiplicity of concurrently operating legal systems, fragmentation of government, and the pervasiveness of clientelism, patronage, or criminal networks.
Source: SA Publiekreg = SA Public Law 24, pp 239 –268 (2009)More Less
The line engraving (based on an earlier watercolour ) by William Blake that features on the poster announcing the Symposium 'States of Statelessness' centrally features two mythical figures of the state : Behemoth and Leviathan. Blake's image captures several aspects associated with the figure of the Leviathan. First among them, capturing the bipartite realms of Behemoth and Leviathan, are the references to genesis, contained in the apocryphal (Septuagint translation of the Old Testament) text of 2 Esdras.
Author Johan Van der WaltSource: SA Publiekreg = SA Public Law 24, pp 269 –296 (2009)More Less
Ulrike Kistner's paper presents us with a carefully constructed argument on the relation between Agamben and Schmitt. The crux of the argument is that Agamben's reliance on Schmitt constitutes a betrayal of Schmitt's thinking on sovereignty that has dire consequences for the political and politics.
According to Kistner, Schmitt's articulation of the political in terms of the sovereign decision that has to be taken in the state of exception constitutes a crucial delimitation of the sphere and purpose of sovereignty in political life. Schmitt's sovereign opens up a zone beyond ordinary politics and law that does at least three good things, or rather, one good thing with three dimensions:
(1) Sovereignty, understood in terms of a state of exception, frames and conditions the realm of the regular and ordinary and thus allows for the very possibility of the regular rule of law. Without the sovereign exception, regular rule of law becomes impossible, as (2) and (3) explain further.
(2) The articulation of sovereignty in terms of a state of exception constrains it. It binds it to the state of exception and thus removes it from ordinary politics under the regular rule of law. It constrains the exceptional to the exceptional and prevents it from becoming the regular exception.
(3) The articulation of sovereignty in terms of a state of exception constrains the regular to the regular and prevents it from becoming the exception that is again, the regular exception.
Author Stewart MothaSource: SA Publiekreg = SA Public Law 24, pp 297 –327 (2009)More Less
Walter Benjamin's enigmatic reflection on Paul Klee's painting 'Angelus Novus' urges us to question the idea of a progressive teleological view of history, and it may help us to contemplate the legacy of a colonial past, the challenges of decolonisation, and the possibility of a postcolonial future. What approach are we to take to colonial history, to its events and catastrophes? This is a pressing question, especially when brought to bear on sovereign events and catastrophes. The problem of colonial sovereignty might be observed from the vantage point of Walter Benjamin's angel of history. Should we perceive an imperial usurpation, its establishment of a racist colonial state and transition to a postcolony as a chain of events or as a single catastrophe piling wreckage upon wreckage? The difference might be that the former suggests an inexorable process of violence and counter-violence, imperial excess and anti-colonial struggle, the re-ordering of imperium and the establishment of new tyrannies in the form of 'private indirect government'; while the latter imagines a singular sovereign event that needs to be reversed if the ongoing disaster is to be arrested.
Author Anthony CourtSource: SA Publiekreg = SA Public Law 24, pp 328 –351 (2009)More Less
Much of twentieth century Western scholarship about Rwanda has been informed by simplistic conceptual assumptions and problematic interpretations of complex historical processes and events. During the post-independence era, following the revolution of 1959-1962, many assumptions and myths about Rwanda's pre-colonial and colonial histories were challenged by a new generation of scholars familiar with the country and its regional context. Following the 1994 genocide, yet another layer of scholarship has been added about the remarkable history of the region. Although this renewed interest has introduced a range of new perspectives, there has been a tendency to focus on the events of 1994 while making little use of the foundational research contained in the post-independence literature. This approach has been marred by a growing tendency to view all of Rwandan history through the distorting prism of the 1994 genocide. Journalists, diplomats, humanitarian workers and academics, often with no prior interest in the region, and with limited knowledge of Rwandan society, history and politics, actively contributed towards what Johan Pottier describes as 'a systematic re-imagining of Rwanda's history', with analysts and commentators opting 'for "easy handles" on some very complex issues'. As Timothy Longman notes, one consequence of this narrow focus has been that 'many of the recent rash of publications simply rehash myths and inaccuracies from earlier accounts of Rwanda that have long been disproved, serving more to obfuscate than to clarify the situation'. This has been compounded by a tendency to dismiss post-independence research as 'all bad', rather than to critically engage with it. Much of that research is an indispensable source and guide for those who wish to arrive at an informed understanding of Rwandan history and society.
The State and politics in a post-colonial, global order : reconstruction and criticism of a Levinassian perspectiveAuthor Ernst WolffSource: SA Publiekreg = SA Public Law 24, pp 352 –369 (2009)More Less
The aim of this article is to formulate a credible interpretation of what Levinas' general perspective would have been on the State and politics in the current post-colonial, global order - a context about which he wrote very little explicitly. This will be done in full recognition of the eminent position that the ethics of the face-to-face relation with the other plays in the constitution of the political in his work. A reading of Levinas' interpretation of (aspects of) Lévy-Bruhl's and Lévi-Strauss' ethnographies will serve to gain access to Levinas' most pressing concerns. These are the threats posed to the other by the tendencies of identitary totalitarian violence and of indifference in the use of political power. It will be argued that these concerns are to be considered as shaping his philosophical project decisively. Having established this clearly political form of his work, attention will be given more directly to the question of statelessness, understood as the undermining of State sovereignty. From the reconstructed Levinassian perspective, the undermining of State sovereignty would be subject to an ambiguous evaluation. This in turn makes a reconstruction of a Levinassian 'negative political theology' possible. The article concludes with a serious indictment of the implications of Levinas' understanding of just politics and of sovereign power.
Author Wessel Le RouxSource: SA Publiekreg = SA Public Law 24, pp 370 –399 (2009)More Less
The nature and benefits of democratic citizenship are undergoing fundamental changes as the old Westphalian division of the world into independent nation states is slowly giving way to new forms of empire, transnationalism, postnationalism and cosmopolitanism. As a result of political instability, ecological change and economic globalisation, states are increasingly forced to reconfigure their relationships with migrant populations that are growing both in size and in political mobilisation. These migrant populations frequently include a combination of economic migrants and refugees. From the perspective of the nation state, these liminal figures have always constituted temporary exceptions that must, at one point or another, be restored to a position of normality.
Normality in this context means the restoration of the full range of rights accompanying nation state citizenship, either by voluntarily returning, or being returned (repatriated), to the state of origin, or, by being fully assimilated and integrated into the host state. The local integration of migrants is often described as a triangular process with legal, economic and social dimensions. As a legal process, local integration means that migrants are granted a progressively wider range of civil, social and political rights and entitlements by the receiving state. According to Jeff Crisp, the test for successful legal integration, especially in the case of refugees, is whether migrants have acquired permanent residence status and, ultimately, through naturalisation, full citizenship and voting rights in their host country.
Author Karin Van MarleSource: SA Publiekreg = SA Public Law 24, pp 400 –406 (2009)More Less
Wessel le Roux's paper argues for new conceptions of citizenship. His starting point is a change in the old Westphalian world order that must give way to new forms of empire, transnationalism, postnationalism and cosmopolitanism. He critically reflects on the Constitutional Court decision in Richter. Willem Richer argued that he should be allowed to vote in the general elections of 2009 while working abroad. The Electoral Act allowed a special vote for voters absent at the time of elections for the purposes of a holiday, a business trip, attendance of a tertiary institution or an educational visit, or participation in an international sports event, but not for someone working abroad in a private capacity - in other words, the person is not working abroad for diplomatic or government purposes.
Author Hannes RoslerSource: SA Publiekreg = SA Public Law 24, pp 407 –432 (2009)More Less
The present article explains the task of bringing the German Civil Code, which came into force in 1900 as a consequence of nineteenth century legal science, in line with the German Constitution of 1949. Fifty-one years ago, in 1958, the highest German court resolved this issue in Lüth and gave its most important decision about the reach of constitutional rights and the importance of free speech. The Lüth case, which dealt with the boycott of a film by a former director of a Nazi film, is more than a a fascinating story of law. The German Federal Constitutional Court (Bundesverfassungsgericht [BVerfG]) also developed the indirect 'horizontal' application of constitutional rights to private law. This introduced the new concept of the primacy of constitutional law which has been noted and discussed around the world.
A debate as old as the hills : three arguments considered on whether constitutional review by the judiciary should be introduced in the NetherlandsSource: SA Publiekreg = SA Public Law 24, pp 433 –449 (2009)More Less
Most functioning democracies long ago settled the debate over constitutional review by the judiciary but, for over 150 years, the Constitution of the Netherlands has barred the judiciary from testing acts of parliament against the dictates of the Constitution and the presence of this provision has dominated constitutional thought and law in the Netherlands ever since. While such provisions were in vogue in the nineteenth century, they appear decidedly strange to the modern eye. Nevertheless, the bar on constitutional review is one of the foundational elements of the Dutch constitutional order.
Not surprisingly, the continued inclusion of section 120 is contended every time the notion of constitutional reform is proposed. The last grand revision of the Constitution was in 1983, and although the provision was affirmed by the constitutional legislature, many voices advocated its removal or dilution, including the Halsema Bill of 2002 which states the case for the partial lifting of the bar.
Can the introduction of constitutional review in the Netherlands be justified and should the changes put forward by the Halsema Bill be welcomed? These questions will be answered by an investigation of the legal landscape of the Netherlands related to the judicial review of higher law and of the bar on constitutional review, followed by a critique of three arguments likely to motivate the introduction of constitutional review.
Author Aifheli E. TshivhaseSource: SA Publiekreg = SA Public Law 24, pp 450 –485 (2009)More Less
The military court system has operated on its own for a very long time, generally ignoring the rules of natural justice and international law. Recently, this has been the subject of debate and litigation in a number of countries. Most of the challenges relate to the separate existence and lack of judicial independence of the military courts. Since the dawn of democracy in South Africa, the military judiciary has faced numerous challenges relating to judicial independence, and attempts have been made to transform the military judicial system. However, a number of challenges still remain that require further transformation of the system. The agenda for transformation of the military judiciary must be shaped by various factors and this agenda must be carried out in ways which do not undermine the military character of military courts.
Source: SA Publiekreg = SA Public Law 24, pp 486 –505 (2009)More Less
Water as a scarce resource is described by the International Committee on Economic, Social and Cultural Rights as follows :
Water is a limited natural resource and a public good fundamental for life and health. The human right to water is indispensable for leading a life in human dignity.
In the High Court case of Mazibuko v The City of Johannesburg it was argued by the respondents that 'access to pressurised unlimited water at a flat rate was unsustainable'. This case was brought before the Court by five residents of Phiri, one of the poorest areas in Soweto, who challenged the sufficiency of the City of Johannesburg's free basic water policy as be put in place. At the beginning of 2004, the residents of Phiri received notice that a prepayment water system would be put in place. In terms of the prepayment water system, each household was entitled to 6 free kilolitres of water per month. Once these six kilolitres had been consumed, the water supply was automatically shut off the consumer had to buy water credits in order to be supplied with water again. With an average of 13 or more people living on one property, it was contended by the applicants that the free basic water supply of six kilolitres per household per month was insufficient to meet everyone's basic household and sanitary needs.
Author B.C. NaudeSource: SA Publiekreg = SA Public Law 24, pp 506 –527 (2009)More Less
The police must inform arrested and detained persons about their rights in terms of the Constitution. If this information is not conveyed, the evidence obtained as a result of this omission could be excluded. It often happens that the police interact with a suspect, without that person yet being arrested or detained. During such interactions, there is a real possibility that suspects will incriminate themselves, but the Constitution does not give suspects the right to be informed about their rights. It is possible to argue that a suspect should be entitled to general fair trial rights and should therefore also be warned in terms of the Constitution. Alternatively, evidence that was obtained in the absence of the necessary warnings could also be excluded in terms of the common law discretion to exclude improperly or illegally obtained evidence on grounds of fairness and public policy. A better option, however, would be to entitle a suspect to be informed when he or she can be viewed as a detained person, even though not necessarily physically detained. Such an approach requires a broad interpretation of 'detention' that also focuses on the subjective belief of the person suspected of wrongdoing.
Thorny branches of the 'tolerated weed' : some remarks on the protection of journalists' sources in South Africa : journalAuthor Thea IllsleySource: SA Publiekreg = SA Public Law 24, pp 529 –544 (2009)More Less
The last decade has seen a worldwide upsurge in events that highlight a pivotal constituent of media freedom - the protection of journalists' sources. A recent groundbreaking report on the issue indicates that countries as wide-ranging as Luxembourg, New Zealand and El Salvador have recently adopted legislation to deal with the matter. Draft legislation is currently under consideration in the United States, Australia, Canada and the Netherlands. Courts in several jurisdictions have also had occasion to consider the matter, including the United States, Canada, Germany, Ireland and the United Kingdom. The European Court of Human Rights has dealt with the same matter on a number of occasions since it handed down its landmark judgment in Goodwin v United Kingdom, most notably in the recent cases of Tillack v Belgium, Voskuil v Netherlands and Sanoma Uitgevers v Netherlands. The International Criminal Tribunal for the Former Yugoslavia has also considered the issue in the, admittedly somewhat different, context of a testimonial privilege for a war correspondent.
Author Jeannie Van WykSource: SA Publiekreg = SA Public Law 24, pp 545 –562 (2009)More Less
The Subdivision of Agricultural Land Act was always a prime example of the extent to which to which the exercise of ownership can be limited by legislation and the Act was generally referred to by Property Law academics in that narrow context. Now, in the wake of the Constitutional Court decision in Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd, an entirely different perspective on the Act has arisen, along with a variety of questions and uncertainties, particularly in a constitutional context.
Ever since the enactment of the Repeal of the Subdivision of Agricultural Land Act, the applicability of SALA has been uncertain. The Repeal Act was never put into operation, suspending indefinitely the repeal of SALA. The uncertainty is compounded because there are views that the Act was, in effect, repealed by the Local Government : Municipal Structures Act, that it must be phased out to free up the land market and that exemption from its provisions is necessary in a land reform context.
Source: SA Publiekreg = SA Public Law 24, pp 563 –567 (2009)More Less
The Constitutional Reform Act of 2005 (CRA) brought with it a number of changes to the United Kingdom's unwritten constitution such as reducing the powers of the office of Lord Chancellor. However, the most noteworthy reform undoubtedly relates to the creation of the new Supreme Court. This Court, which started its activities on 1 October 2009, replaces the Appellate Committee of the House of Lords and thereby abolishes the House's judicial function. This reform brings to an end the long-standing debate about whether it is appropriate for the House of Lords to function as a court in addition to its primary legislative function. Voices calling for such a clear separation of the legislative and judicial branches of government are nothing new as proposals to this effect were put forward as long ago as the nineteenth century.
HIV / AIDS, vulnerability and the constitution : can access to social assistance protect the most vulnerable? : journalAuthor Amanda Pieterse-SpiesSource: SA Publiekreg = SA Public Law 24, pp 568 –587 (2009)More Less
The HIV / AIDS pandemic has devastated the African continent, specifically South Africa, to the point where it has shaken the foundation of society - the family. The pandemic has reconstructed family dynamics and exacerbated the position of the most vulnerable in society, namely, women, children and the elderly.
This article explores social vulnerability in the context of HIV / AIDS and the relevance of socio-economic rights, specifically the right to access to social assistance as a means to address current vulnerabilities.
HIV / AIDS is first and foremost a human rights issue and a rights-based approach will help to address the vulnerabilities currently associated with the disease. Ultimately, the paper will argue for aggressive social intervention by the state, in accordance with its constitutional obligations to assist society to cope with the disease.
Source: SA Publiekreg = SA Public Law 24, pp 588 –610 (2009)More Less
Grave concerns were raised as to whether the overall land reform programme embarked upon in 1994 has really been successful (Van der Walt 'Hoekom grondhervorming misluk' Burger (2009-08-28) 28; Barnard 'Zuma moet ingryp oor Distrik Ses' Burger (2009-08-14) 12). Specific concern exists over the slow pace of redistribution of agricultural land and the number of farmers who, after having received farm land, were unable to farm their land productively (Cillie 'Sukkelboere verloor grond' Sake Burger (2009-08-18) 1). In this regard government has indicated that it will make available additional financial support, totalling R146 million, to about 500 farmers in dire need of funds in order to proceed with farming.
Source: SA Publiekreg = SA Public Law 24, pp 611 –621 (2009)More Less
Die verslagtydperk word deur geweld deur polisie teen verdedigingsmaglede tydens stakings en teen munisipale werkers gekenmerk (Van Rooyen en Du Toit 'Polisie skiet op soldate' Beeld (2009-08-27) 1; Coetzee 'Hardhandige polisie-optrede het geweld vererger tydens diensleweringbetogings, wys navorsing' Beeld (2009-09-03) 6). Skole in die Oos-Kaap het gevra dat lyfstraf weer ingebring word omdat dit baie moeilik is om orde in dié skole te handhaaf (Legalbrief Today (2009-08-11) www.legalbrief.co.za).
The right of blind and visually impaired citizens to vote in secret : is there a duty to do more? : case notesAuthor Thembinkosi Wilson MasekoSource: SA Publiekreg = SA Public Law 24, pp 623 –639 (2009)More Less
The right to vote in South Africa has always been accompanied by a number of controversial disqualifications. During the pre-democratic era of colonialism and apartheid, all black South Africans were disqualified as voters on the basis of their racial classification.
It is, therefore, not surprising that the post-apartheid Constitution openly declares itself founded on the value of 'universal adult suffrage' according to a 'national common voters' roll,' nor is it surprising that the Constitution especially entrenches the right of every adult citizen to vote in elections. The Constitution furthermore specifically recognises the right to vote in secret.