South African Law Journal - Volume 127, Issue 4, 2010
Volume 127, Issue 4, 2010
Author Hugh CorderSource: South African Law Journal 127, pp 571 –580 (2010)More Less
It is understandable that no great fuss has been made of the hundredth anniversary of the establishment of South Africa as a nation state within its current borders (through the South Africa Act 9 Edw VII, ch 9). The Act of Union, after all, while it represented a triumph for those arguing for the formal reconciliation of 'Boer and Brit', marked much more negatively the exclusion of the majority of the new country's population from any effective say in the institutions of government. Not only were the proponents of federalism, which might have allowed the less conservative leadership in the Cape Colony to retain a degree of autonomy through which to pursue government based on individual worth, soundly defeated, but the elements of non-racial government preserved in the Cape franchise arrangements (and to a lesser extent, those of Natal) were seen as provisions to be protected as a dying species, rather than as bridgeheads for their expansion more widely within the Union.
Rationality review of legislation and executive decisions: poverty alleviation network and Albutt : notesAuthor Alistair PriceSource: South African Law Journal 127, pp 580 –591 (2010)More Less
In a series of judgments, the Constitutional Court has developed a general principle of constitutional law that every law and every exercise of public power should not be arbitrary, but instead should be rational (see, for example, S v Makwanyane 1995 (3) SA391 (CC) para 156; New National Party v Government of South Africa 1999 (3) SA 191 (CC) paras 19 and 24; Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of South Africa 2000 (2) SA 674 (CC) paras 85 and 90; United Democratic Movement v President of South Africa (No 2) 2003 (1) SA 495 (CC) para 55; and Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) paras 74-9). In sum, when a court applies this constitutional principle of rationality to a legislative provision or an exercise of public power, it is obliged to decide whether the provision or conduct is irrational or arbitrary, and if the court so decides, to declare it unconstitutional and invalid. The Constitutional Court has also held that the constitutional requirement of rationality (as opposed to rationality under the Promotion of Administrative Justice Act 3 of 2000 ('PAJA')) is justified by the principle of legality, which in turn is justified by the constitutional value of the rule of law (see, for example, Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA374 (CC) paras 56-8; Pharmaceutical Manufacturers (supra) para 85).
Is the constitutional court wasting away the rights of the poor? Nokotyana v Ekurhuleni Metropolitan Municipality : notesAuthor David BilchitzSource: South African Law Journal 127, pp 591 –605 (2010)More Less
The right to have access to adequate sanitation is not expressly provided for in the South African Constitution. In fact, virtually no international human rights instrument provides expressly for this right. This is a strange omission given the fact that individuals, if they are to function normally, have a fundamental bodily need to excrete a certain amount of bodily waste every day (whether in the form of bodily fluids or faeces). Such waste, if not disposed of in a hygienic manner, has the potential to contaminate food and water sources and to create health and environmental hazards for individuals and communities. For example, in South Africa diarrhoea is the third highest cause of death, and this disease is linked directly to poor sanitation (CSIR 'Diarrhoea third biggest killer in South Africa' available at http://www.csir.co.za/publications/pdfs/09_pdfsam_SSNovforweb_DIARRHOEA.pdf, accessed on 15 June 2010). Children are even more severely affected by a faecally contaminated environment, with diarrhoea being recognised by the World Health Organisation (WHO) and UNICEF as a major killer of children under the age of five (South African Water Research Commission 'Rural poor struggling up the sanitation ladder' available at http://www.wrc.org.za/Pages/DisplayItem.aspx?ItemID=6083&FromURL=%2fPages%2fKH_WaterWheel.aspx%3fdt%3d4%26ms%3d55%253b, accessed on 15 June 2010). What makes such statistics unfortunate is that the Director General of the WHO has stated that '[w]e have today a full menu of low cost technical options for the provision of sanitation in most settings' (ibid).
Proving unworthiness to inherit because of criminal conduct of a beneficiary : the rule in Hollington v Hewthorn : notesAuthor Michael Cameron Wood-BodleySource: South African Law Journal 127, pp 605 –608 (2010)More Less
Danielz NO v De Wet & another 2009 (6) SA 42 (C) highlights the ongoing significance of the rule of evidence that has come to be known as the rule in Hollington v Hewthorn, particularly in proceedings by an executor to prevent an unworthy person from benefiting from a deceased estate.
Author Jaco Barnard-NaudeSource: South African Law Journal 127, pp 609 –610 (2010)More Less
The two articles that follow represent the edited versions of two inaugural lectures, delivered in 2009 in the subject area of Jurisprudence, respectively at the University of Cape Town (Professor Anton Fagan) and the University of Pretoria (Professor Karin van Marle). These lectures arguably represent much of what is taught and written about in jurisprudence (or the philosophy of law) across post-apartheid South Africa. Both these lectures raise, in very different ways, the fundamental question about the kind of transformation the South African legal system (still) needs to undergo in order to be true to the post-apartheid constitutional mandate.
The secondary role of the spirit, purport and objects of the Bill of Rights in the common law's developmentAuthor Anton FaganSource: South African Law Journal 127, pp 611 –627 (2010)More Less
South African courts have always had the power to develop the common law. They have done so by overruling and interpreting existing rules, and by adding brand new ones. Previously, there were two kinds of reason for this kind of common-law development: justice and the common law itself. The South African Constitution has explicitly added a third kind of reason, namely the rights in the Bill of Rights. According to the South African Constitutional Court, the Constitution has by implication added a fourth kind of reason too, namely the spirit, purport and objects of the Bill of Rights.
This article argues that the Constitutional Court is mistaken. The Constitution certainly gives the spirit, purport and objects of the Bill of Rights a role in the common law's development. But the role is a more limited one than the Constitutional Court supposes. Contrary to the Constitutional Court's assertion, the spirit, purport and objects of the Bill of Rights are not meant to serve as independent reasons for developing the common law, alongside justice, the common law and the rights in the Bill of Rights. Instead, they are to serve only as tie-breaker reasons when the rights in the Bill of Rights, justice and the rules of the common law are indeterminate. That is, when the rights in the Bill of Rights, justice and the rules of the common law justify not only one way, but rather several alternative ways, of developing the common law, the spirit, purport and objects of the Bill of Rights may provide reasons for preferring one of those ways of developing the common law over the others.
Author Karin Van MarleSource: South African Law Journal 127, pp 628 –645 (2010)More Less
In this article the author raises a few ideas concerning jurisprudence, academic friendship and community, and the university as heterogenous public space. She warns against overzealous belief in and reliance on a kind of rationality that results in functionalism. In following the distinction between 'optimal' and 'true' philosophy an argument for jurisprudence as a continuous engagement with complexity is proposed. Drawing on aesthetic examples she reflects on the becoming of a post-apartheid jurisprudence with reference to notions of slowness, memorial constitutionalism, transformative constitutionalism and refusal.
Concerning friendship, the author discusses the significance of friendship, democracy and community for not only academic teaching and research but also academic interaction and collegiality. In connection with the argument on jurisprudence and against the background of Derridean insights, a philosophical engagement with friendship and democracy is supported. Finally an argument is made for the university as a heterogenous public space that should encourage ongoing deliberation and contestation. It is contended that a certain understanding of democracy and friendship is crucial for the functioning of a university as a truly heterogenous space and not one that continues hegemony. In conclusion the author, following Hannah Arendt, calls for jurisprudence in particular and the university on a wider level to engage with complex thinking.
Author P.J. BadenhorstSource: South African Law Journal 127, pp 646 –672 (2010)More Less
This article examines the theoretical framework and policy reasons for the legal development that took place from private ownership to public ownership of minerals in situ in South African law. Ownership of minerals in situ in present day South Africa is determined by the Mineral and Petroleum Resources Development Act 28 of 2002. The holders of the respective rights are explained and an attempt is made to identify the unknown holders of ownership of minerals in situ in the South African law by comparing it with the Australian system. In the theoretical analysis, the rights, entitlements and objects to be found in both systems are set out. An attempt is made to find answers in Australian law for the omissions in the present day mining law of South Africa. The article?s methodology attempts to fill the gaps where necessary rather to than provide a complete comparative analysis of the two systems.
Author Malcolm WallisSource: South African Law Journal 127, pp 673 –693 (2010)More Less
The article explores the current approach to contractual interpretation and contrasts it with the way ordinary readers understand documents. It suggests that the focus on a search for the intention of the parties is an unrealistic exercise that disguises what courts actually do when construing written contracts. It advocates an acceptance of an objective approach to interpretation of contracts based on the reasonable reader's approach to the wording of the contract and suggests that this helps to remove the mystique with which lawyers surround the task of interpretation.
Avoiding the pitfall encountered by the Canadian courts when assessing the admissibility of unconstitutionally obtained evidence in criminal trials in South Africa - a proposed alternative admissibility frameworkAuthor Dane AllySource: South African Law Journal 127, pp 694 –724 (2010)More Less
This article undertakes a comparative analysis of s 24(2) of the Canadian Charter and s 35(5) of the Constitution of the Republic of South Africa, 1996. These provisions govern the admissibility of unconstitutionally obtained evidence in criminal trials. The s 24(2) admissibility framework has on more than one occasion been adapted in order to strike a balance between the societal interest in rights protection and the societal interest in crime control. It is argued that s 35(5) seeks to achieve a similar goal. In order to achieve this purpose, the South African Supreme Court of Appeal has adopted two dissimilar admissibility frameworks. The author considers the strengths and the weaknesses of these admissibility structures and proposes an alternative admissibility framework by having regard to the primary rationale of the provision and the textual nuances that give particular meaning to specific phrases contained in s 35(5), and without disregarding the values it was designed to enhance.
Constitutional deference, courts and socio-economic rights in South Africa, Kirsty McLean : book reviewsAuthor Dennis DavisSource: South African Law Journal 127, pp 725 –728 (2010)More Less
In 1996 South Africa joined a number of countries which had included justiciable socio-economic rights in their constitutions. Given the vast disparities in wealth, grinding poverty and the African National Congress's critical document, The Freedom Charter of 1955, it was inevitable that the Constitution of the Republic of South Africa, 1996 would not be restricted to the protection of first and second generation rights.