Law, Democracy & Development - Volume 11, Issue 2, 2007
Volumes & issues
Volume 11, Issue 2, 2007
Source: Law, Democracy & Development 11, pp XI –XX (2007)More Less
This edition of Law, Democracy and Development covers a wide range of topics, from the principles applicable to the international transfer of children via the adoption process, to the balancing of a mortgagee's security interest with a homeowner's security of tenure. The diversity of sources of law covered in the articles is remarkable, including the African Commission on Human and Peoples' rights, the South African Constitution, international conventions in respect of children's rights, national legislation, and decisions of the South African Constitutional Court and the Supreme Court of Appeal as well as other courts in Africa. The policies that guide these laws or flow from them are also closely examined in the articles. In addition, there are articles of a primarily theoretical nature.
Des sujets très divers sont traités dans cette édition de Law Democracy and Development, depuis les principes de transfert des enfants par le procédé d'adoption à l'échelle internationale jusqu'à la tentative de compromis entre l'intérêt de sécurité de l'hypothécaire et celui du propriétaire. La diversité des sources de la loi, traitée dans ces articles est remarquable, y compris le African Commission on Human and People's rights, la Constitution Sud-Africaine, les conventions internationales sur les droits des enfants, la loi nationale, et les décisions de la Cour Constitutionnelle de l'Afrique du Sud et de la Cour Suprême d'Appel aussi bien que d'autres cours en Afrique. Les règles qui guident ces lois et qui en sortent sont examinées de près dans ces articles. De plus, il y a des articles de nature essentiellement théorique.
Taking those with special housing needs from the doldrums of neglect : a call for a comprehensive and coherent policy on special needs housingAuthor Lilian ChenwiSource: Law, Democracy & Development 11, pp 1 –18 (2007)More Less
A growing awareness of the differentiation of need within the broad categorisation of the poor has led to an evolving focus on special needs or vulnerable groups, such as the elderly and the disabled. There is, therefore, an increasing need for government housing policies to reflect a constant awareness of, and to make provision for, the special housing needs of vulnerable groups. Accordingly, HIV / AIDS and special needs groups are high on the development agenda of South Africa and the National Department of Housing continues to emphasise the need to meet the special housing needs of marginalised women and people with disabilities. The National Department of Housing has, in principle, agreed to assist the Departments of Health and Social Development in providing shelter. Moreover, the South African Human Rights Commission has acknowledged the need for housing projects to take into account the specials needs of vulnerable groups, such as people with disabilities, orphans and vulnerable children.
From individual protection to recognition of relationships : same-sex couples and the South African experience of sexual orientation reformAuthor Usha JivanSource: Law, Democracy & Development 11, pp 19 –46 (2007)More Less
This article explores the nature of legal discourse about equality, in particular homosexual equality, and illustrates how this discourse has traversed through sites that may be labelled condemnation, compassion, condonation and celebration. Much of the discussion focuses on the progress that has been made to bring same-sex relationships into the realm of legal regulation. In South Africa, legal discourse about equality for gays and lesbians at the first three sites has been largely successful and contention remains at the site of celebration.
Author Anel BoshoffSource: Law, Democracy & Development 11, pp 47 –56 (2007)More Less
In S v Makwanyane & Another, the accused, Makwanyane and Mchunu, were convicted by the court a quo on four counts of murder, one count of attempted murder and robbery with aggravating circumstances. Upon appeal the Appellate Division came to the conclusion that the circumstances of the murders were such that the accused should receive the heaviest sentence permissible by law, at that stage, the death penalty. In the Constitutional Court Kentridge J described the acts of the accused as 'murders of horrifying callousness motivated by nothing but greed'. Although the Makwanyane case is generally regarded as a landmark decision in South African legal history, the facts are sadly, in general terms, neither new nor unique. Throughout most of human history, it has been the difficult and distressing task of judges to deal with inhuman acts committed by humans and to make decisions about the fate of those members of society who have committed 'evil' acts. Historically, this judgment upon evil is the traditional, perhaps most traditional, duty of judges. It may therefore be fitting that the Constitutional Court started its career performing this rather unenviable but time-honoured function.
Author Jeannie Van WykSource: Law, Democracy & Development 11, pp 57 –79 (2007)More Less
In September 2007 the Supreme Court of Appeal confirmed the order made a year earlier by the Transkei High Court, which ruled that the owners of 16 cottages which had been built without permission along the Transkei coast vacate the sites they had been illegally occupying and demolish and remove the buildings and structures without damaging the natural environment. These buildings and structures had been built in contravention of section 39(2) of the Transkei (Environmental Conservation) Decree 9 of 1992, which requires a permit to clear, develop or build on land in the one kilometre wide strip of land above the high water mark - the coastal conservation area. Some ten years earlier the Transkei Supreme Court had granted an order, applied for by inter alia the Wildlife Society of Southern Africa and members of the Wild Coast Cottage Owners Association, against the Minister of Environmental Affairs and Tourism to enforce the provisions of the Decree.
Source: Law, Democracy & Development 11, pp 81 –100 (2007)More Less
The decision of the Supreme Court of Appeal (SCA) in De Gree v Webb  SCA 87 (RSA) is worthy of consideration for a number of reasons, reasons which do not include the prominent (emotive) media attention devoted to the facts both before the appeal, and the ongoing publicity which occurred in diverse press and radio reports after judgment was handed down. This matter is reportedly further being considered for an appeal to the Constitutional Court. This, too, indicates both the public concern with, and vested interests in, the outcome of what was widely agreed, ultimately, to be an international adoption.
Author Lee SteynSource: Law, Democracy & Development 11, pp 101 –119 (2007)More Less
In the case of Jaftha v Schoeman & Others; Van Rooyen v Stoltz & Others, the Constitutional Court set aside the sale in execution, at the instance of their creditors, of the immovable property of each of the two appellants on the basis that, in the circumstances, it amounted to an unjustifiable infringement of their right to have access to adequate housing, protected by section 26 of the Constitution. Following upon this, a number of reported cases have dealt with the issue whether the sale in execution of immovable property which has been mortgaged in favour of a creditor may constitute an infringement of the debtor's section 26 rights and, if so, whether such infringement is justifiable in terms of section 36 of the Constitution.
The right to freedom of religion : an apparently misunderstood aspect of legal diversity in South AfricaAuthor Lesala L. MofokengSource: Law, Democracy & Development 11, pp 121 –131 (2007)More Less
Demands expressed locally and internationally for the recognition of legal pluralism are bound to have an effect on the enforcement of personal law in South Africa, especially in the light of sections 15, 30, 31 and 39(1) of the Constitution of the Republic of South Africa ('the Constitution').
Discrimination based on HIV / AIDS status : a comparative analysis of the Nigerian court's decision in Festus Odaife & Ors v Attorney General of the Federation & Ors with other Commonwealth jurisdictionsAuthor Ebenezer DurojayeSource: Law, Democracy & Development 11, pp 133 –151 (2007)More Less
Nigeria is one of the countries in the world that has one of the highest number of people living with HIV / AIDS. A recent report shows that 4.4% of the population of about 140 million people is living with HIV / AIDS. After South Africa, Nigeria has the largest number of people living with HIV / AIDS in Africa. South Africa is estimated to have about six million people living with HIV / AIDS. Prisoners, in particular, tend to be more affected due to their vulnerable nature. In 2002, the national HIV prevalence in Nigeria was about 5.8%, whereas that of the prisons was estimated to be about 8.5%. At the onset of the epidemic, which was strongly denied, the government was seen as doing little or nothing about it. Persons living with or affected by the epidemic were discriminated against and stigmatised. There were documented cases of discrimination against persons living with HIV / AIDS (PLWHA) in the health care sector, the employment, environment, allocation of housing, within community, in the family and virtually every facet of life. This has led to a serious human rights challenge for the affected persons. Many of them were, and still are, unable to seek legal redress for violation of their rights due to ignorance or fear of stigmatisation. The few who are bold enough to go to court encounter an unfriendly environment.
Commentary on communications decided by the African Commission on Human and Peoples' Rights in 2004 : forumAuthor Waruguru KaguongoSource: Law, Democracy & Development 11, pp 153 –171 (2007)More Less
This note deals with the decisions handed down by the African Commission on Human and Peoples' Rights (ACHPR, the Commission) in 2004 as published in the African Human Rights Law Reports. The note forms part of a series of comments on the Commission's case law published in the Forum section of Law Democracy & Development.