Law, Democracy & Development - Volume 13, Issue 1, 2009
Volumes & issues
Volume 13, Issue 1, 2009
Source: Law, Democracy & Development 13, pp XI –XVIII (2009)More Less
This issue of Law, Democracy & Development covers a range of topics that are pertinent to our central theme: the promotion of democracy - above all through the protection of fundamental rights - and socio-economic development. Some articles focus on the protection of the rights of vulnerable groups in society; others deal with broader questions ranging from the operation of governmental structures to the manner in which we understand our apartheid past (and, consequently, the lessons we learn for the future). Still others focus on the protection of fundamental rights and the maintenance of democracy in other parts of Southern Africa.
The law regarding the division of the retirement savings of a retirement fund member on his or her divorce with specific reference to Cockcroft v Mine Employees Pension Fund,  3 BPLR 296 (PFA)Author Lufuno NevondweSource: Law, Democracy & Development 13, pp 1 –12 (2009)More Less
This article analyses the recent amendments to the Pension Funds Act 24 of 1956 relating to the divorce benefit, particularly the amendment of section 37D. This amendment has brought about changes, and will contribute positively to the development of South African retirement law. The allocation and payment of a share of a retirement fund member's retirement savings on divorce has been the subject of intense debate in the retirement funding community, especially in view of the unfairness to non-member former spouses (who are usually women) of the law in this regard before 1 November 2008.
Author Deon ErasmusSource: Law, Democracy & Development 13, pp 13 –39 (2009)More Less
The South African Criminal trial process is governed by the provisions of the Criminal Procedure Act. In essence a criminal trial is conducted through the medium of the spoken word and is therefore essentially oral in nature. According to Steytler the key element of an adversarial trial is its orality.
Author Neil CoetzerSource: Law, Democracy & Development 13, pp 40 –49 (2009)More Less
The public health sector is constantly at pains to provide adequate basic healthcare in many areas of South Africa. However, despite the difficulties faced by the state in this regard and the sharp criticism levelled at it for its failure to ensure a high standard of basic public healthcare, the state has taken it upon itself to draft legislation, in the form of the National Health Amendment Bill 2008 (the Bill), enabling it to regulate the pricing of private healthcare. Has the long arm of the law perhaps stretched too far by attempting to regulate the private healthcare industry? Are these measures reasonable in the state's ongoing battle for progressive realisation of the right to healthcare? I will endeavour to answer these questions, as well as suggest possible alternatives to achieve what the Bill sets out to do. The purpose of this article is, however, not to examine the nature and extent of any possible infringements the Bill may bring about with regard to the right to access to healthcare expressly, but to examine the Bill against the pretext of governmental policy in promoting or realising this right.
"The past is a foreign country" : official public memory in South African constitutional jurisprudenceAuthor Irma KroezeSource: Law, Democracy & Development 13, pp 50 –61 (2009)More Less
In their graphic novel, V for Vendetta, Alan Moore and David Lloyd created an anarchist anti-hero called V who opposed a fascist regime in a futuristic England by blowing up government buildings. The film version of the novel features the same (anti-)hero and starts with him blowing up the Old Bailey (the Central Criminal Court in London) while the 1812 Overture booms from speakers all over the city. The film ends with the successful blowing up of the Houses of Parliament while the citizens look on in approval. Throughout the film viewers are reminded not to forget the fifth of November - the night in 1605 when a group of English Roman Catholics, led by Guy Fawkes, tried to blow up the Palace of Westminster in order to kill King James I. The plot was foiled and Fawkes was executed. The terrorist V also wears a mask that is reminiscent of a painting of Guy Fawkes.
L'etat, C'est Moi : why provincial Intra-governmental disputes in South Africa remain ungoverned by the final constitution and the Intergovernmental Relations Framework Act - and how we can best resolve themAuthor Stu WoolmanSource: Law, Democracy & Development 13, pp 62 –75 (2009)More Less
For years, lawyers, jurists and academics bemoaned a great gaping hole in our law : the Final Constitution had promised to establish a legal regime to mediate and to resolve intergovernmental conflicts. (Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)("Final Constitution" or "FC"). During the first decade of post-apartheid South African life (1996 - 2005), Parliament failed to make good FC s 41(2)'s guarantee that intergovernmental disputes would be resolved by legislation that prevented different spheres of government and opposing organs of state from going to war (or court) over vital policy matters.
Author Nadjita NgarhodjimSource: Law, Democracy & Development 13, pp 76 –89 (2009)More Less
It has long been admitted that the right to determine its own political regime, vests in a State. The right falls within the realm of State sovereignty and excludes, a priori, any idea of external influence or interference. The principle of non-interference in domestic affairs is one of the sacrosanct values underlying inter-state relations. The principle was reaffirmed by UN General Assembly Resolution 1514 of 1960, regarding the granting of independence to colonised peoples and countries, whereby the General Assembly recalled the right of peoples to self-determination, which includes the right to be free from any form of colonialism, and also the right to independently choose their political status or regime. Traditionally, therefore, international law purports to be politically and ideologically neutral, even though, during the so-called Cold War period, Washington and Moscow tried to impose their respective ideologies upon small states. In Africa, the 1963 Charter of the Organisation of African Unity (OAU) installed non-interference in the internal affairs of Member States as one of the pillars of the Organisation.
Author Patrick MatibiniSource: Law, Democracy & Development 13, pp 90 –105 (2009)More Less
Kokwane ya semolao go ta molaotheo mabapi le Masiya kgatlhanong le Molaodi wa Bothothisi bja Sethaba le ba Bangwe 2007 (5) SA 30 (CC)Source: Law, Democracy & Development 13, pp 106 –111 (2009)More Less
Mo molatong wo mmelaedi e be e le mosetsanyana wa mengwaga ye senyane, yo a begilego gore o katilwe ke monna yo a mo tsebago, Mna Fanuel Sitakeni Masiya, ka la 16 Mathe 2004. O ile a hlahlobja ke ngaka ka morago ga beke, ka la 23 Mathe 2004. Mna Masiya o twelete la mathomo pele ga Kgoro ya Tsheko ya Setereke sa Sabie; ka morago ga fao molato wa lebiwa go Kgoro ya Tsheko ya Selete ya Graskop, moo a latofaditwego ka go kata.
The principle of legality in constitutional matters with reference to Masiya v Director of Public Prosecutions and Others 2007 (5) SA 30 (CC)Source: Law, Democracy & Development 13, pp 112 –117 (2009)More Less
The complainant in the matter was a nine-year-old girl who alleged that she had been raped by a man who was known to her, Mr. Fanuel Sitakeni Masiya, on 16 March 2004. She was medically examined one week later on 23 March 2004. Mr. Masiya had initially appeared before the District Court at Sabie; later the case was referred to the Graskop Regional Court where he was charged with rape.