oa Litnet Akademies : 'n Joernaal vir die Geesteswetenskappe, Natuurwetenskappe, Regte en Godsdienswetenskappe - Aantekening : die plek en gesag van internasionale reg in die Suid-Afrikaanse plaaslike reg, met verwysing na die Glenister-uitspraak : regte
The place and authority of international law in South African domestic law, with reference to the Glenister judgement
Since 1994 in particular, South Africa has been incurring several obligations in terms of international law. This raises the question of the place and authority of international law in the domestic law of the country.
An important example of where a South African court had to consider this question was Glenister v President of the Republic of South Africa. In this case the constitutional court had to take into account, inter alia, the United Nations convention against corruption in order to come to the conclusion that the controversial legislation that had turned the highly successful elite crime unit, the Scorpions, into the Hawks was unconstitutional and invalid.
Both the minority and majority judgements in Glenister paid considerable attention to the role, place and authority of international law in South African domestic law. However, they did so in essentially different ways. One is left with the impression that the majority judgement has created uncertainty about the incorporation of international treaties in domestic law, particularly on the notion of self-executing treaty provisions. My submission is that there is only one way of clarifying this uncertainty, and that is for the South African courts to interpret this principle as articulated by section 231(4) of the Constitution. It is disappointing that it did not do so in this judgement.
By comparing the United Nations convention against corruption with the Prevention and Combating of Corrupt Activities Act 12 of 2004, comments are also made about the methods by which international law is incorporated into South African law. The comparison demonstrates that the United Nations convention indeed played a substantial role in the design and promulgation of the act.
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