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- Volume 33, Issue 2, 2000
Comparative and International Law Journal of Southern Africa - Volume 33, Issue 2, 2000
Volumes & issues
Volume 33, Issue 2, 2000
The maximum length of imprisonment imposed by South African courts after the constitutional abolition of the death penalty : a comparative note on the position in the United States of AmericaAuthor Peet M. BekkerSource: Comparative and International Law Journal of Southern Africa 33, pp 136 –157 (2000)More Less
There are many reasons for discussing the maximum length of imprisonment in South Africa today. The abolition of the death penalty in the light of the new South African Constitution by the new Constitutional Court has led to a reassessment of the maximum length of imprisonment in South Africa where, until fairly recently, imprisonment in excess of twenty-five years was as a matter of sentencing principle, imposed only in cases of exceptional gravity. Further reasons for this reassessment and the imposition of longer sentences, are the courts' reaction to what is perceived as an increase in violent crime, and a crime wave that is sweeping the country.
It has been stated that the 'development of our law in this regard (ie the imposition of longer sentences than in the past) is not yet complete, but it can only be hoped that our penal system will not follow the American example in this regard'.
To enable one to agree or disagree with this statement it is necessary to examine the 'American example.'
Author Kwadwo Appiagyei-AtuaSource: Comparative and International Law Journal of Southern Africa 33, pp 165 –183 (2000)More Less
An emerging trend in international law theory depicts a tension between the 'core' - representing the most widely accepted facts, values and terminologies, and the 'periphery' - the gravitation of international law into cross-disciplinary fields and sectors. This paper seeks to follow this trend and to adopt an integrative approach which involves an extension of the discussion into the domain of international human rights law. My objective is to contribute to the discourse on African notions of human rights from an Akan perspective.
I seek to do this by placing the tension that is on-going between the universalists and the cultural relativists in the discourse on human rights within the core and periphery frameworks. The position of the universalists is that human rights are universal or have come to acquire a universal character through a combination of factors, such as the effect of European contact by way of colonialism and the effort of the United Nations to internationalise the concept of rights. Although there are variants of cultural relativism, its proponents seem to be united on the premise that human rights are shaped by the cultural background of each particular cultural community. Some, therefore, argue for the recognition of human rights from the perspective of each locality, while others argue for integration of the various strands of rights as they exist in each cultural milieu.
Adopting the peripheral framework, a reliance on the policy science aspect of the offensive formation approach, will involve adopting the stance which advocates making international law 'cross-disciplinary in composition, contextual in scope, and problematic in orientation'.
Decision-making at the end of life : the termination of life-prolonging treatment, euthanasia (mercy-killing), and assisted suicide in Canada and South AfricaSource: Comparative and International Law Journal of Southern Africa 33, pp 193 –204 (2000)More Less
This article will deal with an analysis of the Canadian and South African law applicable to the following five situations : termination of life-prolonging treatment at the behest of a mentally competent patient; termination of life-prolonging treatment for a mentally incompetent patient who has signed a health care directive; termination of life-prolonging treatment of a mentally incompetent patient without a health care directive; mercy-killing (either at the behest of a mentally competent patient or when there was no consent to be killed); and aiding the suicide of a mentally competent patient.
Author Dire TladiSource: Comparative and International Law Journal of Southern Africa 33, pp 210 –222 (2000)More Less
The issue of controlling or banning the transboundary movement of hazardous waste from developed to developing countries represents a conflict between the economic interests, of both developed and developing countries, and the health and lives of people in developing countries.
The primary objective of this paper is to examine the likelihood of success of a total ban on hazardous waste import into the continent of Africa. I begin by comparing several provisions of the Basel and Bamako Conventions. I then proceed to examine the new developments in the Basel Convention. In the conclusion it is submitted that the recent developments give a ray of hope for institutional arrangements banning the movement of hazardous substances into the continent of Africa. But first, let us consider two highly publicised incidents that gave the issue international recognition.
The legitimacy of judicial review in South Africa's new constitutional dispensation : insights from the Canadian experienceAuthor Max Du PlessisSource: Comparative and International Law Journal of Southern Africa 33, pp 227 –241 (2000)More Less
This paper will concentrate on the contentious issue of judicial review under a supreme constitution. South Africa is a newcomer to the world of rights-talk and justiciability of government action. Our past is so devoid of a commitment to civil liberties and individual rights, that an overwhelming amount of faith and hope is placed in the Bill of Rights and our courts for the success of a future South Africa. With these aspirations comes the danger of complacency, and an inability to see our fledgling constitutional supremacy in a critical light.
Given the open-textured structure of the constitution and the enhanced powers of judicial review which judges now possess, our courts face the prospect of acting in a manner which may run contrary to the will of the majority. This counter-majoritarian problem has already been experienced in the greatest constitutional democracies the world over. This paper will attempt to draw insights from critical Canadian scholars who are concerned about the power of Canadian judges under a supreme constitution, and will ultimately focus on examining the most effective means for judges to exercise their power of judicial review in a legitimate manner.
Author A. DomanskiSource: Comparative and International Law Journal of Southern Africa 33, pp 248 –257 (2000)More Less
The causes of conduct in violation of law are manifold. One cause, in South Africa at least, is the legacy of apartheid. But in a broader global context, it is plain human greed, above all else, that drives people to violate the natural law. It is greed which impels us to take insatiably and irresponsibly from the earth, thus causing devastation of the environment. This view will, no doubt, appear simplistic to those who would seek the roots of mounting disrespect for law in the complex ground of political and socio-economic considerations. But the view championed here has a long pedigree : according to Plato, the father of Western philosophy, almost all evils, private as well as public, arise when people exceed the limit of necessity and give themselves over to the unlimited accumulation of wealth. They then have to take from others in order to satisfy their greed, for they believe that what they have is no longer enough.
Human rights law in Africa 1996, Christof Heyns (Ed.)
Human rights law in Africa 1997, Christof Heyns (Ed.) : book reviewAuthor Dawid Van WykSource: Comparative and International Law Journal of Southern Africa 33, pp 269 –271 (2000)More Less
The two books under review are respectively volumes 1 and 2 of Kluwer Law International's Human rights law in Africa series. The aims of the series appear from the editor's introduction to the first volume (at viii). In the main they are to provide a 'comprehensive - yet up to date - guide' on the 'legal position as far as human rights in particular African countries are concerned'; and with time to include 'commentary on legislation, judicial decisions and executive action in the field of human rights', together with 'some general information on the countries in question'. Judging from the volumes at hand, the project is on track.
Author Andre StemmetSource: Comparative and International Law Journal of Southern Africa 33, pp 271 –272 (2000)More Less
Much has been written about the theory and philosophy of human rights and the acceptance of some human rights norms as binding international law. However, the discourse on how states can ensure compliance with such internationalised norms through the formulation and implementation of foreign policy, the locus where idealism and political realism meet, is still largely unexplored. Rein Müllerson, Professor of international law at Kings' College, London, aims with this work to comprehensively analyse the theory and practice of human rights diplomacy in a post-Cold War world, attempting to find the elusive middle ground between realism and moralism. The book is published against the background of a number of developments in the post-Cold War world, such as the growing economic importance of the Peoples' Republic of China with its controversial human rights record, the democratisation of Eastern Europe, the violent implosion of Yugoslavia and the formulation of a common foreign and security policy by the European Union, which have combined to focus attention on human rights as a foreign policy instrument.