Codicillus - Volume 44, Issue 2, 2003
Volume 44, Issue 2, 2003
Author Andre Mbata B. ManguSource: Codicillus 44, pp 2 –23 (2003)More Less
The debate over the "floor-crossing" legislation enabling members of the legislatures to change parties and yet retain the membership of such legislatures highlighted some of the challenges facing multi-party democracy in South Africa and many other "democracies". Based on the assumption that the Constitution, which purported to establish democracy or government of the people, ended up entrenching partycracy, or government of parties, this article focuses on floor-crossing and investigates the relationship between partycracy, floor-crossing constitutionalism and democracy.
Author Fawzia CassimSource: Codicillus 44, pp 24 –31 (2003)More Less
In this article the author discusses the right of an accused person to address the court in the language of his or her choice. She argues that court proceedings must be conducted in a language that the accused person understands so that such person may properly understand the proceedings. She examines the relevant provisions of the South African constitution in this regard and traces the rights of linguistic minorities through case law, both in South Africa and foreign jurisdictions, in particular the Canadian approach. She concludes that the accused has a fundamental right to be tried in a language which he or she understands if justice is truly to be achieved in a multicultural, multilingual country such as South Africa.
Source: Codicillus 44, pp 32 –48 (2003)More Less
In this article the authors analyse the processes of policital, constitutional and legal transformation in two post-authoritarian societies, namely Eastern and Central Europe and South Africa. They first comment generally on the transformation in these societies, then discuss some of the similarities and differences in their respective transformation processes. After a consideration of political negotiations and constitutional prospects they contemplate two theoretical approaches, those of Minow and Gordon respectively. Finally, the article analyses the responses to authoritarianism and the approaches to transitional justice in these societies, namely retributive justice in Europe, and truth and reconciliation in South Africa.
Author M. BudeliSource: Codicillus 44, pp 49 –60 (2003)More Less
In this article, the author deals with the right to freedom of association in domestic law and international law binding on South Africa. She then assesses the jurisprudence of the courts in the two benchmark cases of South African National Defence Union v Minister of Defence and Independent Municipal and Allied Trade Union v Rustenburg Transitional Council and concludes that, like their counterparts in the private sector, public sector employees are entitled to freedom of association, which entails the right to form or join a trade union, to participate in its legal activities and to strike.
Author J. De GamaSource: Codicillus 44, pp 61 –67 (2003)More Less
In this article the author lists and discusses a number of reasons for poor capital flows in South Africa. These include portfolio investment, the loss of skilled labour through increasing immigration, the "big bang theory" on investment, the lack of further privatisation as well as political instability in the region and the high crime rate. He concludes that, although foreign direct investment is becoming more prevalent as one of the major sources of capital flows into developing countries and although developing countries have become more proactive in promoting themselves as viable investment destinations, this does not guarantee the right type of foreign direct investment.
Author Christa RoodtSource: Codicillus 44, pp 68 –85 (2003)More Less
In any criminal procedural system, be it mixed or pure, jurisprudence gives shape to the relationships among procedural fairness, factual truth, justice, effective adjudication and integrity. Accusatory and inquisitorial systems tend to emphasise different values and different aspects of these values. The author discusses the murder charge against Mr Pieter Viljoen, highlighting the manner in which truth seeking and effectiveness in adjudication were undervalued not only in the course of the bail hearings but also at his trial before South African courts.
Are anti-dumping measures in multilateral trade justifiable or not? A call for an academic debate in AfricaAuthor Omphemetse SibandaSource: Codicillus 44, pp 86 –91 (2003)More Less
The prevention of dumping of goods (and services) is one of the challenges facing the World Trade Organisation multilateral trade system. This article examines arguments for and against anti-dumping measures in multilateral trade. Both sides seem to agree that dumping practices and anti-dumping duties have a significant impact on the goals of international trade.
Source: Codicillus 44, pp 92 –100 (2003)More Less
The constitution takes a substantive rather than a formal approach to equality. At times it may be the very essence of equality to treat groups and individuals differently in order to accommodate their different needs and interests. The authors consider the meaning of s 9 of the 1996 Constitution in the context of South African constitutional equality jurisprudence. They highlight cases confirming that differentiation on grounds that affect a person's dignity as a human being is proscribed.
The problems and criticisms relating to interest theory in South African insurance law and other legal systems : some suggestions for reformSource: Codicillus 44, pp 101 –109 (2003)More Less
In this contribution the problems and criticisms of the concept of an insurable interest in insurance law are discussed. The nature, scope and limitations of an insurable interest are assessed in the light of developments in other countries. The author considers the possibility of legislative reform of the concept in order to conform with modern trends.
The role of human rights activists in exposing and denouncing human rights violations that silence womenAuthor Nomthandazo NtlamaSource: Codicillus 44, pp 110 –117 (2003)More Less
This article examines the role that human rights activists can play in combating violence against women. It provides an overview of the extent to which women's rights have been promoted and protected in South Africa. It also analyses the challenges and problems which hamper the implementation of these rights. Finally, it offers some suggestions on the effective implementation of the laws and programmes currently in place to combat violence against women.
Author Sarah MagolegoSource: Codicillus 44 (2003)More Less
On 24 April 2003, the Unit for Basic Legal Education hosted a seminar for domestic workers and their employers. The seminar was held at the Unisa Conference Centre. The objective of the seminar was to inform domestic workers and their employers about the new law regulating their relationship. (This law is called the Sectoral Determination for the Domestic Worker Act and came into effect on 1 September 2002). The seminar was divided into two sessions.
Source: Codicillus 44, pp 119 –124 (2003)More Less
The case concerned an appeal against the dismissal of an application for rescission of a default judgment in terms of Rule 49(1) of the Magistrate's Courts Rules. For the sake of convenience, the parties will be referred to as they were in the magistrate's court. The default judgment was granted because the defendant was found to be in default of delivering a plea, after having been served with a notice of bar.
Source: Codicillus 44, pp 124 –129 (2003)More Less
It was held that the certificate issued by the requesting state was conclusive solely with regard to a question of foreign law. The enquiry by the magistrate did not constitute a trial in which the accused's guilt or innocence was determined. It was held that the extradition proceeding was sui generis and that the Act was in essence regulating the exercise of a sovereign state's power.
Source: Codicillus 44, pp 129 –139 (2003)More Less
The respondent is an independent television station which broadcasts a programme called Carte Blanche on Sunday nights. The respondent intended to broadcast an exposé on alleged malpractices involving the treatment of women undergoing voluntary abortions at a public hospital falling under the jurisdiction of the applicant. The applicant launched an "extremely urgent" application less than an hour before the programme was to go on air to prevent the screening.
Source: Codicillus 44, pp 139 –143 (2003)More Less
This is an appeal against the dismissal and the attendant cost orders in the Land Claims Court by Moloto J of an application brought by the appellant ("Gamevest") against the respondents. The application had its origin in claims submitted by the fourth and fifth respondents by virtue of the provisions of the Restitution of Land Rights Act 22 of 1994 (the Restitution Act) for the restitution to them of, inter alia, certain farms at present registered in the name of the appellant.
Author M.C. MareSource: Codicillus 44, pp 144 –158 (2003)More Less
The Faculty lost another colleague and dear friend with the untimely death of Professor Marié Blackbeard of the Department of Private Law. We remember Professor Blackbeard as an excellent academic and teacher. Her positive attitude and cheerful disposition were an inspiration to us all. She will be sorely missed.