Constitutional & Human Rights Litigation

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An analytical study of the regulation of South African diamond trade from 1994 to 2009 with reference to aspects of the 1996 Constitution.
(2009) Ndlovu, Fikile Portia.; Mneney, Edith.
This study forms a unique study of South African diamond laws as developed in the context of the South African constitutional dispensation. This study is therefore a contribution to legal research and academia which forms an in depth consideration of international trade practices that influence the diamond industry which is used in this study specifically as a sample market. The diamond industry in South Africa provides a relatively comparatively small but resilient source of economic activity through trade in diamond products as luxury items and items used for industrial purposes. It is therefore crucial that laws related to the regulation of this industry are comprehensively and analytically studied for the purposes of understanding South African national and international diamond trade regulatory framework. This is done with the aim of illustrating that there has been a significant shift of prevailing wisdom in the South African diamond trade industry. It is now evident that more constitutionally justifiable and internationally sound diamond trade practices have been adopted and applied. This study not only serves to benefit South Africa as a diamond producing country but it will also add required knowledge related to the international trade context particularly having regard to the fact that South Africa plays a significant role in the global economy and its diamond trading activities do not occur in a vacuum. Therefore the international trade aspect of this study lends it a dual purpose analysis of diamond regulation laws. 1 Report of Task Team Appointed by the Minister of Minerals & Energy to Analyze the Memoranda and Evidence Laid Before The Commission of Inquiry into the South African Diamond Industry, 20 December (1999). Chapter 5. This was stated in the submissions by Mr. L.A. Lincon, a director of De Beers. He stated that South Africa had 10% by volume of the world total of around 105 million carats. South African mines are no longer major producers of all desired qualities. As a result it was agreed in 1992 that rough diamonds destined for South African factories could be provided from the CSO’s (Central Selling Organization) full range of diamonds available in London from sources world-wide.
The rule of law in a state of emergency.
(1997) Pillay, Camilla.; Devenish, George Edwin.
No abstract available.
The impact of the constitution on the common law of defamation.
(1998) Rajoo, Shalini Kisten.
No abstract available.
The Law of privacy in South Africa.
(1977) McQuoid-Mason, David Jan.; Lund, James Robert.
No abstract available.
Food labelling legislation.
(1990) Lakhani, Chaya Pranlal.; McQuoid-Mason, David Jan.; McGill, A. E. J.
Food labelling serves to (a) inform consumers about the attributes of a food product so that they can make rational and well-informed choices; (b) assist manufacturers in marketing their product; and (c) warn consumers about the inherent risks of certain products, or ingredients in the product. The costs of labelling products fully and informatively are borne by consumers, but the benefits of labelling outweigh the costs. To understand the role of labelling in an regulatory system it is vital to consider the arrangement of the provisions protecting consumers generally before considering food laws and the labelling regulations. Furthermore, due to food being an international product, it is necessary to consider foreign countries and the manner they go about in protecting consumers. The United Nations, under the auspices of the Food and Agriculture Organization (FAO) and the \Vorld Health Organization (WHO), established a Joint FAO/WHO Food Standards Programme, called "Codex Alimentarius". The aim of the programme is to establish standards that can be used internationally to narrow the gap between developed countries and developing countries. To establish a standard various organs of the Codex Alimentarius are consulted. In addition, the standards have to comply with a prescribed format and follow a specified procedure. For the standard to be observed the member country has to incorporate the standard into its domestic laws. One of the advantages of the Codex Alimentarius is that the procedure to establish a standard is flexible. Australia, United Kingdom and the United States of America are member of the Codex Alimentarius. Australia, a federation of states, protects consumers by legislating either state and/or Commonwealth laws. Often there is a combination of statutes. Examples of subjects that are governed by both Commonwealth and states include false or misleading trade practices, and weights and measures. Commonwealth laws only deal with the freedom of information. Food laws are governed exclusively by state legislation. A significant area for future reform is uniformity of the state food laws. There are also other areas for future reform (eg date marking). England and Wales protect consumers by enacting statutes that relate to private and public rights. The important Acts that protect public rights are the Trade Descriptions Act, Weights and Measures Act, Consumer Protection Act, Fair Trading Act and Food Act. One of the provisions of the Criminal Courts Act is to protect personal rights when a consumer suffers personal injury, loss or damage as a result of the offender committing an criminal offence. Food labelling is governed by regulations, that are progressive. A fundamental criticism of the legislation and regulations is the lack of appropriate enforcement of the laws. The enforcement of most of the above Acts is delegated to the local weights and measures authorities. A further complication is the United Kingdom's membership of the European Economic Community. The United States of America enacts federal and state legislation. In protecting consumers in respect of food, it enacts federal legislation. The important Acts include the Fair Packaging and Labelling Act, the Meat Inspection Act, the Poultry and Poultry Products Inspection Act and the Federal Food, Drug and Cosmetic Act. The United States government also encourages openness, with regards to its public agencies, by creating the Freedom of Information Act. The class action is an innovative remedy established in terms of the Civil Procedure Act. The enforcement of food laws is delegated to the Food and Drug Administration (FDA). The protection afforded by the United States government is complex and sophisticated. Its laws serve as model for many countries. The common law of South Africa has limited value in safeguarding consumers. Consumer protection arise mostly by way of legislation and regulations. Consumers are protected generally by the Measuring Units and National Measuring Standards Act, Trade Metrology Act, Trade Practices Act and Harmful Business Practices Act, Standards Act, Dairy Industries Act and the Marketing Act. Consumers are protected against harmful and injurious foodstuffs by the Foodstuffs, Cosmetics and Disinfectants Act, and the regulations promulgated in terms of the Act. There are several problems with the laws, eg lack of enforcement, lack of consumer awareness and education, and so on. An analysis of the foreign countries discussed in Part II result in the indication of twel ve themes. Part III examine the twelve themes and present solutions. Some of the solutions are based on comparisons with foreign countries discussed in Part 11. The main issues that need to be addressed in the short-term are the lack of consumer education and problems of enforcement of consumer protection. Long-term issues include the feasibility of introducing a department of consumer affairs and the provision of statutory civil remedies for consumers.
Management of legal aid clinics in South Africa
(2001) Subban, Mogesperie.; Moodley, Sathiasiven.; Singh, D.
No abstract available.
International legal protections for combatants in the South African armed conflict.
(1988) Boister, Neil Brett.; Patel, Chiman.; Cowling, Michael G.
The African National Congress (ANC) is engaged in an armed conflict with the South African Government for control of South Africa. ANC combatants are being prosecuted under South African criminal law as rebels, a process which undermines the normative value of the criminal law because it is in conflict with popular support for the ANC. International law provides a humanitarian alternative to the criminal law. This study investigates the international legal protections available to combatants in the conflict. Lawful combatant status and prisoner of war status would only be available if the South African armed conflict was classified as international. It has been argued that the international status of the ANC, derived from the denial of self-determination to the South African people, internationalises its war against the South African Government. Attempts have been made to enforce this concept. Article 1(4) of Geneva Protocol 1 classifies armed conflicts involving a movement representing a people with a right of se If-determination against a .. racist re,gime" as international. But South Africa did not accede to Protocol 1 and the argument that it is custom fails because of insufficient international support. Nevertheless, the developing situation justifies an examination of the personal conditions required to gain protectedstatus. The conditions in Article 4 of Geneva Convention 3 (1949) are onerous, making it impracticable in South Africa. Protocol l's updated conditions are more suited to the armed conflict. The Conventions and Protocol 1 also make available procedural and substantive protections to combatants and deal with special issues particular to South Africa. The South African armed conflict can alternatively be classified as non-international. Common Article 3 of the 1949 Conventions applies because South Africa is party to them. Geneva Protocol 2 is not .applicable because South Africa is not a party to it. Unfortunately, Article 3 only applies general humanitarian principles and not protected status. To conclude, because of the inadequate means for enforcing the classification of the South African armed conflict as international and the inadequacy of the protections available under the law of non-international armed conflict, it is urged that the Government confer ex-gratia. lawful status on ANC combatants.
The concept of family courts in South Africa.
(1981) Schafer, Ivan Derrick.; Olmesdahl, Michael C. J.
No abstract available.
Access to antiretrovirals : are there any solutions?
(2008) Broster, Emma Justine.
In South Africa 1 000 people die of AIDS everyday and 100 000 more people require ARVs every year. There is therefore an urgent need to provide access to ARVs andother essential medicines. The South African Constitution requires the government totake reasonable measures to ensure access to health care. The government has cited financial constraints as the major ohstacle to fulfilling this constitutional imperative. In an effort to stretch their budgetary resource other medium-income countries have used measures such as compulsory licences, voluntary licences and parallel importation. These measures, provided for in the TRIPS Agreement and the Doha Declaration, are available under South African legislation but have not been properly implemented due to a lack of political will. The proper use of compulsory licences by the South African government is vital because all twelve of the ARVs on the World Health Organisation's Essential Medicines List are protected in South Africa by our patent laws. However, in order to issue compulsory licences more easily and quickly the South African Legislature will need to pass legislation which clarifies the ambiguities contained in TRIPS and the Doha Declaration. Other methods to lower the price of medicines include the segmentation of the South African market in order to facilitate differential pricing. The State must balance its use of such measures with programmes to incentivise research and development into neglected diseases and HIV/AIDS. Such programmes will also assist the State's capacity to conduct its own research and development into new medicines, whilst bolstering its domestic pharmaceutical manufacturing capacity. The ultimate solution to South Africa's access to medicine problem is to create a pharmaceutical manufacturing industry capable of producing the most complex medicines, so as to lessen its dependence on drug manufacturers reducing their prices. The way to create a sophisticated pharmaceutical manufacturing capacity is to use the flexibilities in TRIPS and to uphold South Africa's high patent standards. The Constitutional Court's involvement is essential in order to force the State to implement its own policies so as to provide access to affordable medicines.
South Africa and the consociational option : a constitutional analysis.
(1982) Boulle, Laurence Joseph.; Mathews, Antony Stuart.
No abstract available.
The contribution of the African Charter on human and people's rights to the realisation of democratic governance in Africa.
(2006) Ngwenya, Mpumelelo Thamsanqa.; Mubangizi, John Cantius.
No abstract available.
The abused women in South Africa : statutory implications and the use of mediation to resolve domestic violence disputes.
(2000) Moodaliyar, Kasturi.; Louw, Ronald.
No abstract available.
The implementation of human rights principles in post apartheid South Africa : the question of an international standard.
(1999) Okharedia, Akhabue Anthony.; Rycroft, Alan John.
No abstract available.
A comparative analysis of the practice of family mediation with particular reference to African customary mediation.
(1997) Mkhize, Petros Bonginkosi.; Mowatt, James G.
Family mediation is a process that' was and is still practised by African indigenous societies. However, mediation in relation to family and divorce matters, is viewed either positively or negatively by most South African writers mainly from a Western perspective. The recommendations made in this work focus, amongst other things, on what ought to be done by policy makers and exponents of mediation in order to make the ,benefits of mediation realised by South Africans particularly disadvantaged communities. The role of illiterate and semi-literate South African citizens)'is pointed out as being critical more in managing family disputes from disfunctioning the family and leading to marriage break-down than merely mediating the parting of ways and ancillary issues of marriage. The practice of family mediation and procedures followed by Africans when introducing the son-in-law to the daughter-in-Iaw's family and the protracted marriage negotiations between Umkhongi (emissary) and the in-laws are all indicative of the entrenched or mandatory approach to family mediation. The benefits of the peaceful ending of marriage relationship through third party interveners are highlighted in President Mandela's desire to terminate his marriage as 'painless as possible' particularly for the sake of children. It is pointed out in this work that the Bushmen of the Kalahari Desert still adhere strictly to their tribal mediation procedures both in relation to family disputes and disputes in general. The tribe relies highly on korakoradue who is its senior citizen and respected elder, as resolver of community disputes. III The South African Justice Department brought hope when it worked toward introducing divorce mediation legislation. However, the vision was misdirected as the enacted family mediation legislation turned out to be constraining in its operation contrary to the recommendations by the Hoexter Commission. The majority of destitute South Africans who should be benefiting from this legislation end up not knowing about the existence of the Act and/or not making use of it because of the costs involved as only the Supreme Court can adjudicate upon matters covered by the Act. The lack of research which focuses on local mediation styles makes it difficult to justify, for example, either Mrs. Mandela's claim when she said ,Mr. Mandela had not answered to the 'African Cultural and Traditional Inkundla' or Mr. Mandela's defence that he respects customs but is not a 'tribalist' as he 'fought as an African Nationalist with no commitment to any tribal custom'.
African customary law : a constitutional challenge for gender equality.
(1999) Govender, Anneline Michelle.; Perumal, Devina Nadarajan.
No abstract available.
The Small Claims Court : a court with a human face?
(1991) Gough, Ian Peter.
No abstract available.
Pre-admission legal education in South Africa : an assessment of the dominant patterns influencing the transmission of legal knowledge.
(1998) Ogúnrónbi, Sunday Oládókun.; Milton, John Robert Landrey.
The purpose of this study was to narrate the major influences shaping the construction and transmission of legal knowledge in South Africa. The paper contends that these influences revolved around the role of the state, the profession, and the university law schools. The conceptual framework informing the study was the place of values in policy measures intimately affecting legal education. The values connection is contextual and not formal or abstract. It is the politics of legal education. The study revisited the site of the current debates in legal education, that of the divide between practical and academic education/training, and the staging of academic and professional education. Particular attention was also paid to the considerations allowed in determining the content of law studies. The role of legal education and training in promoting adversarialism and litigiousness was addressed. Of the three major stakeholders in legal education, the state wields more influence than others. The fresh political dispensation in the country has further supported the state's intervention in legal education. Most of the policies introduced by the state revolve around the enhancement of opportunities for the previously disadvantaged to gain access to legal education. The spate of . government measures in this regard is still growing. The effects of government policy measures like the Outcomes-based Education, the under preparedness of a segment of the student population for law study, admission of more students in the face of tension between a 'mass' and ' elite' system, and the growing diversity in the law schools, are some of the social factors identified in this study. The study concluded with an expression of optimism in the system even in face of frictions and tensions, As envisaged for this exercise, a number of the issues identified were not fully explored. .It is expected that further research may be conducted to determine the far reaching consequences of the factors thus identified.
A legal discussion of the development of family law mediation in South African law, with comparisons drawn mainly with the Australian family law system.
(2011) Schultz, Helga.; Carnelley, Marita.
No abstract provided.
Did you say "asinine" milord? – Bekker v Naude en andere 2003 5 SA 173 (SCA).
(Faculty of Law. Nelson Mandela Metropolitan University., 2003) Wood-Bodley, Michael C.
The African Union and its radical stance towards human rights and democracy.
(2003) Msimang, Tobias Thobani.; Mubangizi, John Cantius.
Any research that attempts to tackle the issue of human rights in Africa is likely to raise emotions because of the history of perpetual human rights violations in the region. Nevertheless, the establishment of the African Union (AU) brings hope that Africa has turned the corner. The provisions of the preamble, objectives and principles of the Constitutive Act of the African Union are crystal clear. Article 3 (h) of the Act makes a critical provision in terms of human and people's rights. (See appendix 1). Paradoxically, this article recognizes the African Charter on Human and Peoples' Rights, which led to innumerable inconsistencies in enforcing human rights under the Organization of African Unity (OAU) (See appendix 2). By implication, the recognition of the 'Charter' justifies its existence in the new African human rights set up. The 'Charter' historically introduced the concept of peoples' in the definition and application of human rights in the African region. This further complicated the concept of human rights, and made it difficult to enforce them. As a result, the dichotomy between human rights and peoples' rights practice in the African region became difficult to reconcile. Hence, the concepts became vulnerable to abuse by governments, who justified their violation of individual human rights for the benefit of peoples' rights. The above assertions hold true for the ailing African region that has evolved from a defunct OAU regime into the radical African Union human rights corpus. The dissolution of the OAU on 9 July 2002 during the last 38th ordinary session of the OAU Assembly in Durban, and the subsequent launching of the AU on the same occasion pioneered a new era for human and peoples' rights approach in the African region. The shift from the toothless-human-rights-system to a clear-visionary-human-rights-regime is an articulation of the desire and commitment to transform the African region. This study therefore reviews the pattern or system that the AU has employed in transforming human and peoples' rights in the African continent. Chapter two attempts to assess the prospects of the African Union to bring reforms in areas of human and peoples' rights, the rule of law, good governance and so on. A comparative analysis of the African Charter on Human and Peoples' Rights and the Constitutive Act of the African Union is drawn from the key clauses, objectives and intentions of the two human rights regimes. Chapter three presents an analytical comparison between the African Union and the European Union. The chapter documents the historical developments of the European Union to illustrate how far the African Union has to go to ensure long lasting peace and stability in the region. The discussion in this chapter acknowledges the differences in these two regions, but uses the European Union to draw some lessons. In so doing the study reviews the historical developments of the union of states that has advanced itself in critical areas of democracy, human rights, good governance and so on. Hence, the chapter recognizes the remarkable accomplishments of the African Union in the last five years. The parity of judges in the AU Commission, the commitment of 53 African nations to adopt and ratify the Constitutive Act of the African Union in record time, the establishment of the New Partnership for Africa's Development, the introduction of the African Peer Review Mechanism and the peace-keeping missions in Liberia, Democratic Republic of Congo and so on are among the achievements of the Union in the last few years of its existence. In an attempt to justify the radical shift of the African Union from the OAU past, chapter four discusses the establishment of the African Court on Human and Peoples' Rights. Even though the idea of establishing a Court of justice emanated from the OAU decades after its existence, the chapter acknowledges the radical stance of the African Union to put in place a 'Court' from the beginning. The chapter further looks at the structure of the 'Court' in terms of its composition and election of judges, court procedure, court judgments and their execution and its relationship with the African Commission. In making recommendations and drawing conclusions, chapter five makes a strong point that the pre-requisite for stability and prosperity in the African region is through transforming and consolidating national institutions into democracy. The chapter also acknowledges the continued existence of the African Charter on Human and Peoples' Rights, but raises a concern that its existence is subject to abuse by non-democratic governments. The chapter concludes the study by drawing an inference that indeed the African Union represents a radical shift from the OAU in terms of promoting and protecting human and peoples' rights. However, the study acknowledges that the African Union will take some time to fully bear the benefits, but its efforts so far are worth the accolades.

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