Subjects -> LAW (Total: 1523 journals)
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    - INTERNATIONAL LAW (190 journals)
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LAW (923 journals)            First | 1 2 3 4 5     

Showing 601 - 354 of 354 Journals sorted alphabetically
Prisma Juridico     Open Access  
Prison Journal     Hybrid Journal   (Followers: 30)
Problema Anuario de Filosofía y Teoría del Derecho     Open Access   (Followers: 1)
Progress in Planning     Hybrid Journal   (Followers: 1)
Projeção, Direito e Sociedade     Open Access  
Prolegomenos. Derechos y Valores     Open Access  
Prometheus : Critical Studies in Innovation     Hybrid Journal   (Followers: 3)
Prosecutor : Journal of the National District Attorneys Association     Full-text available via subscription  
Prudentia Iuris     Open Access   (Followers: 1)
Przegląd Prawa Ochrony Środowiska     Open Access  
Przegląd Prawniczy Uniwersytetu im. Adama Mickiewicza / Adam Mickiewicz University Law Review     Open Access  
Psychological Injury and Law     Hybrid Journal   (Followers: 1)
Psychology and Law     Open Access   (Followers: 3)
Psychology, Crime & Law     Hybrid Journal   (Followers: 26)
Psychology, Public Policy, and Law     Full-text available via subscription   (Followers: 14)
Public Land and Resources Law Review     Open Access  
Public Space: The Journal of Law and Social Justice     Open Access   (Followers: 2)
Queen Mary Journal of Intellectual Property     Full-text available via subscription   (Followers: 11)
Questione giustizia     Full-text available via subscription  
QUT Law Review     Open Access   (Followers: 5)
Raízes no Direito     Open Access   (Followers: 2)
Rassegna di Diritto, Legislazione e Medicina Legale Veterinaria     Open Access  
Ratio Juris     Hybrid Journal   (Followers: 19)
Recht der Energiewirtschaft     Hybrid Journal  
Rechtsidee     Open Access   (Followers: 3)
Religion, State and Society     Hybrid Journal   (Followers: 6)
Res Severa Verum Gaudium     Open Access   (Followers: 1)
Revenue Law Journal     Open Access  
Review of Central and East European Law     Hybrid Journal   (Followers: 8)
Review of European Administrative Law     Full-text available via subscription   (Followers: 2)
Review of European, Comparative & International Environmental Law     Hybrid Journal   (Followers: 7)
Review of Finance     Hybrid Journal   (Followers: 57)
Review of Litigation, The     Full-text available via subscription  
Review of Politics     Full-text available via subscription   (Followers: 4)
Revista Abya-Yala     Open Access   (Followers: 1)
Revista Acadêmica : Faculdade de Direito do Recife     Open Access  
Revista Arbitrada de Ciencias Jurídicas y Criminalísticas Iustitia Socialis     Open Access  
Revista Brasileira de Direito     Open Access   (Followers: 2)
Revista Catalana de Dret Privat     Open Access  
Revista catalana de dret públic     Open Access   (Followers: 2)
Revista CES Derecho     Open Access   (Followers: 1)
Revista CESCO de Derecho de Consumo     Open Access   (Followers: 2)
Revista Chilena de Derecho     Open Access   (Followers: 2)
Revista Chilena de Derecho del Trabajo y de la Seguridad Social     Open Access  
Revista Chilena de Derecho Privado     Open Access   (Followers: 1)
Revista Chilena de Derecho y Tecnología     Open Access   (Followers: 1)
Revista Chilena de Historia del Derecho     Open Access   (Followers: 1)
Revista Ciencias Humanas     Open Access   (Followers: 1)
Revista Científica do Curso de Direito     Open Access  
Revista da Faculdade de Direito da UERJ     Open Access   (Followers: 1)
Revista da Faculdade de Direito da UFRGS     Open Access  
Revista da Faculdade de Direito UFPR     Open Access   (Followers: 1)
Revista da Faculdade Mineira de Direito     Open Access  
Revista de Bioética y Derecho     Open Access  
Revista de Ciências Jurídicas     Open Access   (Followers: 1)
Revista de Ciencias Jurídicas     Open Access   (Followers: 1)
Revista de Derecho     Open Access  
Revista de Derecho     Open Access  
Revista de Derecho     Open Access  
Revista de Derecho     Open Access  
Revista de Derecho (Concepción)     Open Access   (Followers: 2)
Revista de Derecho (Coquimbo)     Open Access  
Revista de Derecho Comunitario Europeo     Open Access   (Followers: 1)
Revista de Derecho de la Pontificia Universidad Católica de Valparaíso     Open Access  
Revista de Derecho de la Seguridad Social, Laborum     Open Access   (Followers: 2)
Revista de Derecho de la UNED (RDUNED)     Open Access  
Revista de Derecho de la Unión Europea     Open Access   (Followers: 4)
Revista de Derecho Fiscal     Open Access  
Revista de Derecho Político     Open Access  
Revista de Derecho Privado     Open Access  
Revista de Derecho Privado     Open Access  
Revista de Derecho Público     Open Access  
Revista de Direito     Open Access  
Revista de Direito Agrário e Agroambiental     Open Access  
Revista de Direito Ambiental e Socioambientalismo     Open Access  
Revista de Direito Brasileira     Open Access   (Followers: 1)
Revista de Direito da Administração Pública     Open Access  
Revista de Direito da Faculdade Guanambi     Open Access  
Revista de Direito Sanitário     Open Access  
Revista de Direito Sociais e Políticas Públicas     Open Access  
Revista de Educación y Derecho     Open Access  
Revista de Estudios de la Justicia     Open Access  
Revista de Estudios Historico-Juridicos     Open Access   (Followers: 1)
Revista de Estudos Empíricos em Direito     Open Access  
Revista de Estudos Institucionais     Open Access  
Revista de Historia del Derecho     Open Access   (Followers: 1)
Revista de la Escuela de Medicina Legal     Open Access   (Followers: 3)
Revista de la Facultad de Derecho (Universidad Nacional de Córdoba)     Open Access   (Followers: 1)
Revista de la Facultad de Derecho :     Open Access   (Followers: 1)
Revista de la Facultad de Derecho : Universidad de la República     Open Access  
Revista de la Facultad de Derecho y Ciencias Políticas     Open Access  
Revista de la Maestría en Derecho Procesal     Open Access   (Followers: 1)
Revista de la Secretaría del Tribunal Permanente de Revisión     Open Access  
Revista de Llengua i Dret     Open Access  
Revista de Movimentos Sociais e Conflitos     Open Access  
Revista de Processo, Jurisdição e Efetividade da Justiça     Open Access  
Revista de Sociologia, Antropologia e Cultura Jurídica     Open Access  
Revista Derecho del Estado     Open Access  
Revista Diálogos do Direito     Open Access  
Revista Digital Constituição e Garantia de Direitos     Open Access  
Revista Digital de Derecho Administrativo     Open Access  
Revista Direito Ambiental e Sociedade     Open Access   (Followers: 1)
Revista Direito e Práxis     Open Access   (Followers: 1)
Revista Direito GV     Open Access   (Followers: 1)
Revista Direitos Emergentes na Sociedade Global     Open Access   (Followers: 1)
Revista Direitos, Trabalho e Política Social     Open Access  
Revista do Curso de Direito     Open Access  
Revista do Curso de Direito do Centro Universitário Brazcubas     Open Access  
Revista dos Estudantes de Direito da UnB     Open Access   (Followers: 1)
Revista Electrónica Cordobesa de Derecho Internacional Público : RECorDIP     Open Access  
Revista Eletrônica de Direito Processual     Open Access  
Revista Eletrônica Direito e Política     Open Access  
Revista Eletrônica do Curso de Direito - PUC Minas Serro     Open Access  
Revista Eletrônica do Curso de Direito da UFSM     Open Access   (Followers: 2)
Revista Española de Medicina Legal     Full-text available via subscription   (Followers: 1)
Revista Estudios Jurídicos     Open Access  
Revista Estudios Socio-Jurídicos     Open Access   (Followers: 1)
Revista Eurolatinoamericana de Derecho Administrativo     Open Access  
Revista FIDES     Open Access  
Revista Historia y Justicia     Open Access  
Revista Icade. Revista de las Facultades de Derecho y Ciencias Económicas y Empresariales     Full-text available via subscription  
Revista Internacional de Derecho del Turismo     Open Access  
Revista Internacional de Doctrina y Jurisprudencia     Open Access  
Revista IUS     Open Access  
Revista Jurídica     Open Access   (Followers: 1)
Revista Jurídica da UFERSA     Open Access  
Revista Jurídica de Asturias     Open Access  
Revista Jurídica de la Universidad de León     Open Access  
Revista Jurídica do Cesuca     Open Access  
Revista Jurídica IUS Doctrina     Open Access  
Revista Jurídica Portucalense/Portucalense Law Journal     Open Access  
Revista Jurídica Universidad Autónoma de Madrid     Open Access  
Revista Latinoamericana de Derecho Social     Open Access   (Followers: 1)
Revista Latinoamericana de Derechos Humanos     Open Access   (Followers: 2)
Revista Opinión Jurídica     Open Access  
Revista Pedagogía Universitaria y Didáctica del Derecho     Open Access  
Revista Persona y Derecho     Full-text available via subscription  
Revista Pesquisas Jurídicas     Open Access  
Revista Quaestio Iuris     Open Access   (Followers: 2)
Revista Videre     Open Access   (Followers: 1)
Revue générale de droit     Full-text available via subscription   (Followers: 3)
Revue internationale de droit pénal     Full-text available via subscription  
Revue Marocaine de Droit, d’Economie et de Gestion     Open Access  
Revue pro právo a technologie     Open Access  
Riau Law Journal     Open Access  
Risalat al-huquq Journal     Open Access   (Followers: 1)
Roger Williams University Law Review i     Open Access  
RUDN Journal of Law     Open Access  
Russian Law Journal     Open Access  
Russian Politics & Law     Full-text available via subscription   (Followers: 9)
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg     Full-text available via subscription   (Followers: 1)
Santa Clara Computer & High Technology Law Journal     Open Access   (Followers: 5)
Santa Clara Law Review     Open Access  
Science & Justice     Hybrid Journal   (Followers: 447)
ScienceRise : Juridical Science     Open Access  
Scientiam Juris     Open Access   (Followers: 1)
Scientometrics     Hybrid Journal   (Followers: 39)
SCRIPTed - A Journal of Law, Technology & Society     Open Access   (Followers: 13)
Seattle Journal for Social Justice     Open Access   (Followers: 3)
Seattle University Law Review     Open Access   (Followers: 3)
Selçuk Üniversitesi Hukuk Fakültesi Dergisi / Selçuk Law Review     Open Access  
Seqüência : Estudos Jurídicos e Políticos     Open Access  
Seton Hall Circuit Review     Open Access  
Seton Hall Journal of Sports and Entertainment Law     Open Access   (Followers: 3)
Seton Hall Law Review     Open Access   (Followers: 2)
Singapore Academy of Law Annual Review of Singapore Cases     Full-text available via subscription  
Singapore Academy of Law Journal     Full-text available via subscription  
Singapore Journal of Legal Studies     Full-text available via subscription   (Followers: 4)
Social & Legal Studies     Hybrid Journal   (Followers: 9)
Social Security Reporter     Full-text available via subscription   (Followers: 3)
Società e diritti     Open Access  
Sociologia del diritto     Full-text available via subscription   (Followers: 1)
Sociological Jurisprudence Journal     Open Access  
Soumatera Law Review     Open Access  
South African Crime Quarterly     Open Access   (Followers: 9)
South African Journal of Bioethics and Law     Open Access   (Followers: 1)
South African Journal of Environmental Law and Policy     Full-text available via subscription  
South African Law Journal     Full-text available via subscription   (Followers: 5)
South East European University Review (SEEU Review)     Open Access   (Followers: 1)
Southern African Public Law     Full-text available via subscription  
Southern Illinois University Law Journal     Open Access   (Followers: 1)
Sri Lanka Journal of Forensic Medicine, Science & Law     Open Access   (Followers: 1)
St. John's Law Review     Open Access  
Stanford Law & Policy Review     Full-text available via subscription   (Followers: 5)
Stanford Law Review     Free   (Followers: 36)
Stanford Technology Law Review     Free   (Followers: 1)
Statute Law Review     Hybrid Journal   (Followers: 16)
Statutes and Decisions : Laws USSR     Full-text available via subscription   (Followers: 2)
Studenckie Zeszyty Naukowe     Open Access  
Studia Canonica     Full-text available via subscription  
Studia Iuridica Lublinensia     Open Access  
Studia Iuridica Toruniensia     Open Access  
Studia z Prawa Wyznaniowego     Open Access   (Followers: 1)
Studies in Social Justice     Open Access   (Followers: 10)
Suffolk University Law Review     Free  
Suhuf     Open Access  
Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi     Open Access  
Supremasi Hukum : Jurnal Penelitian Hukum     Open Access  
Supreme Court Review, The     Full-text available via subscription   (Followers: 6)
Sustainable Development Law & Policy     Open Access   (Followers: 12)

  First | 1 2 3 4 5     

Similar Journals
Journal Cover
Southern African Public Law
Number of Followers: 0  
 
  Full-text available via subscription Subscription journal
ISSN (Print) 2219-6412
Published by UNISA Homepage  [7 journals]
  • Southern African Public Law: Challenges and prospects for traditional
           leadership in Africa : towards innovative ideas to enhance African values
           among the youth in South Africa : Centre for Indigenous Law
    • Authors: Iya; Philip
      Abstract: The highly contested public law issue of the recognition of African values in South Africa with emphasis on the youth is addressed in this article. The arguments mooted revolve around the hypothesis that the youth in Africa generally, but particularly in South Africa, are seldom involved in debates relating to African values, with the instance of African traditional leadership as a case in point. In expanding on this hypothesis two different approaches/schools of thought relating to the recognition of traditional leadership are highlighted. On the one end we find the 'traditionalists' with their emphasis on the 'continued existence of traditional leaders' for various reasons. On the other end, we find the 'modernists' who campaign for the total abolition of the institution of traditional leadership. However, the adoption of a more pragmatic middle course (an 'inter-entrenched' goalpost) is advocated. Nevertheless, the central question remains 'how the South African society should move between the two goalposts (between traditionalism and modernism)'' The answer to this question is the challenge.
      PubDate: 2015-04-28T13:48:53Z
       
  • Southern African Public Law: Editorial note from the chairman of the newly
           launched Centre for Indigenous Law in the Department of Public,
           Constitutional and International Law
    • Authors: Ndima; Dial Dayana
      Abstract: The Centre for Indigenous Law in the Department of Public, Constitutional and International Law, College of Law, was launched on the Muckleneuk Campus of the University of South Africa (Unisa) as part of the Conference on African Customary Law: Contemporary Issues held on 11 and 12 July 2013.
      PubDate: 2015-04-28T13:48:53Z
       
  • Southern African Public Law: The constitutional divide of post-apartheid
           South Africa in the jurisdiction of the traditional justice system :
           Centre for Indigenous Law
    • Authors: Ntlama; Nomthandazo
      Abstract: The exclusive jurisdiction of the traditional justice system - which in effect is based on racial classification - has been the subject of debate in South Africa since the attainment of democracy in 1994. The debate is drawn from the Constitution, which recognises the general system of customary law, and limits its application to the people who observe it. The debate is further fuelled by the non-explicit recognition of the customary court system within the judicial structure of the Republic. These courts are inferred from the concept of 'any other courts' in the Constitution. The inference of customary courts from 'any other courts', compromises the legitimate status of these courts in the resolution of disputes that arise from the system of customary law - in line with the ideals of the new constitutional dispensation. This considered, this article critically reviews the constitutional status of the customary court system in South Africa. The objective is to examine the effect of its exclusive jurisdiction in the application of the principles of traditional justice. It is also limited to the review of South Africa's constitutional perspective on the protection of customary law relating to the advancement of the traditional justice system. It is argued, therefore, that the exclusive jurisdiction of the traditional justice system is a direct racial classification under the guise of the foundational values of the new democratic dispensation. Equally, the status given to customary courts - which is inferred from the concepts of 'any other' - constitutes a manifestation of the historic divide that compromises the legitimacy of these courts in the application of traditional justice. The extent, to which the exclusive jurisdiction can move towards a system that inclusively reflects the values of the new democratic dispensation, is also reviewed in general.
      PubDate: 2015-04-28T13:48:52Z
       
  • Southern African Public Law: How central is the African Union to the
           promotion of traditional African values' - a critical engagement :
           Centre for Indigenous Law
    • Authors: Fagbayibo; Babatunde
      Abstract: In addition to the Charter for African Cultural Renaissance, many of the normative instruments of the African Union (AU) underline the importance of traditional African values. Through its policy documents, action plans and charters, the AU expressly points to the centrality of traditional African values in the attainment of organisational objectives and goals. These include instruments on human rights, women, youth, elections and democracy, economic development and general regional integration. This acknowledgement raises two critical questions. The first relates to the level of implementation of this ideal by member states, and the second is the extent to which the AU provides an effective coordinating platform for the promotion of traditional African values. These two interrelated enquiries lie at the heart of understanding how the AU can play an essential role in the promotion of traditional African values. . This article intends to home in on the institutional perspective of promoting traditional African values through transnational mechanisms. The central argument is that AU member states should demonstrate the necessary political will to strengthen African Union institutions to be able to effectively coordinate and implement efforts aimed at channelling traditional African values into development efforts at both the national and transnational levels.
      PubDate: 2015-04-28T13:48:51Z
       
  • Southern African Public Law: The resurrection of the indigenous values
           system in post-apartheid African law : South Africa's constitutional and
           legislative framework revisited : Centre for Indigenous Law
    • Authors: Ndima; Dial Dayana
      Abstract: A constitution that recognises customary law in South Africa must prioritise indigenous African values in order to give direction to state institutions in their quest to mainstream the African worldview in legal interpretation. Its framework must ensure that the recognition of indigenous African institutions restores their cultural meaning which must, in turn, reflect custom and social practice as the roots for anchoring African concepts to their own frame of reference. In order to reverse the effects of cultural imperialism that generated the injustices of the past South Africa's constitutional framework must also serve as an injunction enjoining state institutions to choose the living version of African law as their point of departure whenever they respond to calls to pronounce upon issues of indigenous African jurisprudence. . In the South African context this task must entail effecting a change in the role of interpretive institutions from their pre-constitutional culture of denigrating African culture under the alienating repugnancy dispensation towards refashioning African law with indigenous values as envisioned by the ethos of transformation. The extent to which the constitutional institutions can contribute towards rehabilitating African law from being the pole-cat of South African jurisprudence to a credible component of the country's justice system is the measure of their success in this difficult and unenviable mission. . A clue to accomplishing this mission could be to develop a theory of re-indigenisation as a counterweight to the distorted jurisprudence that was developed by the discredited repugnancy clause of yester-year. Such a theory would persuade legal and constitutional interpreters to mainstream the African life-world to which to anchor the rules, principles, concepts and doctrines derived from the indigenous value system.
      PubDate: 2015-04-28T13:48:51Z
       
  • Southern African Public Law: Freedom of expression and traditional
           communities : who can speak and when' : Centre for Indigenous Law
    • Authors: Monye; Stephen M.
      Abstract: In 'Freedom of expression and traditional communities: who can speak and when'' the author juxtaposes the constitutional right to freedom of expression with respect for customary law against the backdrop of the Constitutional Court's judgment in Pilane v Pilane 2013 4 BCLR 431 (CC). In his article the author argues that the Constitutional Court should have developed the customary law around the Kgotha kgothe (general traditional meeting) custom which is pivotal to the exercise of the right to freedom of expression, association, and assembly within traditional communities.
      PubDate: 2015-04-28T13:48:50Z
       
  • Southern African Public Law: A horizontal Treaty on Cooperation in
           International Criminal Matters : the next step for the evolution of a
           comprehensive international criminal justice system'
    • Authors: Tladi; Dire
      Abstract: This paper addresses the intersection between two key concepts in international criminal justice, namely cooperation and complementarity. While it is recognised that domestic courts carry main responsibility for ensuring accountability for the commission of international crimes, there appears to be gaps in two areas. First, international law does not make provision for a comprehensive obligation to investigate and prosecute such crimes. Second, there is no comprehensive and robust interstate cooperation obligation, necessary to ensure successful domestic investigations and prosecutions. The paper assess two initiatives designed to fill these gaps, and considers their strengths, weaknesses and the possible synergies between them.
      PubDate: 2015-04-28T13:48:49Z
       
  • Southern African Public Law: The failure of an arranged marriage : the
           traditional leadership/democracy amalgamation made worse by the Draft
           Traditional Affairs Bill
    • Authors: Kohn; Lauren
      Abstract: This article presents an analysis of the recently published Draft Traditional Affairs Bill, 2013 and, in particular, clause 25 thereof. Clause 25 ('[a]llocation of roles…') contemplates something akin to the delegation of legislative power - in an unguided and unfettered manner - to 'departments' in the national and provincial spheres of government and the concomitant subdelegation of 'roles' in respect of the functional areas of these spheres to unelected traditional councils and leaders. This provision threatens not only the rule of law, but also the delicate twofold constitutional division of power: the horizontal separation of powers between the three arms of state and the vertical division of government into three spheres (national, provincial and local). Against the backdrop of the constitutional framework governing traditional leaders, this article unpacks the elements of clause 25 of the Draft Bill by addressing several specific questions which illustrate how and why clause 25 will fail to pass constitutional muster. Amongst other things, the notion of a 'role' is considered and compared with that of a 'function' and 'power' respectively. Similarly, the meaning of 'allocation' is considered and insofar as it amounts to delegation, the limits to the delegation of legislative and discretionary powers - as carved out by the Constitutional Court - are applied to the provisions of clause 25. Finally, it is determined that although customary law may be a source of administrative power for traditional leaders, these leaders may not exercise quintessential governmental power and insofar as clause 25 purports to confer such governmental powers on traditional leaders and councils, the Draft Bill impermissibly seeks to render traditional leaders a fourth sphere of government in breach of the twofold separation of powers and in violation of the explicit provisions of section 212(1) of the Constitution.
      PubDate: 2015-04-28T13:48:49Z
       
  • Southern African Public Law: Judicial independence at the regional and
           sub-regional African courts
    • Authors: Swart; Mia
      Abstract: Qualified and independent judges are essential for the legitimacy of the Courts. African regional courts will only contribute to the rule of law if the courts are legitimately composed. The purpose of this article is to consider whether judicial independence at the African regional and sub-regional courts has contributed to setting standards for the rule of law in Africa. The focus will be on the African Court of Human and People's Rights as well as the courts of the most prominent sub-regional communities. Because of the influence of the African Commission the composition of this body will also be considered.
      PubDate: 2015-04-28T13:48:48Z
       
  • Southern African Public Law: Deliberative democracy and constitutionalism
           : the limits of rationality review
    • Authors: Pretorius; J.L.
      Abstract: Recent political evaluation of rights-based constitutional review of legislation and governmental policy in South Africa suggests that our most fundamental political ideal - constitutional democracy - is internally conflicted. Democracy and constitutionalism are perceived by some to serve opposing interests. Those who think differently must demonstrate the internal coherence of constitutional democracy on two levels. The first concerns the institutional design of constitutional review, that is, the procedures, powers and composition of the designated body for exercising this function. The second concerns the extent to which the substantive normative standards employed in the course of constitutional review are necessary to facilitate democratic accountability. The article addresses the latter aspect. A deliberative understanding of democracy provides a fruitful vantage point from which to evaluate the democratic function of standards of constitutional review. The deliberative model grounds democracy in the duty of public justification through discursive engagement. Seen from this perspective, democratically informed standards of constitutional review must comply with two basic conditions, namely maximising deliberative equality and participation, and compelling justificatory accounts for collectively binding decisions in terms of a constitutionally entrenched, integrative value system. Of all the standards employed by the courts for the purpose of constitutional review (such as rationality, reasonableness, fairness, proportionality), a deferential rationality standard is most problematic in this respect. It can lead to a narrow instrumentalist perspective for the evaluation of governmental objectives, which is incapable of facilitating substantive forms of democratic control that could meaningfully enrich the deliberative basis of democratic decision making.
      PubDate: 2015-04-28T13:48:47Z
       
  • Southern African Public Law: Cooperative environmental governance : at the
           coalface of sustainable infrastructure development in South Africa
    • Authors: Du Plessis; Anel, Alberts, Reece
      Abstract: In this article, large-scale infrastructure development is situated within the sustainability paradigm with an emphasis on questions about environmental impact. While the focus is on South Africa, the article contributes to the broader body of law and governance scholarship that deals with the complexity inherent in the search for infrastructure development that meets the demands of sustainability. The authors attend specifically to the role of cooperative environmental governance (CEG). They set out to explain the existence of and difficulty surrounding the legal duty of the South African government to pursue sustainability via its development-related decision-making processes. The prominence of the notion of cooperative government in South Africa's democratic government system is highlighted where after the authors evaluate the role of CEG in government decisions that they regard to be in need of an inclusive and holistic approach to sustainability. The difficulty inherent in marrying CEG with the pursuit of sustainability in large-scale project developments is explained with specific reference to the controversial Medupi and Kusile power station projects. In conclusion, the authors briefly outline the provisions of the 2014 Infrastructure Development Act and ask if and how the Act can cater for CEG through a limited environmental impact but can still adhere to the requirements that government decisions pass the tests of the Constitution and framework environmental legislation.
      PubDate: 2015-04-28T13:48:46Z
       
  • Southern African Public Law: The liability of historical mine
           authorisation holders for rehabilitation of 'old order mine dumps'
    • Authors: Hartzer; Suzette, Du Plessis, Willemien
      Abstract: Mine dumps or tailings (i.e. 'mine waste') created by mining activities are some of the main environmental impacts of mining. Historically little or no regard was given to the environment while planning mine dumps, since planning was based on minimum cost, the availability of land and the safety of underground workings. Mine dumps continue to cause water and air pollution when abandoned without being rehabilitated.. Abandoned mines and their dumps are common features of the South African landscape. Section 46 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) provides that the state is responsible to rehabilitate abandoned mines if the owner is deceased, cannot be traced, ceased to exist or has been liquidated. Rehabilitation of these mines has extensive financial consequences for the state and indirectly to the taxpayer.. The aim of this article is to determine the responsibility of historical mining right holders for such rehabilitation. 'Historic polluters' refer to mining companies who caused pollution and environmental degradation due to mining activities before the Minerals Act came into force in 1991. Also to be addressed in this article is the question whether owners of tailings created through an authorisation issued in terms of the now repealed Minerals Act or prior legislation (old order dumps) would be able to escape their rehabilitation obligations or not. Reference will be made to the new proposed amendments to the MPRDA as well in addressing the question.
      PubDate: 2015-04-28T13:48:45Z
       
  • Southern African Public Law: Contract law and the Constitution :
           Bredenkamp v Standard Bank of South Africa Ltd (SCA) : case note
    • Authors: Bhana; Deeksha
      Abstract: The concept of fairness has long been a point of contention in our common law of contract. Indeed, many academic commentators have argued for greater (substantive) fairness in contracts on the basis of the horizontal application of the Constitution of the Republic of South Africa, 1996. Nevertheless, the Supreme Court of Appeal (SCA) has maintained consistently that fairness per se is not a legitimate ground for striking down a contract as invalid. In the words of Cameron JA (as he then was), 'the Constitution and its value system [do not] confer on Judges a general jurisdiction to declare contracts invalid because of what they perceive as unjust, or power to decide that contractual terms cannot be enforced on the basis of imprecise notions of good faith'.
      PubDate: 2015-04-28T13:48:44Z
       
  • Southern African Public Law: The registration of customary marriages:
           Banda v General Public Service Sectoral Bargaining Council (JR3273/2009)
           (26 February 2014) : case note
    • Authors: Van Niekerk; Gardiol
      Abstract: In Banda v General Public Service Sectoral Bargaining Council, the Labour Court of Johannesburg reviewed the arbitration award of the Public Service Sectorial Bargaining Council, following its confirmation of the dismissal of the appellant, an employee in the Department of Home Affairs. An important issue that emerged in this case was that of the employer's inconsistent treatment of the employee - the role of the parity principle in disciplinary fairness. The Court held that as the employee had failed to discharge the burden of proving a prima facie case of inconsistency, the employer did not have to answer to the allegation.
      PubDate: 2015-04-28T13:48:44Z
       
  • Southern African Public Law: The role of the principle of legality in
           preserving municipal constitutional integrity : journal
    • Authors: Mathenjwa; Mbuzeni Johnson
      Abstract: The exercise of supervisory powers by provincial government over local government has seen municipalities resorting to court action to prevent provincial government from violating their municipal constitutional status. The status of municipalities is determined by the Constitution of the Republic of South Africa, 1996, in terms of which government comprises three spheres, namely the national, provincial and local spheres. The local sphere of government comprises the various municipalities. It is against this background that the main focus of this note is the discussion of the role of the principle of legality - as applied by courts - in protecting municipal integrity. The Constitution confirms the status and value of local government in the new constitutional order. It reinforces this sphere of government by making provision for the establishment of local government throughout the entire territory of the Republic. The status of local government is further enhanced by the conferral of certain constitutional powers and functions on local government, and by reference to it as a 'sphere of government'. Provincial government's supervisory powers over local government and the grounds for judicial review of provincial government's actions in this regard are discussed in order to set the scene for the discussion of the role of the principle of legality in protecting municipal integrity. Finally, relevant case law is discussed and a conclusion is drawn about the role of the principle of legality in protecting municipal constitutional status.
      PubDate: 2015-04-28T13:48:43Z
       
  • Southern African Public Law: The 'intentional' sexual transmission of HIV
           : a note of caution in light of Phiri v S : case note
    • Authors: Nienaber; Annelize
      Abstract: Most legal practitioners and laypersons agree, if someone deliberately or intentionally transmits the Human Immunodeficiency Virus (HIV) to a sexual partner, that person deserves legal sanction. South Africa has opted not to establish a separate set of criminal offences to criminalise HIV transmission in this context, unlike several other African countries that have established separate crimes for the intentional or negligent transmission of HIV. In South Africa, policy considerations have prompted the application of existing criminal law principles in court cases dealing with the intentional or negligent transmission of HIV to sexual partners.
      PubDate: 2015-04-28T13:48:43Z
       
  • Southern African Public Law: Can a debtor waive rights to property
           envisaged in section 82(6) of the Insolvency Act 24 of 1936 in an
           application for voluntary surrender' : journal
    • Authors: Evans; Roger, Mthethwa, Khanyisile
      Abstract: The South African Insolvency Act 24 of 1936 creates two methods by which a debtor's estate may be sequestrated, namely voluntary surrender of a debtor's estate and compulsory sequestration of a debtor's estate. The voluntary surrender of a debtor's estate should be aimed at realising a not negligible dividend for the debtor's creditors. It is not a principal aim of South African insolvency law to obtain the debtor's release from his liabilities, but to ensure an equitable distribution of the debtor's assets for the benefit of his creditors, as is expressly required by section 3(1) of the Act.
      PubDate: 2015-04-28T13:48:42Z
       
  • Southern African Public Law: Onrus en geweld : 2014 (2) : joernaal
    • Authors: Du Plessis; Willemien, Pienaar, Juanita, Olivier, Nic
      Abstract: Die jaarlikse misdaadstatistiek is op Vrydag, 19 September 2014 afgekondig. Wat die Wes-Kaap betref, is die veiligste plekke dorpies aan die Weskus. Die sleutel tot sukses in die spesifieke dorpies is om alle misdaad, selfs klein misdade, aan te pak (Marais 'Weskus het ses veiligste dorpies' Die Burger (2014-09-24) 5). As klein misdaad dadelik aangespreek word, word groter misdaad dikwels verhoed. Mitchells Plain is die polisiekantoor waar die meeste misdaadvoorvalle die afgelope boekjaar aangemeld is (25,575) en by Nuwerus in Namakwaland (106) is die minste aangemeld.
      PubDate: 2015-04-28T13:48:41Z
       
  • Southern African Public Law: Land matters and rural development : 2014 (2)
           : journal
    • Authors: Pienaar; Juanita, Du Plessis, Willemien, Olivier, Nic
      Abstract: In this note on land, the most important measures, court decisions and literature pertaining to restitution, land redistribution, land reform, housing, land use planning, deeds, sectional titles, agriculture and rural development are discussed.
      PubDate: 2015-04-28T13:48:40Z
       
  • Southern African Public Law: Note from the special editor for the CELP
           contributions
    • Authors: Coetzee; Susan
      Abstract: The Centre for Education Law and Policy (CELP) is grateful for the opportunity to have a section in SA Public Law set aside for articles dealing with Education Law. Considering the rate at which the highest courts in South Africa, for example, the Supreme Court of Appeal and the Constitutional Court, are called upon to decide on educational matters, it is clear that not only education stakeholders such as the National Department of Basic Education, provincial departments of basic education, principals, governing bodies and educators, but also the courts struggle to benchmark the interpretation of Education Law against the Constitution. With this in mind, CELP invited articles from experts in Constitutional Law and Education Law on the theme: Benchmarking South African Education Law against the Constitution.
      PubDate: 2014-12-08T08:08:16Z
       
  • Southern African Public Law: Contempt and execution in vindicating the
           right to education
    • Authors: Ganesh; Aravind
      Abstract: In other jurisdictions, the judge almost seems to have magic powers - a solemn utterance, a bang of the gavel - and her orders solidify into reality. In South Africa, however, one is disabused of this illusion rather quickly and nowhere so swiftly as in the Eastern Cape, where the courts have on numerous occasions lamented their vanishing influence on public officials. Vindicating the constitutional right to an education requires going beyond the mere establishment of a violation of section 29 of the Constitution. The post provisioning litigation carried out by the Legal Resources Centre (LRC) in the Eastern Cape in 2013 demonstrated that the next and crucial step is to devise ways to ensure government compliance with the court orders that follow. In such cases, the choices facing litigants and counsel ultimately boil down to sending recalcitrant officials to prison or executing on government property, access to which is governed by the law of contempt of court and the State Liability Act 20 of 1957 respectively. It is hoped that the insights gained from the experience of the LRC case will prove useful to lawyers and litigants seeking effective and meaningful enforcement of court orders concerning the right to education.. From the broader point of view, the episode throws into relief both the potential and the limits of what the judiciary can do to render socio-economic justice, bring about transformative change, and uphold the rule of law.
      PubDate: 2014-12-08T08:08:15Z
       
  • Southern African Public Law: Incorporating international standards into
           national education law in South Africa : the accountability of the state
    • Authors: Joubert; Rika
      Abstract: The aim of this article is to assess the extent to which the international norms and standards related to the right to education are incorporated into the national education laws in South Africa.. The theoretical framework that I have chosen to assess the incorporation of international human rights standards into education law in South Africa is the Tomaševski framework which focuses on the minimum essentials of what states should do to deliver core obligations related to the right to education. According to the Tomaševski framework, education must be available, accessible, acceptable and adaptable. These four principles are not mutually exclusive. Each of the four principles will be discussed with reference to applicable education law and case law to assess whether the international norms and standards related to the right to education are incorporated into education law.
      PubDate: 2014-12-08T08:08:15Z
       
  • Southern African Public Law: Ambivalent adjudication of admission and
           access to schools - striking a reasonable balance between equality,
           quality and legality
    • Authors: Smit; Marius
      Abstract: South Africa comprises a dual but interdependent social order, shaped by colonialism and apartheid that was largely determined along racial lines. This social structure consists of a relatively advanced, globally interconnected political economy dominated by the mainly white, fairly affluent minority, and a relatively underdeveloped socio-economic stratum comprising mainly the black majority. Since 1994 the transition from an apartheid state to an emerging democracy had a profound effect on education in South Africa. Compulsory attendance provisions, the deracialisation of schools, and the comprehensive governmental policies to transform education all aim to address the inequities and inequalities between races and communities. As a result there has been a dramatic increase in access to schools and educational institutions since 1994. Primary education in South Africa is characterised by very high rates (98,3%) of enrolment and retention with gender parity, which is on par with education systems of the developed world. Completion rates of primary education have improved from 89,6% in 2002 to 93,8% in 2009.. However, the near universal access to basic education has resulted in overcrowding and ancillary problems in a number of public schools. The increased availability of education is undoubtedly a very good development, but the disturbing reality is that approximately 80% of South African public schools are essentially dysfunctional and do not provide effective quality education. One of the most pressing issues is the challenge of achieving equal quality education for the majority of previously disadvantaged learners without unreasonably and unfairly diminishing the quality of education that is provided in the few remaining functional schools.. Litigation between public schools and the state (Minister of Basic Education and nine provincial government departments of basic education) have primarily revolved around admission policies, pregnancy policies or the language policies of Afrikaans single-medium public schools. This discussion aims to consider the following three aspects: the right to education and the South African context of a quasi-market for quality education; case law on admission of learners to public schools; and suggestions to strike a reasonable balance between access to education and to the quality of that education.
      PubDate: 2014-12-08T08:08:14Z
       
  • Southern African Public Law: Towards successful schooling : the role of
           courts and schools in protecting conflicting individual educator and
           learner rights
    • Authors: De Waal; Elda, Serfontein, Erika
      Abstract: Conflict frequently arises between the individual rights of individuals. In resolving such conflicts, the relevant rights have to be balanced in order to reach a just equilibrium (interpreted as parity). At school level, different individuals have needs and interests that are not necessarily in harmony. This may lead to tension between individual rights. Such tension is overlaid in South Africa with its specific history of racial, ethnic, linguistic and religious conflict.. Section 36 of the Constitution of the Republic of South Africa, known as the limitation clause, is a rights-balancing mechanism that makes specific provision for the criteria to be considered when conflicting rights and interests are claimed. It is also, therefore, a mechanism for peaceful co-existence between individual claimants. In this regard, the Constitutional Court in SATAWU v Garvas emphasised the fact that a balancing process is needed when any limitation is placed on the rights of individuals, in order to ensure that such a limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Attention is drawn to the fact that exercising individual rights and freedoms does not extend to individuals who use their rights and freedoms in an unaccountable manner leading to the violation of others' rights. The Constitutional Court subsequently cautioned that if individual rights are used in such a way, the beneficiaries thereof will lose constitutional protection.
      PubDate: 2014-12-08T08:08:13Z
       
  • Southern African Public Law: The 'best interests of a child' standard in
           education : an overview of South African case law
    • Authors: Coetzee; Susan, Mienie, Riana
      Abstract: South African courts are obliged, in terms of international and national law, to apply the 'best interests' standard in all cases where a child's or children's rights and interests will be affected by their decisions. International law in this regard includes article 3(1) of the Convention on the Rights of the Child (CRC) and article 4(1) of the African Charter on the Rights and Welfare of the Child (ACRWC). National law in this regard includes section 28(2) of the Constitution of the Republic of South Africa of 1996 (Constitution) and section 7 of the Children's Act 38 of 2005 (Children's Act). This obligation to apply the 'best interests of a child' standard also applies to cases dealing with education. Except for the legal obligation, the close relation between the 'best interests of a child' standard and education is undeniable. Because the right to an education is an empowering one, it will always be in the best interests of any child to receive a good education. Similarly, if a child is in a situation where his or her best interests in the school context are disregarded, his or her education will suffer as a result. By observing the 'best interests of a child' standard, one facilitates, as Banach describes it, 'the circumstances under which a child can be allowed to develop physically, intellectually and emotionally into a well-adjusted adult'.
      PubDate: 2014-12-08T08:08:12Z
       
  • Southern African Public Law: On pushing a pen and questions about academic
           freedoms and restrictions in a transitional setting
    • Authors: Beckmann; Johan, Prinsloo, Justus
      Abstract: In a paper published online, Chaya Herman examines the relationship between political change and epistemologies and methodologies employed in research at doctorate level in the Faculty of Education at the University of Pretoria from 1985. She groups the doctoral dissertations under scrutiny together into three periods: 1985 - 1990, 1995 - 2000 and post 2000. She presents particularly negative assessments of the theses in question, characterising them among other things as research fundamentalism, patronising and pseudo-scientific knowledge, pseudo-philosophical knowledge, 'ideology masquerade [sic] as science' and disengaged knowledge lacking critical discourse and relevance. It would be understandable if the university management in general, deans of education, staff of the Faculty of Education and the PhDs who graduated during the period reviewed by Herman questioned her ex post facto analysis of their work. The paper by Herman evokes intriguing questions about issues such as fairness of comment, academic rigour and freedom, dignity and freedom of expression and how they play out in a before and after scenario of far-reaching political change and transformation. In this article we examine Herman's article (which suggests to us a certain reluctance to deal with the above questions in her analysis regarding the circumstances in which the text(s) on which she reports were written) in the light of their apparent relevance to the constitutional right to freedom of expression including academic freedom with its restrictions/limitations. Our paper introduces aspects of common law and the notion of 'who pushed the pen' into the critical consideration of the article and its possible implications for examining long-established academic and research traditions as they manifest themselves in a transformed setting. We conclude with comments on how the notion of 'pushing the pen' and knowledge of the meaning, limitation and application of the right to freedom of expression could apply to Herman's article and to all academic texts produced after the apartheid era in the democratic South Africa.
      PubDate: 2014-12-08T08:08:11Z
       
  • Southern African Public Law: Defining 'reasonable' in the school setting :
           the legal standards for school principals, administrators, and educators
           in South Africa and the United States
    • Authors: Daniel; Phillip T.K., Greytak, Scott
      Abstract: The expectations and barriers that public school managers face in today's educational atmosphere are extensive. They include a multitude of problems requiring a range of different responses. In a study published in the United States by the Stanford Educational Leadership Institute, researchers asserted that modern school principals are expected to be both well-versed in legal, contractual, and policy matters and to act as 'educational visionaries ... assessment experts, budget analysts, facility managers, [and] special program administrators'. At the same time, principals are charged with tending to the needs of often-conflicting parties, including students, parents, school district leaders, teachers, teachers' unions, and a variety of state and national governmental agencies.. Unfortunately, in analysing whether a principal is fulfilling his or her legal duties, the standard used by courts in South Africa and the United States only invites further inquiry: school principals and administrators are required to act 'reasonably'. Usually, this vague yet definable standard of 'reasonableness' reflects how a society - through its laws - believes that an objective person in society should act. Furthermore, in the case of school principals or administrators, reviewing courts in both South African and the United States have implicitly customised this objective standard as a reasonable school principal (or administrator), thus incorporating a specialised and tailored standard that reflects the unique context of the school environment.. The purpose of this article is to explore how these two nations define and describe a reasonable principal when addressing conflicts between a school and its students. In exploring this standard, the meaning of such 'reasonableness' is drawn from many sources, including the constitutions, legislation, judicial opinions, and laws of tort and delictual liability of the United States and South Africa. Ultimately, the legal duties of the 'reasonable school principal' are found to be multidimensional, complex, and roundly demonstrative of the ever-evolving nature of two distinct social landscapes.
      PubDate: 2014-12-08T08:08:11Z
       
  • Southern African Public Law: Beyond Rivonia : transformative
           constitutionalism and the public education system
    • Authors: Arendse; Lorette
      Abstract: The after effects of apartheid education are still felt acutely in our present education system. According to statistics released by the Department of Basic Education, one quarter of South African schools are overcrowded. This denotes a critical shortage of classrooms countrywide, particularly in the former black schools that continue to be overcrowded. Gauteng is not an exception to the nationwide norm. Former black schools in the province have average learner-educator ratios as high as 1:54 per class in comparison to former Model C schools with learner-educator ratios as low as 1:19 per class.. Rivonia Primary School is one of the former Model C schools in Gauteng which maintains low learner-educator ratios due to its ability to remunerate additional teachers from the school's affluent budget. In 2010, in an effort to preserve the status quo, the school refused admission to a Grade 1 learner. This decision was ultimately challenged in the South Gauteng High Court which delivered a judgment that fundamentally altered the powers of school governing bodies to determine the capacity of a school. "Capacity" in this instance refers to the maximum number of learners a school can accommodate. The Court held that the power to determine the maximum capacity of a school vests in the Department of Education and not the school governing body. The High Court judgment was subsequently overturned by the Supreme Court of Appeal. However, the Constitutional Court made a final pronouncement on the matter by agreeing with the High Court that the Department may intervene in the admission policy of a public school.
      PubDate: 2014-12-08T08:08:10Z
       
  • Southern African Public Law: The right to the city and the urban
           environment : re-imagining section 24 of the 1996 Constitution
    • Authors: Pieterse; Marius
      Abstract: The majority of the world's population now lives in cities, and the tide of urbanisation shows no sign of ebbing. People come to cities to sustain themselves and to improve their lives. Once there, many languish in extreme poverty, living in deplorable conditions and caught in cycles of unemployment, disease and exploitation. Alongside them, concrete signs of progress, privilege and opulence abound. Cities are the physical sites of inequality, of unequal distribution of income, services and the privileges of citizenship. Yet, their infrastructure, the access they provide to services essential for human survival, upliftment and flourishing, as well as the economic, social and cultural activity with which they brim, all remain symbols of a better life within reach. Cities are where socio-economic rights are enacted, asserted, struggled for, attained and denied.. The growth and functioning of cities obviously has a significant environmental impact. Urban pollution, sprawl and energy consumption pose real and lasting threats to the natural environment, whereas climate change, poor environmental health and intensifying resource scarcity increasingly threaten the ability of cities to fulfil the needs of those who inhabit them.
      PubDate: 2014-12-08T08:08:09Z
       
  • Southern African Public Law: Onrus en geweld : 2014 (1) : joernaal
    • Authors: Du Plessis; Willemien, Pienaar, Juanita, Olivier, Nic
      Abstract: Onrus en geweld: 2014 (1)
      PubDate: 2014-12-08T08:08:08Z
       
  • Southern African Public Law: Islamic headscarves, sikh turbans, crucifixes
           and proselytism : what has become of religious freedom in Europe' :
           journal
    • Authors: Barrie; George
      Abstract: Religious freedom as a right is expressed in article 18 of the Universal Declaration of Human Rights; article 18(1) of the International Covenant on Civil and Political Rights; article 8 of the African Charter on Human and Peoples Rights; article 12 of the American Convention on Human Rights and article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Also deserving mention is the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.
      PubDate: 2014-12-08T08:08:08Z
       
  • Southern African Public Law: Land matters and rural development : 2014(1)
           : journal
    • Authors: Du Plessis; Willemien, Pienaar, Juanita, Olivier, Nic
      Abstract: Land matters and rural development : 2014(1)
      PubDate: 2014-12-08T08:08:07Z
       
  • Southern African Public Law: Decisions of the extinct Appellate Committee
           of the House of Lords will continue to resonate in South African
           administrative, constitutional and international law
    • Authors: Barrie; George
      Abstract: In 2003 it was announced that a Supreme Court would replace the Appellate Committee of the House of Lords. This transpired in 2009 and saw the end of the House of Lords acting in the specific judicial capacity as the final court of appeal for the United Kingdom. The other judicial committee of the House of Lords, the Judicial Committee of the Privy Council, continues to function. For all practical purposes the Supreme Court continues to exercise the same jurisdiction as its predecessor. There is merely a change of name and a change of venue. The Supreme Court is to be headed by a President who was named as Lord Phillips of Worth Matravers.
      PubDate: 2014-10-30T10:51:42Z
       
  • Southern African Public Law: A critique of the law regarding employment of
           municipal managers and the managers accountable to the municipal manager
    • Authors: Mathenjwa; Johnson
      Abstract: The employment of municipal managers and managers that are directly accountable to municipal managers is regulated by various pieces of legislation in the new democratic constitutional dispensation. Conflicting provisions in the legislation have led to uncertainty and confusion about the legal position on the employment of these managers. This issue was complicated when the Court of first instance declared regulation 38(1) of the municipal performance regulations for managers to be invalid. A further complication came with the subsequent overturn of this decision by the Supreme Court of Appeal in MEC KwaZulu-Natal v Yengwa without the Court making an affirming finding with respect to the legality of regulation 38(1) of the municipal performance regulations for managers.
      PubDate: 2014-10-30T10:51:41Z
       
  • Southern African Public Law: South Africa and the World Trade Organization
           Anti-Dumping Agreement nineteen years into democracy
    • Authors: Ndlovu; Lonias
      Abstract: One of the most celebrated aspects of the Uruguay Round, which culminated in the establishment of the World Trade Organization (WTO) in 1995, was the adoption of the dispute settlement system. For a number of reasons, the WTO dispute settlement system has often been touted as a notable victory scored by the multilateral trading system. Firstly, compared to its predecessor under the erstwhile General Agreement on Tariffs and Trade (GATT), the dispute settlement system is often celebrated as rules-based rather than consensus-based system. Secondly, the system is praised for its transparency and strict time frames that ensure that a dispute is heard and finalised within a reasonable time. Thirdly, because the system has become more predictable, many WTO members have accepted it as the legitimate legal regime to protect their international trade interests. This acceptance is evidenced by the increasing number of disputes brought before WTO panels and the Appellate body. The legitimacy is further buttressed by the fact that litigants at the WTO come from both developed and developing countries, with participation by developing countries having increased significantly in the last decade. The above positive aspects notwithstanding, the participation of African developing countries in particular has not been that significant when compared to their developed counterparts. Most developing countries are reluctant to initiate and defend disputes at the WTO for various reasons. Compared to the rest of the WTO membership, Africa's participation has been limited and somewhat insignificant.
      PubDate: 2014-10-30T10:51:40Z
       
  • Southern African Public Law: Traditional and contemporary social
           assistance measures in South Africa : a historical perspective
    • Authors: Nkosi; Gugulethu
      Abstract: In South Africa, social assistance is provided for both in the Constitution and in the legislation. Section 27 of the Constitution provides that everyone has the right to have access to: health care services, sufficient food and water and social security, including appropriate social assistance if they are unable to support themselves and their dependants. Section 27(2) further provides that the state has a duty to take reasonable legislative and other measures within available resources to achieve the progressive realisation of each of the rights set out in section 27(1). While the Constitution does not define social assistance, the Social Assistance Act does provide a narrow definition of what social assistance is. It defines social assistance as 'a social grant including social relief of distress'. Therefore, in terms of the legislation, social assistance is limited to a monetary grant. The Taylor Committee adopted a similar viewpoint in defining social assistance. It defines social assistance as 'state provided basic minimum protection to relieve poverty, essentially subject to qualifying criteria on a noncontributory basis'.
      PubDate: 2014-10-30T10:51:39Z
       
  • Southern African Public Law: Customary laws and practices relating to land
           property and the right to equality in Swaziland's Constitution
    • Authors: Dlamini-Ndwandwe; Nonhlanhla F.
      Abstract: This article aims to reveal that the guarantees of fundamental rights to equality and non-discrimination upheld in Swaziland's Constitution as well as the international human rights instruments to which Swaziland is a party are not as secure in the way in which they are currently provided. The equality rights and the right to non-discrimination provided for in this Constitution are not absolute. Examples of the manner in which customary laws and practices pertaining to land ownership and access are interpreted illustrate the how the right to equality is compromised, resulting in gender discrimination in Swaziland. These discriminatory practices degrade women and place them in dehumanising situations that serve to keep them from effective participation in their own development and the development of the communities to which they belong. As the most important property resource, land is used as a tool to perpetuate discrimination against women. Traditional ownership rights are often interpreted through customary laws and practices to ensure unequal access between men and women to the use of land.
      PubDate: 2014-10-30T10:51:36Z
       
  • Southern African Public Law: Valid consent to objectifying treatment
           should be allowed
    • Authors: Fick; Sarah
      Abstract: In South Africa, as in various other countries, human dignity has come to be regarded as a supreme value and an objective legal norm. This understanding of dignity is not, however, always commended. One of the dangers of viewing dignity as a supreme value is that it can be used to support a paternalistic role for the state. The state has the power to make any laws as long as it can argue that it serves to protect human dignity. This kind of paternalism often inhibits the individual and personal freedom of citizens.
      PubDate: 2014-10-30T10:51:35Z
       
  • Southern African Public Law: An analysis of the doctrine of
           constitutionalism in the Zimbabwean Constitution of 2013
    • Authors: Mhodi; Peacemore Talent
      Abstract: On 22 August 2013 the new Constitution of Zimbabwe wholly came into force. The Constitution contains some ideas which are a step towards ensuring that the country moves out of the political doldrums. It provides for the doctrine of separation of powers, limits on terms of office, independence of the judiciary and institutions that foster democracy. In so doing it inspires hope that Zimbabwe will break the mould of countries that have constitutions but no constitutionalism. However, these gains are threatened by the existence of an executive president whose powers have remained unchanged. The Constitution contradicts itself in that it undermines the independence of the judiciary, the very heartbeat of a constitutional democracy, by bestowing on the president wide powers to appoint and remove judges. Thus, the balance of power being weighted in favour of one arm of government to the detriment of constitutionalism is a significant risk.
      PubDate: 2014-10-30T10:51:34Z
       
  • Southern African Public Law: Onrus en geweld : 2013 (2) : joernaal
    • Authors: Du Plessis; Willemien, Pienaar, Juanita, Olivier, Nic
      Abstract: In die loop van Augustus 2013 het die Departement van Basiese Onderwys en die Suid-Afrikaanse Polisiediens (SAPD) 'n ooreenkoms gesluit wat geweld in skole moet voorkom. Die oorspronklike ooreenkoms is reeds in 1 April 2011 onderteken, maar in Augustus 2013 is dit weer om simboliese redes onderteken. Die oorhoofse oogmerk van die ooreenkoms is om veiligheid in en by skole landwyd te bevorder. Hoe veiliger die skole, hoe meer positief is die omgewing vir leer en onderrig om in plaas te vind. Die ooreenkoms betrek alle leerders, ouers, polisielede en onderwysers om saam te werk om 'n veilige omgewing vir skoolgaande kinders te skep. Volgens mediaberigte wil dit voorkom asof kinderprostitusie toeneem.
      PubDate: 2014-10-30T10:51:33Z
       
  • Southern African Public Law: Some perspectives on constitutional conflict
           in local disaster management through the lens of Pheko v Ekurhuleni
           Metropolitan Municipality 2012 2 SA 598 (CC) : case note
    • Authors: Du Plessis; Anel, Van den Berg, Angela
      Abstract: Socially created vulnerabilities are largely ignored in the hazards and disaster literature because they are so difficult to measure and quantify. Social vulnerability is partially a product of social inequities - those social factors and forces that create the susceptibility of various groups to harm, and in turn affect their ability to respond, and bounce back (resilience) after the disaster. But it is more than that. Social vulnerability involves the basic provision of health care, the liveability of places, overall indicators of quality of life, and accessibility to lifelines (goods, services, emergency response personnel), capital, and political representation.
      PubDate: 2014-10-30T10:51:32Z
       
  • Southern African Public Law: Land matters and rural development : 2013 (2)
           : joernaal
    • Authors: Pienaar; Juanita, Du Plessis, Willemien, Olivier, Nic
      Abstract: Three new Policy Frameworks were published on 23 July 2013 (see Land Reform below). This recent increase in legislative and policy document activity may be linked to the Government's general reconsideration of land reform matters in the light of the centenary of the commencement of the Black Land Act 27 of 1913. Renewed activity within the broad field of land reform is also connected to the developmental approach that has become more pronounced since 2009. The Department of Rural Development and Land Reform (DRDLR) had already decided in 2010 to embark on a comprehensive land audit as it was 'clear that records of who earned what in South Africa; where, and what proportion of this belonged to the State, ... were uncoordinated, inadequate and incomplete'. The State Land Audit gathered information relating to the identity of the owner as well as that of the occupier/user, the rights to the land, its current usage, and the buildings and improvements existing on the land concerned. Registered state land is defined as land owned by the state (national, provincial, municipal and parastatals) and registered in the Deeds Registrar's Office as such.
      PubDate: 2014-10-30T10:51:32Z
       
  • Southern African Public Law: The courts revisit polygyny and the
           Recognition of Customary Marriages Act 120 of 1998 : case note
    • Authors: Van Niekerk; G.J.
      Abstract: Historically, African customary marriage was regarded as abhorrent by the European community owing to its polygynous nature and the institution of lobolo, and because of which they did not recognise such marriages and relegated them to the official status of 'unions'. As a consequence, the courts had in effect 'bastardised almost the entire Native population'. It is trite to say that this caused immense suffering for African families, especially for women and children who were excluded from legal protection in the familial environment. Over the years their position was remedied to a limited extent by legislation that, in certain circumstances, afforded them the same protection provided to spouses and children from civil marriages.
      PubDate: 2014-10-30T10:51:31Z
       
  • Southern African Public Law: Waiver of the right to judicial impartiality
           : comparative analysis of South African and Commonwealth jurisprudence
    • Authors: Okpaluba; Chuks, Juma, Laurence
      Abstract: This paper investigates whether judicial independence and impartiality entrenched in written constitutions and recognised by the common law as fundamental requirements of fair administration of justice can be subjected to the private law principles of waiver, estoppel or acquiescence. In an attempt to answer this question, the paper suggests that the starting point should be the interrogation of whether the right alleged to be waived emanates from the constitution or administrative law. At common law, a right can be waived, insofar as the party involved had knowledge of the right and failed to assert it. Similarly, a party who had represented a state of affairs upon which the other relied to his detriment is, in equity, estopped from going back on that understanding. However, the problem is that a waiver of a constitutional right is not easily presumed nor is the defence of estoppel readily permissible. Obviously, the individual's prerogative is limited if the right in question is in the interest of the public because an individual cannot waive a right entrenched in the Constitution or statute for the protection of the public. This paper considers the jurisprudence dealing with this limitation that emanates from several commonwealth jurisdictions. In conclusion, it posits the question whether the introduction of the concept of 'interest of justice' by the South African Constitutional Court in Bernert v ABSA Bank Ltd 2011 3 SA 92 (CC) is the saving grace, and whether, as a stand-alone concept, it can effectively substitute for waiver, estoppel or acquiescence in either the constitutional or administrative law context.
      PubDate: 2014-10-30T10:51:30Z
       
  • Southern African Public Law: The application of the doctrine of
           proportionality in South African courts
    • Authors: Barrie; George
      Abstract: Can constitutional rights be limited where there is a functioning democracy and the rule of law' It has become generally accepted that limitations on constitutional rights generated by statutory or common law in democracies are constitutionally permissible if the principle of proportionality is applied. Succinctly put, in functioning democracies the constitutionality of such limitations are determined by proportionality.. In practice the principle of proportionality is a safeguard for the individual, over and above traditional methods of controlling the state's administration. It involves a balancing act between the competing interests and objectives of the state and the interests of the individual and embodies a sense of an appropriate relationship between the ends and the means of state action.. Proportionality demands that when an individual's rights are affected or threatened by state action, only such action shall be countenanced which is suitable, necessary and not out of proportion to the gains to the community. Proportionality can thus be seen to be a synonym for reasonableness.. The birthplace of proportionality is Germany, from whence it has migrated into many countries and legal systems. It migrated to various Western European states, to Canada, to England, to New Zealand, to Australia, to South Africa, to Israel, to Central and Eastern Europe, to Asian and to South American states.. Prior to setting out the impact of the doctrine of proportionality on South African courts two jurisdictions will be examined. First, the jurisdiction of Germany as it is the jurisdiction where the proportionality doctrine had its origin and early development. Secondly, Canada, due to the fact that the limitation clause in South Africa's 1993 Interim Constitution and 1996 Constitution has been so heavily influenced by the general limitation clause (art 1) of the 1982 Canadian Charter of Rights and Freedoms and the interpretation of that clause by the Canadian Supreme Court.
      PubDate: 2014-10-30T10:51:29Z
       
  • Southern African Public Law: Our curious administrative law love triangle
           : the complex interplay between the PAJA, the Constitution and the common
           law
    • Authors: Kohn; Lauren
      Abstract: The proverbial saying goes: two's company; three's a crowd. This about encapsulates the awkward relationship between the fundamental right to administrative justice (in section 33 of the Constitution), the Promotion of Administrative Justice Act, 2000, enacted to give legislative effect to the right, and the common-law principles of judicial review of administrative action. Following the dawn of the constitutional era in 1994, there was 'a seismic shift in our administrative law'. Chaskalson JP explained the implications of this shift in the Pharmaceutical Manufacturers case:[A]dministrative law occupies ... a special place in our jurisprudence ... It is built on constitutional principles ... Prior to the coming into force of the interim Constitution, the common law was 'the main crucible' for the development of these principles of constitutional law. The interim Constitution ... was a legal watershed. It shifted constitutionalism, and with it all aspects of public law, from the realm of the common law to the prescripts of a written constitution which is the supreme law.Lawyers and Judges alike had to adapt to this shift and on balance, in the pre-PAJA era, they did not fare so badly. Currie notes that, '[t]he courts, with a few hiccups, rapidly became accustomed to this new system'. This outcome, claims Currie, was not particularly surprising, given the fact that, 'besides the constitutional grounding of the basis for judicial review (and once one is over the constitutional threshold concept of administrative action), the application of the subsumed common-law rules and principles of administrative law proceeded pretty much as it had always done'. For a while, the two thus made pretty good company. Following the enactment of the PAJA, however, this apparently happy union was upset and 'two's company' became a curious crowd. The disjuncture in the interplay between the common law, the PAJA and the Constitution has resulted in both awkward overlaps (flowing from the 'proliferation of pathways' to judicial review) and dubious oversights (flowing primarily from the PAJA's narrow and complicated definition of administrative action and the 'nonappearance of certain well-established grounds of review') in section 6(2). The net result has been a misalignment between the theoretically simple interplay anticipated between the Constitution, the PAJA and the common law that was so neatly explained in the Bato Star and Pharmaceutical Manufacturers cases, and that which has subsequently played out in practice before the courts. The judicial response to this strained union evidences both a reticence to put the theory into practice and an apparent misunderstanding of the theory itself. Thus, theory and practice - or, put differently, the hopes and the reality - pertaining to this interplay have failed to align.. In this article, I seek to illustrate why this has come to be so, and how this curious relationship has manifested itself in practice with reference to case law that evidences 'the pathologies of the judicial response'. In doing so, I draw attention to the more extensive role of the common law that has, albeit inadvertently, ensued. I thereby proceed to refute the oft-cited claim that the rights to administrative justice in section 33 of the Final Constitution, 1996, have replaced the common law principles of judicial review of administrative action entirely, thus relegating them to mere aids in the interpretation of the grounds of review set out in the Constitution and the PAJA, and related matters. The irony of the interplay that has panned out in practice is that the common law principles of judicial review of administrative action have come to play more than the mere interpretative role that was originally intended. I turn now to illustrate why and how this has come to be so.
      PubDate: 2014-10-30T10:51:29Z
       
  • Southern African Public Law: In search of judicial impact : a
           consideration of concepts and methodologies
    • Authors: Hall; Jenny
      Abstract: The courts in South Africa have the potential to play an important role in securing the democratic and equal society that is envisaged in the Constitution. Armed with the Bill of Rights, their adjudication of disputes provides an opportunity for them to influence both policy and administrative decision-making. This is because although the courts usually exercise their powers in relation to individual disputes, the resulting judgments often have broader implications for administrative decision-making. Given that government in effect takes place through a myriad of individual decisions and administrative actions, if such judgments are implemented widely they can incrementally assist in steering the on-going transformation of the public administration and contribute to the evolving rights-based jurisprudence.. Yet despite the importance of this role, very little is known about whether the courts have had an effect on policy and bureaucratic decision-making in practice. In consequence we generally do not know whether the courts are fulfilling the role that is envisaged for them in the Constitution because we are unable to answer a number of fundamental questions about their impact. For example, are the courts successful in holding officials accountable' Do officials take judgments seriously' If so, do they implement those judgments' If not, why not'. Providing answers to these questions is not a simple task. The small but growing body of judicial impact studies which assess such issues have not yet resulted in a generally accepted theory on how judicial impact studies should be undertaken, nor is there a unified approach regarding what impacts are assessed, how impact is established or which underlying theoretical approach is optimal.. The aim of this article is to explore some of the key conceptual and methodological issues that are involved in researching judicial impact. As a point of departure, the second part of this article discusses the concept of impact by considering two questions, that is: what is impact, and can it be measured' The third part of the article considers different methodological approaches. It highlights the strengths and weaknesses of the positivist and interpretivist theoretical approaches which have underpinned most impact studies to date and discusses how the use of a combined approach can offer new insights for our understanding of the reception of judicial direction by bureaucrats. That analysis is followed in the fourth part of the article by a discussion on a key limitation in the scope of existing judicial impact studies and suggests how and why future research can make a contribution to enhancing the influence of the courts. Finally, concluding remarks are made in the last section of the article.
      PubDate: 2014-10-30T10:51:28Z
       
  • Southern African Public Law: Apartheid reparations : in search of an
           appropriate remedial theory
    • Authors: Swart; Mia
      Abstract: Increasingly, South African civil society groups are mobilising to obtain reparations for the gross human rights violations committed during Apartheid. This movement is in line with the international trend to recognise victims and a right to reparations. Whereas the payment of reparations is not currently a priority to the South African government, Apartheid victims are still calling for reparations that recognise the harm done and the wrongs committed. Although the term 'Apartheid reparations' may not yet be a commonly encountered term in international law or in political discourse, there is growing recognition of the fact that the wrongs committed in the name of Apartheid are wrongs that can be compensated by the payment of financial reparations. However, would the payment of reparations necessarily be in the interest of justice' An aspect of the reparations debate that has not received much attention is the question of what theory of justice will fit the payment of reparations.. The payment of reparations is a matter not only of international law but also a matter of morality. It is often stated that one of the purposes of remedies is to restore a 'moral balance'. As generally understood, remedies serve to rectify wrongs and to correct injustice; but, partly because many societal wrongs go unremedied and partly because wrongs can also be rectified in ways other than the payment of reparations, it can be argued that 'rectification' in itself does not sufficiently justify and explain the need for reparations. In addition, 'morality' can be too subjective, vague and relative to ground the obligation to pay reparations. In this article the 5 range of remedial theories (from 'traditional' criminal law remedies to more contemporary theories fitting the setting of transitional justice) will be examined. What follows is not a mere list of the classic remedial theories. I will critically assess whether any of these theories (or combination of theories) fits the context of Apartheid reparations. A fitting theory will be a theory that fits the purpose of and the need for the remedy. To an extent a fitting theory would also legitimise the paying of reparations (it should not be assumed that the payment of reparations is inherently good and legitimate). Such a theory should be fair and have a socially transformative effect (or as a minimum requirement not cause further division and inequality).. The literature on remedial theories seems to adopt a criminal law paradigm: many scholars assume a loose analogy between criminal punishment and the payment of reparations, at least as far as the applicability of remedial theories is concerned. I will argue that the virtues or advantages of particular theories in the context of criminal law cannot be successfully transplanted to the context of rectifying state injustice. The discussion of the remedial theories will focus on the suitability of a particular theory in the context of reparation for gross human rights violations and specifically Apartheid.
      PubDate: 2014-10-30T10:51:27Z
       
  • Southern African Public Law: The ICC Pre-Trial Chamber's decision on
           Malawi regarding the failure to arrest and surrender President Al Bashir
           of Sudan : an opportunity missed
    • Authors: Dyani-Mhango; Ntombizozuko
      Abstract: Article 27 of the Rome Statute makes it clear that immunities for any state official are not to bar prosecutions by the ICC. On the other hand, article 98(1) of the Rome Statute provides that the International Criminal Court (ICC) may not proceed with a request for surrender which would require the requested state to act inconsistently with its obligations under international law with respect to the state or the diplomatic immunity of a person from a third state, unless the ICC can first obtain the cooperation of that third state for the waiver of the immunity. There is therefore a clear tension between articles 27(2) and 98(1) of the Rome Statute when it comes to state parties' cooperation with the ICC in cases of arrest and surrender of accused persons who happen to be entitled to personal immunities. This raises questions such as: are states party to the Rome Statute under an obligation to arrest and surrender a head of state not party to the Rome Statute when such a head of state has immunities under international law' Does this mean that states party to the Rome Statute are to ignore their obligations under the Rome Statute vis-à-vis international law obligations on personal immunities of the incumbent heads of state, and vice versa' I argue that the Pre-Trial Chamber failed to consider these questions and as a result, it missed an opportunity.
      PubDate: 2014-10-30T10:51:26Z
       
  • Southern African Public Law: The legacy of the 1913 Black Land Act for
           spatial planning
    • Authors: Van Wyk; Jeannie
      Abstract: On 19 June 1913 the Natives Land Act 27 of 19131 was promulgated, signalling the commencement of legalised discriminatory land legislation in South Africa. By setting aside land for occupation and use by black people, the Act resulted in the unequal distribution of land between black and white people. Together with its sister Act, the Development Trust and Land Act 18 of 1936, the area allocated for black people comprised 13% of the land while the white population enjoyed the remaining 87% of the land, despite the fact that the white population was one fifth the size of the black population.. The 1913 Act is usually viewed in the context of the inequality and discrimination with regard to land tenure. However, for spatial planning, the application of the Act and its successors had severe consequences that are still felt throughout South Africa even now, 100 years after its enactment and 22 years after its repeal by the Abolition of Racially Based Land Measures Act 108 of 1991. When we look at towns and cities as well as the rural areas throughout South Africa today, we are confronted with the legacy of the Act. We see segregation and division, with black townships located on the peripheries of towns and cities or black settlements scattered throughout the countryside. Very little integration is visible. The planning system still comprises a sophisticated scheme of planning in respect of land originally earmarked for white occupation, while a separate system of land use, based on an intricate web of legislation, is employed on land designated for use by blacks. Multiple laws still regulate planning in different areas of South Africa, resulting in confusion, inequality and fragmentation, impeding the proper planning of land use and perpetuating the deep inequalities of the past.. The 1994 Constitution aimed to be the bridge between that past and a future free from discrimination and inequality. However, these aims will not be entirely fulfilled until the planning system has rid itself of all traces of its discriminatory past.. In sketching the role of the 1913 Black Land Act for spatial planning in South Africa, this article will look at the division of land in terms of race, trace the legislation enacted to regulate planning in the different areas, indicate the role of the Constitution in eliminating the inequality caused by the Act and examine present legislative initiatives with regard to planning.
      PubDate: 2014-10-30T10:51:26Z
       
  • Southern African Public Law: Creating a CSR-enabling environment : the
           role of Government
    • Authors: Kloppers; Henk
      Abstract: The legacies of apartheid remain firmly entrenched in the social challenges facing South Africa and it seems as if the national government is, at least to some extent to date, unable to deliver social and physical infrastructure, which has necessitated the engagement of the private sector. The (perceived) failure of the welfare state has given further impetus to the move of governments towards tapping into the resources of the private sector in order to address socio-economic challenges. One instance where the resources of the private sector can be used to address socioeconomic challenges is through the private sector's corporate social responsibility (CSR) initiatives. Albareda et al argue that the challenges faced by post-industrial governments and societies (such as unemployment and poverty) and the demand on governments with limited resources to address the challenges have caused a crisis in the welfare state. This crisis requires a new model of societal governance where innovative new ways have to be found to address the social demands which cannot be met by the state. The new model of societal governance has given rise to the appearance of partnerships between governments and the private sector working in collaboration to address societal issues through a CSR approach.. The CSR movement has been described as a bundle of trends comprising regulatory frameworks aimed at improving corporate practices and leading to changes in these practices, the mobilisation of corporate role players to support the development of states, and a management trend that enhances the legitimacy of a business. Governments are regarded as one of the most important driving forces behind the CSR agenda and as a result have a particularly important role to play in the creation of an enabling CSR environment.
      PubDate: 2014-10-30T10:51:25Z
       
  • Southern African Public Law: Liability for the wrongful transmission of
           communicable diseases in South African prisons : what about HIV' :
           journal
    • Authors: Nienaber; Annelize
      Abstract: Much has been written about prison conditions in South Africa. Overcrowding, violence, poor sanitation and inadequate access to health care are the order of the day in most prisons. These conditions provide the ideal setting for the spread of disease. In the words of Anton van Niekerk: 'Viral diseases, as we know, do not all become epidemics. To become an epidemic, a niche or social context is required'.. Although the exact prevalence in South African prisons of communicable diseases, such as the Human Immunodeficiency Virus (HIV) and Tuberculosis (TB), is unknown, we may draw inferences from regional epidemiological studies. According to one study, HIV prevalence in sub-Saharan African prisons is two to 50 times greater than that of the general population. The high prevalence rates of HIV exacerbate the TB infection rates among inmates, as TB is the most common opportunistic infection among people living with HIV in Africa. TB incidence in prisons worldwide has been estimated at more than 20 times higher than in the general population. Consequently, it is not surprising that, according to the Department of Correctional Services' Annual Report for the years 2011 to 2012, the most common causes of natural deaths among inmates were TB, pneumonia and AIDS.
      PubDate: 2014-10-30T10:51:24Z
       
  • Southern African Public Law: Managing cyber-bullying in schools : lessons
           learnt from American and Australian law
    • Authors: Mienie; C.A.
      Abstract: Ryan Patrick Halligan (13), an American teenager, committed suicide after being cyber-bullied. After his death, his father had the following to say:Now certainly my son was not the first boy in history to be bullied and have his heart crushed by a pretty girl's rejection. But when I discovered a folder filled with IM exchanges and further interviewed his classmates, I have realized that technology was being utilized as a weapon far more effective and far reaching than the simple tools we had as kids. Passing handwritten notes or a 'slam' book has since been replaced with on-line tools such as IM, Websites, Blogs, cell phones, etc. The list keeps growing with the invention of every new hi-tech communication gadget.What Ryan's father describes is cyber-bullying. Cyber-bullying is a topical subject: one only has to turn on the television or open a newspaper to read about a new instance. Limited studies show that cyber-bullying does exist in South Africa. An online poll conducted by Gottfried for Reuters showed that more than 10% of parents throughout the world believed that their child was or had been a victim of cyber-bullying. More than 75% of the people questioned believed that cyber-bullying differs from other forms of bullying and requires special attention from schools and parents.
      PubDate: 2014-10-30T10:51:24Z
       
  • Southern African Public Law: Onrus en geweld : 2012(1) : joernaal
    • Authors: Du Plessis; Willemien, Pienaar, Juanita, Olivier, Nic
      Abstract: Algemeen. Veiligheidsdienste. Wapens. Terrorisme
      PubDate: 2014-10-30T10:51:23Z
       
  • Southern African Public Law: Land matters and rural development : 2012(1)
           : journal
    • Authors: Pienaar; Juanita, Du Plessis, Willemien, Olivier, Nic
      Abstract: General. Land restitution. Land reform. Unlawful occupation. Housing. Land use planning. Deeds. Sectional titles. Surveying. Expropriation. Minerals. Agriculture and rural development
      PubDate: 2014-10-30T10:51:22Z
       
  • Southern African Public Law: From 'Kill the Boer' to 'Kiss the Boer' - has
           the last song been sung'. Afri-Forum v Julius Sello Malema 2011 12
           BCLR 1289 (EQC) : case note
    • Authors: Pillay; Karmini
      Abstract: Unfortunately, words do hurt. So too do other forms of expression that are used to convey messages in both the private and public spheres of society. Few forms of expression, since the cartoon controversies depicting the Prophet Mohammed with a bomb-shaped turban, have captured the media's attention to soaring heights and caused national frenzy in what has come to be known as the 'Kill the Boer' song. The lyrics are part of a well-known freedom song 'Ayesaba Amagwala' which regained prominence when it was adopted by former African National Congress Youth League (ANCYL) leader, Julius Malema, just a few years ago. The song rapidly polarised the country into factions on the basis of race, ethnicity and language. Within days, the South African Human Rights Commission (SAHRC) received hundreds of complaints over the singing of the song. The song rose to further notoriety when it elicited claims by some that it was to blame for the savage murder of far rightwing separatist supremacist and Afrikaner Weerstandsbeweging (AWB) leader, Eugene Terre'Blanche, on 3 April 2010 by two black farm workers as well as a number of other farm murders.
      PubDate: 2014-10-30T10:51:21Z
       
  • Southern African Public Law: Foreword : the 'Constitutional Moment'
    • Authors: Thro; William E.
      Abstract: In 2004, the University of Pretoria sponsored an international education law conference to celebrate the tenth anniversary of multi-racial democracy in South Africa and the fiftieth anniversary of the US Supreme Court's decision in Brown v Board of Education. For three days, scholars from South Africa, the United States, and Europe discussed equal educational opportunities. The organisers of the Conference correctly recognised that the 1994 South African election and the 1954 American court decision were watershed events for each nation. After Brown and the election of Mandela, each nation reaffirmed the self-evident truth - all are created equal.
      PubDate: 2014-10-30T10:51:20Z
       
  • Southern African Public Law: Constitutional protection of the right to
           education
    • Authors: Van der Vyver; Johan D.
      Abstract: Education is important: education takes place in the family environment; education through exposure to the public domain; education by the mass media; education within the enclave of public entertainment and theatrical performances, and much more. Most important, though, in the context of the present survey is education in schools and other educational institutions.
      PubDate: 2014-10-30T10:51:19Z
       
  • Southern African Public Law: How 'basic' is basic education as enshrined
           in section 29 of the Constitution of South Africa'
    • Authors: Van der Merwe; Suzaan
      Abstract: The preamble to chapter 9 of the National Planning Commission's National Development Plan contains the following quotation:. . We are Africans.. We are an African Country .... We learn together, we love reading.. Each community has:. a school;. teachers who love teaching and learning;. a library filled with the wealth of books;. a librarian.. All our citizens can read, write, converse and value idea and thought.We are fascinated by scientific invention and its use in the advancement of ourlive [sic].. We live the joy of speaking many languages.. . This picture was painted with a view to 2030 - not 2012 - that is, 34 years after the right to education was incorporated into our Constitution. Section 29 of the Constitution establishes a right to basic and further education, but does not articulate a specific education standard.
      PubDate: 2014-10-30T10:51:18Z
       
  • Southern African Public Law: An analysis of the 'right' to education in
           South Africa and the United States
    • Authors: Daniel; Philip T. K., Greytak, Scott
      Abstract: In the winter of 1944, approximately five months before the Allied forces launched their invasion at Normandy, three-term United States President Franklin D Roosevelt delivered his annual State of the Union Address. Given the unparalleled instability wrought by World War II, Roosevelt's immediate focus was on the topic of national security, and in his speech that night to the American people, the President outlined his plan for 'lasting peace'. Roosevelt's blueprint for the future, however, did not stress military strength or economic resiliency. Instead, Roosevelt spoke of a 'second bill of rights', which collectively would 'spell security' and move the country forward to 'new goals of human happiness and well-being'. That evening, Roosevelt articulated eight 'second generation' rights that would together establish an enduring foundation for the nation's future. Among these rights was 'the right to a good education'.
      PubDate: 2014-10-30T10:51:18Z
       
  • Southern African Public Law: The Constitution as a limitation on
           government power in educational contexts
    • Authors: Joubert; Rika
      Abstract: Government authority can be described as the power to prescribe and the power to enforce such prescription. The term 'power' is often used as a synonym for 'authority', for example, when referring to the separation of powers doctrine. A contentious issue in the history of Western political thought is the problem of how to control governmental power. Although governmental power is essential to the realisation of certain values in societies, such as justice, freedom and equality before the law, every government may deteriorate and become destructive of the values it was intended to promote. The fundamental place of parliament in a democratic constitutional system is undisputed; its real role and influence, however, is more debatable. The question that arises is whether parliaments should be regarded as rubber-stamp chambers for the majority party'
      PubDate: 2014-10-30T10:51:17Z
       
  • Southern African Public Law: American school finance litigation and the
           right to education in South Africa
    • Authors: Bauries; Scott R.
      Abstract: This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a fiduciary theory of socioeconomic duties, could provide the Constitutional Court with a principled theory to undergird its ongoing rights-protective project that seeks to operationalise socioeconomic rights while also respecting institutional boundaries.
      PubDate: 2014-10-30T10:51:16Z
       
  • Southern African Public Law: How far will the courts go in ensuring the
           right to a basic education'
    • Authors: Skelton; Ann
      Abstract: Gazing into the crystal ball of socio-economic rights jurisprudence in 1998, former Chief Justice Ismael Mahomed speculated about a difficulty the courts may face in adjudicating socio-economic rights. The difficulty that he identified was that enforcement of the relevant right may not only involve a negative protection against the violation of a particular right, but also the duty to deliver that right. A court order of this nature might compel the legislature to reorganise their priorities or budgets in a manner that affects the rights of others. He selected a hypothetical example in the field of education law.
      PubDate: 2014-10-30T10:51:16Z
       
  • Southern African Public Law: Religion in the classroom : comparative
           observations
    • Authors: Venter; Francois
      Abstract: As a profound characteristic of humanity that cannot be circumvented or dismissed, faith, religion and religious practices are ubiquitous. There is a direct link between the propagation of religions and education. Despite the fact that faith is a matter of intensely personal conviction, religious practices inevitably have communal and public dimensions, whereby society is directly involved. Since religion is foundational to strong and often oppositional convictions, it is essential that the state as keeper of the social peace is involved in regulating the repercussions of religious practices in society. The question here is how successful the South African educational system currently is in its regulation of religion in the classroom for the purposes of maintaining balance in this multireligious society.
      PubDate: 2014-10-30T10:51:15Z
       
  • Southern African Public Law: A constitutional perspective on the rights of
           children with disabilities in an educational context
    • Authors: Boezaart; Trynie
      Abstract: It is estimated that there are 500-650 million people living with disabilities in the world and of these people, 150 million are children. In Africa, less than 10% of children with disabilities are attending school. The rights of children with disabilities are a human rights and social justice issue. This paper critically evaluates the rights of children with disabilities from a South African constitutional perspective.
      PubDate: 2014-10-30T10:51:14Z
       
  • Southern African Public Law: Access to and the provision of preschool
           education : the trajectory since 1994
    • Authors: Beckmann; Johan, Phatudi, Nkidi
      Abstract: This paper was precipitated by the hypothetical question, 'If you were in charge of education in South Africa today, given the unequal socio-economic circumstances of people in the country in the past, now and probably in the future, and given the unsatisfactory quality of education provided to the overwhelming majority of learners in the country, and given the skills, values and knowledge needs of the country's economy as well as of our society at large, would you prioritise the spending of money on pre-school education and elevate its status to become part of the fundamental right to a basic education''
      PubDate: 2014-10-30T10:51:13Z
       
  • Southern African Public Law: The limitation of the educator's right to
           strike by the child's right to basic education
    • Authors: Horsten; Debra, Le Grange, Corlene
      Abstract: Education is both a human right in itself and an indispensable means of realising other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities. Education has a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy ... and controlling population growth. Increasingly, education is recognised as one of the best investments States can make. But the importance of education is not just practical: a well-educated, enlightened and active mind, able to wander freely and widely, is one of the joys and rewards of human existence.
      PubDate: 2014-10-30T10:51:12Z
       
  • Southern African Public Law: Pregnant learners' sexual rights : a
           constitutional perspective
    • Authors: Coetzee; Susan
      Abstract: In 2001 the South African Department of Health estimated the mean age for sexual debut to be 15 years for girls and 14 years for boys. In 2007, however, Berry and Hall claim that, by the end of their childhood (at 18 years), 42% of South African girls and 63% of boys have had sex. Of these, 6% of girls and 12% of boys will have had sex before their fifteenth birthday. One thing is clear from the statistics above: a substantial number of girls will have their first experience of sexual intercourse while still at school. There are thus a considerable number of girl learners at risk of falling pregnant.
      PubDate: 2014-10-30T10:51:12Z
       
  • Southern African Public Law: Cyber bullying : a legal framework for South
           African educators
    • Authors: Moodley; Isabel
      Abstract: In South Africa, the conduct of learners is regulated by certain provisions in the South African Schools Act, specifically section 8 which authorises the school governing body to 'adopt a code of conduct for learners after consultation with learners, educators and parents'. The rationale of a code of conduct is to establish a 'disciplined and purposeful school environment, dedicated to the improvement and maintenance of the quality of the learning process'. Bullying or peer victimisation (as it is sometimes referred to in South Africa) opposes this rationale and is fast becoming an ever increasing problem for schools and educators all over the world, including South Africa.
      PubDate: 2014-10-30T10:51:11Z
       
  • Southern African Public Law: Memory, space and gender : re-imagining the
           law
    • Authors: Van Marle; Karin, De Villiers, Isolde, Beukes, Eunette
      Abstract: The overall focus of this piece is the intricate and complex relation between memory, space, gender and law within the context of what may be called post-apartheid. Our claim is that the understanding and meaning of law in the setting conceived of as post-apartheid should be altered, transformed and given the current state of disenchantment, re-imagined. Our view is that new understandings and meanings could disclose alternative ways for the application and functioning of law. Many perspectives have been given on the nature, meaning and working of post-apartheid law. Our concern in this article is to highlight the significance of memory, space and gender for post-apartheid law and the becoming of post-apartheid jurisprudence.
      PubDate: 2014-10-30T10:51:10Z
       
  • Southern African Public Law: Onrus en geweld : 2012
    • Authors: Du Plessis; Willemien, Pienaar, Juanita, Olivier, Nic
      Abstract: Suid-Afrika is tans 127ste uit 158 lande op 'n wêreldvredesindeks (www.visionofhumanity.org). In ses jaar het Suid-Afrika 29 plekke gedaal. Die indeks kyk onder meer na militêre besteding, geweld en respek vir menseregte. Suid-Afrika se buurlande (buiten Zimbabwe) lê onder die eerste 60 lande (sien ook Meyer 'SA val ver op vredesindeks' Beeld (2012-06-26) 13). Verskeie vorme van geweld het in die verslagtyd voorgekom, waarvan die opspraakwekkendste geweld die van stakers in die Marikana-gebied was. Verskeie stakings landwyd het daarna gevolg (Anon 'Mining unrest not symptom of inequality' Mail and Guardian (2010-09-27) 2; Steyn 'Rand in free fall as investors flee over strike unrest' http://mg/co/za/article/2012-10-08-rand-in-free-fall-as-investors-flee-overstrike-unrest (datum van gebruik 2012-10-09)). Bendegeweld het ook voorgekom en die hulp van die verdedigingsmag is gevra om bendegeweld in die Wes-Kaap onder bedwang te bring (Styan 'Bendes: SAPD kap Zille' Beeld (2012-07-11) 4). Verskeie plaasmoorde het voorgekom en die landelike gemeenskappe het gevra dat die regering hulle veiligheidsplanne vir die gebiede begin implementeer (Van der Walt 'Stel landelike veiligheidsplan nou in, vra AgriSA' Beeld (2012-06-26) 8).
      PubDate: 2014-10-30T10:51:09Z
       
  • Southern African Public Law: Land matters and rural development : 2012
    • Authors: Du Plessis; Willemien, Pienaar, Juanita, Olivier, Nic
      Abstract: The Deputy Minister of Rural Development and Land Reform announced in April 2012 that land reform changes will be implemented relating to the 'commercial willing-buyer, willing-seller and traditional land tenure property ownership systems.' He indicated that 'a comprehensive database of land ownership, use and control and was ready to move in a "fast-paced" and "aggressive" direction' (Legalbrief Today (2012-04-05)). In spite of the Deputy Minister's optimism, a report published by the Department of Rural Development and Land Reform (DRDLR) revealed that the redistribution target of 30% will only be reached in 54 years (Joubert 'Grondplan eers oor 54 jaar bereik' Beeld (2012-05-24) 8).
      PubDate: 2014-10-30T10:51:08Z
       
  • Southern African Public Law: The pliability of legal texts under a
           transformative constitution in perspective
    • Authors: Akintayo; Akinola E.
      Abstract: A long-standing thorny controversy is whether legal texts constrain judges or whether extra-legal factors influence judges in spite of the provisions of law. There is evidence to suggest that most legal practitioners trained under the conservative common law culture do believe in the objective reality of the law and the constraining power of legal texts. There are others, however, like the scholars of the Critical Legal Studies movement (CLS scholars) who believe that legal texts do not constrain judges.
      PubDate: 2014-10-30T10:51:07Z
       
 
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