Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120110005&lang=en vol. 14 num. 5 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Demystification of the inquisitorial system</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000500001&lng=en&nrm=iso&tlng=en Criminal procedure in South Africa is outdated and does not produce speedy justice. The Criminal Procedure Act requires a revamp. Lessons can be learnt from the inquisitorial systems but local lawyers have preconceived ideas, based on ignorance, about those systems. It would be useful to consider the successful convergence of the accusatorial and inquisatorial systems attained in the rules of international criminal courts for local application. <![CDATA[<b>Seeking deliberation on the unborn in international law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000500002&lng=en&nrm=iso&tlng=en SUMMARY International human rights instruments and jurisprudence radiate an understanding of international law as also serving to protect fundamental rights and the interests of the individual. The idea that human rights provide a credible framework for constructing common norms among nations and across cultures is both powerful and attractive. If the protection of being human serves as the common denominator in human rights discussion, and if human rights are deeply inclusive, despite being culturally and historically diverse, then a failure to deliberate on the legal status and protection of the unborn may be seen as a failure to extend respect where it is due. Such deliberation is required, irrespective of the fact that jurisprudential debate on the unborn and on abortion is complex and controversial. The protection of human life, well-being, and dignity are essential aims of the United Nations Charter and the international system created to implement it. Although there have been collective efforts resulting in substantial development in international human rights law, the international community has not approached the legal status and protection of the unborn as a matter of urgency - this, while much has been accomplished regarding women, children, animals and cloning. This article therefore argues for the development of a deliberative framework so as to further the recognition (not necessarily in an absolute sense) of the unborn in international law, bearing in mind that opposition to abortion does not of itself constitute an attack on a woman's right to respect for privacy in her life. The article also sets out what such deliberation on the legal status and protection of the unborn entails, against the background of a procedurally-rational approach. <![CDATA[<b>Legislative exclusions or exemptions of property from the insolvent estate</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000500003&lng=en&nrm=iso&tlng=en SUMMARY The general policy in South African insolvency law is that assets must be recovered and included in the insolvent estate, and that this action must be to the advantage of the creditors of the insolvent estate. But there are several exceptions to this rule and an asset that is the subject of such an exception may be excluded from the insolvent estate. The Insolvency Act, however, does not expressly distinguish between excluded and exempt assets, thereby resulting in problem areas in the field of exemption law in insolvency in South Africa. It may be argued that the fundamental difference between excluded and exempt assets is that excluded assets should never form part of an insolvent estate and should be beyond the reach of the creditors of the insolvent estate, while exempt assets initially form part of the insolvent estate, but in certain circumstances may be exempted from the estate for the benefit of the insolvent debtor, thereby allowing the debtor to use such excluded or exempt assets to start afresh before or after rehabilitation. Modern society, sociopolitical developments and human rights requirements have necessitated a broadening of the classes of assets that should be excluded or exempted from insolvent estates. This article considers assets excluded from the insolvent estates of individual debtors by legislation other than the Insolvency Act. It must, however, be understood that these legislative provisions relate to insolvent estates and thus generally overlap in one way or another with some provisions of the Insolvency Act. <![CDATA[<b>Pre- and post-trial equality in criminal justice in the context of the separation of powers</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000500004&lng=en&nrm=iso&tlng=en SUMMARY The previous Westminster criminal justice system entailed a different kind of separation of powers insofar as it concerns the role of state prosecutors. In the Westminster system prosecutors are part of the executive branch, whereas they were a split-off from the judiciary in constitutional states and function like a de facto second organ of the third branch of state power. Currently executive interference in state prosecutions often leads to pre-trial inequality. A further difficulty arises from the unconsidered manner in which the former royal prerogative of pardoning was retained in the Constitution of the Republic of South Africa, 1996. It used to be a royal veto of judicial sentences in the constitutional monarchy of the former Westminster model. Although the corresponding veto of parliamentary legislation by the head of state did not survive into modern times, the pardoning power has not been discontinued. Section 84(2)(j) thus causes an irreconcilable conflict with section 165(5) of the Constitution which guarantees the legally binding force of judicial decisions. It undermines the rule of law and leads to post-trial inequality in the execution of sentences. The parole system, which dates back to 1959, likewise allows the executive to overrule judicial sentences and is in conflict with section 165(5). The perpetuation of the status quo in criminal justice is in effect leading to a re-Westminstering of the constitutional state. <![CDATA[<b>Unpacking the law and practice relating to parole in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000500005&lng=en&nrm=iso&tlng=en SUMMARY The possibility of the early release of offenders on parole is meant to act inter alia as an incentive to ensure that prisoners behave meritoriously while serving their sentences. The South African Correctional Services Act No.111 of 1998 deals with the release of offenders on parole. This article discusses the jurisprudence emanating from South African courts dealing with various aspects of parole. In particular, the article deals with the following issues: parole as a privilege; the role of the executive and the legislature in the parole system; the period to be served before an offender is paroled; the stipulated non-parole period; and the courts' intervention in releasing prisoners on parole. <![CDATA[<b>The concept of a "decision" as the threshold requirement for judicial review in terms of the Promotion of Administrative Justice Act</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000500006&lng=en&nrm=iso&tlng=en The Promotion of Administrative Justice Act 3 of 2000 defines administrative action as "any decision [of a specified kind]" taken by specified persons or entities. The Act goes on to define decision as "any decision of an administrative nature made, proposed to be made, or required to be made, as the case may be", including certain specified categories of decision. The decision in Bhugwan v JSE Ltd 2010 3 SA 335 (GSJ) highlights the distinction between a "decision", as so defined (which may be amenable to judicial review in terms of the Act) and an inchoate decision (that is not amenable to such review).. The judgment in this case is, to date, the only judicial authority in South Africa on this critical threshold requirement to be established by any applicant for judicial review in terms of the Promotion of Administrative Justice Act.