Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> vol. 15 num. 2 lang. es <![CDATA[SciELO Logo]]> <link></link> <description/> </item> <item> <title><![CDATA[<b>The role of and limitations on the judiciary in the promotion of social peace in South Africa</b>]]> Judge Eberhard Bertelsmann of the North Gauteng High Court delivered the address published here as he delivered it in Afrikaans in the series of FW de Klerk lectures in Potchefstroom on 20 February 2012. He dealt with the role of and limitations on the judiciary to promote social peace in South Africa, pointing out the achievements of the courts in the establishment of the constitutional dispensation over the past decades. He however also showed that the courts are over-burdened and that court administration leaves much to be desired. Litigants and practitioners do not hesitate to abuse the system and ugly incidents of unethical conduct have marred the professions. Judges however do not take these trends lying down and measures to rectify the situation are well underway. Fair, understandable, predictable and speedy adjudication without fear, favour or prejudice continues to be the contribution of judges to the protection of the South African democracy. <![CDATA[<b>Law and language in a multilingual society</b>]]> Judge Eberhard Bertelsmann of the North Gauteng High Court delivered the address published here as he delivered it in Afrikaans in the series of FW de Klerk lectures in Potchefstroom on 20 February 2012. He dealt with the role of and limitations on the judiciary to promote social peace in South Africa, pointing out the achievements of the courts in the establishment of the constitutional dispensation over the past decades. He however also showed that the courts are over-burdened and that court administration leaves much to be desired. Litigants and practitioners do not hesitate to abuse the system and ugly incidents of unethical conduct have marred the professions. Judges however do not take these trends lying down and measures to rectify the situation are well underway. Fair, understandable, predictable and speedy adjudication without fear, favour or prejudice continues to be the contribution of judges to the protection of the South African democracy. <![CDATA[<b>Can decentralisation contribute to promoting rule-of-law structures?</b>: <b>The Democratic Republic of Congo, Rwanda and Burundi as examples</b>]]> Decentralisation can enable a country's population to exercise political influence at regional and local level. This presupposes a willingness to assume responsibility. It also presupposes that those in power are willing to hand over some of the power. Together these two factors can foster rule-of-law structures. This paper describes the constitutional and administrative framework for decentralisation in DR Congo, Rwanda and Burundi. It also explores the actual situation in those countries with reference to legal literature from those countries. In addition, it raises questions regarding the effect of instruments of international law on the decentralisation processes (international organisations, regional integration and international cooperation). <![CDATA[<b>Decentralisation in Africa</b>: <b>A Critical Review OF Uganda's Experience</b>]]> Since the rise to power of the Movement government under the leadership of Yoweri Museveni in 1986, Uganda has largely been show-cased as an emerging democracy on the continent. Among other things, Museveni's regime has been acclaimed for the restoration of periodic national elections, the making of the Constitution and the overall promotion of democratic governance, most especially through the adoption of a decentralised system with a commendable institutional and legal framework. Decentralisation is believed to promote service delivery at the local level, accountability for government resources by local leaders, and the involvement of the masses in local planning and the implementation of government programmes. It is now over twenty years since decentralisation was adopted as a system of government but the quality of service delivery and the accountability for government resources at the local level remains just as deplorable as the extent to which the masses are involved in the planning and implementation of government programmes in their localities. This paper examines the challenges that inhibit the realisation of the noble objectives of decentralisation, notwithstanding the apparently impressive institutional and legal framework. <![CDATA[<b>The implications of federalism and decentralisation on socio-economic conditions in Ethiopia</b>]]> This paper analyses impacts of the federal system and the decentralisation of functions to the district level on Ethiopia's socio-economic development. Firstly we will highlight the principles of the Ethiopian federal system as well as those of the 2001/2002 decentralisation process. Secondly we will show how the decentralisation has impacted on two of the decentralised sectors, health and education, by comparing pre-federal, pre- and post-decentralisation data. In both cases an overall increase in allocated budgets and an increase in the scale of the services offered since decentralisation started in 2001 has been found. Studies also show that the increase in services is not homogenous across regional states. Within the four larger regions, strongly disadvantaged woredas at the outset of the decentralisation process have profited most, which shows that the constitutional imperative of equal access to services is being implemented. Some of the regions where decentralisation was started later have still not caught up with the other regions, a phenomenon which is mostly due to capacity deficits. The article concludes that decentralisation in combination with consistent development policies has led to an overall improvement in service delivery, while some challenges regarding quality and equity still need to be addressed. <![CDATA[<b>Public access to private land in Scotland</b>]]> This article attempts to understand the radical reform of Scottish land law in its provision for a general right of public access to private land introduced in 2003 as part of land reform legislation, an important aspect of the initial agenda of the Scottish Parliament revived in 1999. The right is to recreational access for a limited period and the right to cross land. Access can be taken only on foot or by horse or bicycle. As a starting point clarification of the misunderstood pre-reform position is attempted. The essential point is that Scots common law does not give civil damages for a simple act of trespass (as English law does) but only a right to obtain removal of the trespasser. Under the reforms the longstanding Scottish position of landowners allowing walkers access to the hills and mountains becomes a legal right. A critical aspect of the new right is that it is one of responsible access; provided a landowner co-operates with the spirit and system of the Act access can be denied on the basis that it is not being exercised responsibly. But the onus is on the landowner to show that the exercise of the right is not responsible. Although the right applies to all land a general exception protects the privacy of a domestic dwelling. Early case law suggests that the scope of this limit depends upon particular circumstances although reasonable 'garden ground' is likely to be protected. There are various particular limits such as school land. Compliance with the protection of property under the European Convention on Human Rights is discussed. The article emphasises the latitude, open to nations, for limitations to the right of ownership in land in the public interest. The extent of the Scottish access inroad illustrates this. This leads to the conclusion that 'land governance' - the subject of the Potchefstroom Conference at which the paper was initially presented - largely remains a matter for domestic law; the lex situs concept is alive and well. <![CDATA[<b>The relevance of a contextualisation of the state-individual relationship for child victims of armed conflict</b>]]> The relationship between the individual and the State is discussed in this contribution. The argument is put forward that both the State and the individual are legal subjects endowed with legal subjectivity. In their relationship it must be accepted that the State is not only endowed with State sovereignty, but also that it prescriptively makes use of its authority. However, theirs is a legal relationship characterised by reciprocal rights and duties so that the balance point in their relationship must as a matter of course be determined legally. As an explanatory model the theory of public subjective rights, which is of German origin, is applied. This theory can serve only as a starting point, though, as it fails to address certain fundamental questions. The viewpoints of authors of the so-called Reformed Tradition will therefore be applied to elaborate on the theory. By adopting this approach it is endeavoured to explain that the relationship between the State and the individual may not be viewed as one characterised by the abuse of State authority or excessive individual claims against the State. <![CDATA[<b>The role of international sustainable development law principles in enabling effective renewable energy policy - A South African perspective</b>]]> It is universally accepted that renewable energy is an important contributing factor towards the promotion of sustainable development. The implementation of renewable energy needs to be regulated in an effective manner which in turn necessitates the formulation of law and policy geared towards sustainable development. Recent policy developments in South Africa propose to facilitate the promotion of sustainable development through the implementation of renewable energy, among others. In terms of existing energy policy in South-Africa, the interconnectivity of renewable energy and sustainable development is evident. Most notably, the White Paper on Renewable Energy of 2003 promotes increased access to affordable renewable energy in order to contribute to sustainable development. Moreover, the 2008 first review of the National Energy Efficiency Strategy of the Republic of South-Africa of 2005 states that in order for the country's renewable energy policy to be considered sustainable, it needs to facilitate development in the social, economic and environmental spheres. Notwithstanding, attaining the goal of sustainable development depends on whether all its effecting principles are catered for in the policy developments. Accordingly, in order to ascertain whether South-African law and policy can successfully facilitate/enable sustainable development via the implementation of renewable energy, a specific methodology is proposed. In terms of the New Delhi Declaration of 2002 there are 7 principles of international law effecting sustainable development. These principles will be used as criteria in a principled assessment of South-African renewable energy law and policy in order to establish whether the goal of promoting sustainable development would be effected through the national policy developments. <![CDATA[<b>The interpretation of the amended RAF Act 56 of 1996 and the regulations thereto by the courts with regard to "serious injury" claims</b>]]> The RAF Amendment Act 19 of 2005 came into effect on 1 August 2008 and sections 17(1) and 17(1A) introduced the concept of "serious injury". This entails that a third-party claimant who wishes to claim compensation for non-patrimonial loss suffered after a motor-vehicle accident has to prove that his or her injury is "serious". If the claimant's injury is not considered "serious" no compensation will be awarded for the non-patrimonial loss suffered and, furthermore, the claimant will also not be entitled to claim any compensation from the wrongdoer in terms of common law (s 21 of the RAF Act). In a sequence of unreported cases the courts have provided guidelines on the procedure to be followed in serious-injury claims. Firstly, a claimant must submit himself or herself to an assessment by a medical practitioner registered under the Health Professions Act. Secondly, the medical practitioner must assess if the injuries sustained by the claimant fall within the list of "non-serious injuries", and if so, compensation for non-patrimonial loss will not be awarded. If the injury is not on the list of non-serious injuries, the medical practitioner may assess the injuries and if they result in 30 per cent or more of whole-person impairment ("WPI") compensation for non-patrimonial loss may be awarded. If the evaluation is that the 30 per cent of WPI cannot be reached, non-patrimonial loss may still be claimed if the injuries fall within the "narrative test", namely (a) resulting in a serious long-term impairment or loss of a body function; (b) constituting permanent serious disfigurement; (c) resulting in severe long-term mental or severe long-term behavioural disturbance or disorder; or (d) resulting in the loss of a foetus. Aplaintiff may use either of the two tests to establish serious injury and in such a manner qualify for compensation for non-patrimonial loss.A medical practitioner must complete and submit a serious-injury assessment report on the RAF 4. If the RAF is not satisfied that the injury has been correctly assessed they must (a) reject the serious-injury assessment report within 60 days and furnish reasons for the rejection; or (b) direct that the third party submit himself or herself, at the cost of the Fund, to a further assessment. Thereafter the RAF must either accept the further assessment or dispute the further assessment within 90 days. An Appeal Tribunal, consisting of three independent medical practitioners, has been created to hear these disputes. <![CDATA[<b>The road accident fund and serious injuries</b>: <b>The narrative test</b>]]> The Road Accident Fund Amendment Act 19 of 2005 came into effect on 1 August 2008. This Act limits the Road Accident Fund's liability for compensation in respect of claims for non-pecuniary loss to instances where a "serious injury" has been sustained. A medical practitioner has to determine whether or not the claimant has suffered a serious injury by undertaking an assessment prescribed in the Regulations to the Act. The practitioner has to complete a RAF 4 report. In doing so the practitioner must assess the injury in terms of the American Medical Association's Guides to the Evaluation of Permanent Impairment (6th ed). If the injury is considered to have resulted in less than 30 per cent of the whole person impairment the medical practitioner should apply the narrative test. The article focuses on the narrative test but also discusses reasons why the regulations do not fulfil the requirements of the Act; reasons why the Guidesis not adequate to the task; the impact of the circumstances of an injured person on disability; problems with the existing wording of the narrative test; shortcomings on the RAf 4 form; the administrative process as well as the appeal tribunals. <![CDATA[<b>A South African perspective on mutual legal assistance and extradition in a globalized world</b>]]> This contribution focuses on the modalities of mutual legal assistance and extradition from a South African perspective. The question is posed whether South Africa has succeeded to establish the required framework as a fully fledged member of the international community to make a positive contribution in the fields of mutual legal assistance and extradition subsequent to its international political isolation during the apartheid era. Although the international community derives substantial benefit from a borderless global world, it has as a result also to deal with the negative impact of globalization on international crime. Physical and/or electronic crimes are increasingly committed across borders and may be described as borderless, but law enforcement (combating, investigation and prosecution of crime) is still very much confined to the borders of a state. Criminal networks have taken advantage of the opportunities resulting from the dramatic changes in world politics, business, technology, communications and the explosion in international travel and effectively utilize these opportunities to avoid and hamper law enforcement investigations. As a sovereign state has control over its own territory it also implies that states should not interfere with each other's domestic affairs. The correct and acceptable procedure would be for a state (requesting state) to apply to another state (requested state) for co-operation in the form of mutual legal assistance regarding the gathering of evidence and/or extradition of the perpetrator. Co-operation between states are governed by public international law between the requesting and requested state and the domestic law of the requested state. The South African legislature has increasingly provided for extraterritorial jurisdiction of South African courts in respect of organized crime and terrorism. It does however appear that existing criminal justice responses are experiencing challenges to meet the demands of sophisticated international criminal conduct. Mutual legal assistance and extradition provisions may show that the world is becoming smaller for fugitives and criminals, but the processes are far from expeditious and seamless. An overview of the South African law pertaining to mutual legal assistance and extradition indicates that the South African legislative framework and policies as well as international treaties make sufficient provision to render international assistance in respect of mutual legal assistance and extradition. The role of the courts in upholding the rule of law and protecting the constitutionally enshrined bill of rights, is indicative of the important function that the judiciary fulfills in this regard. It is important that extradition is not only seen as the function of the executive as it also involves the judiciary. It appears that South Africa has displayed the necessary commitment to normalize its international position since 1994 and to fulfill its obligations in a globalized world by reaching across borders in an attempt to address international criminal conduct. <![CDATA[<b>Achieving "decent work" in South Africa?</b>]]> The fundamental goal of the International Labour Organisation is the achievement of decent and productive work for both women and men in conditions of freedom, equity, security and human dignity. The South African government has pledged its commitment to the attainment of decent work and sustainable livelihoods for all workers and has undertaken to mainstream decent work imperatives into national development strategies. The four strategic objectives of decent work as identified by the ILO are: i) the promotion of standards and rights at work, to ensure that worker's constitutionally protected rights to dignity, equality and fair labour practices, amongst others, are safeguarded by appropriate legal frameworks; (ii) the promotion of employment creation and income opportunities, with the goal being not just the creation of jobs but the creation of jobs of acceptable quality; (iii) the provision and improvement of social protection and social security, which are regarded as fundamental to the alleviation of poverty, inequality and the burden of care responsibilities; and (iv) the promotion of social dialogue and tripartism. This article considers the progress made towards the attainment of these decent work objectives in South Africa, using five statistical indicators to measure such progress namely: (i) employment opportunities; (ii) adequate earnings and productive work; (iii) stability and security of work; (iv) social protection; and (v) social dialogue and workplace relations. It concludes that high levels of unemployment and a weakened economy in South Africa have given rise to a growing informal sector and an increase in unacceptable working conditions and exploitation. The rights of workers in the formal sector have not filtered down to those in the informal sector, who remains vulnerable and unrepresented. Job creation initiatives have been undermined by the global recession and infrastructural shortcomings and ambitious governmental targets appear to be unachievable, with youth unemployment levels and gender inequalities remaining of grave concern. Social protection programmes fail to provide adequate coverage to the majority of the economically active population. Social dialogue processes and organisational structures fail to accommodate or represent the interests of the informal sector. Until these problems are overcome, the article concludes, it remains unlikely that decent work imperatives will be attained. <![CDATA[<b>Forceful arrests</b>: <b>an overview of section 49 of the Criminal Procedure Act 51 of 1977 and its recent amendments</b>]]> The debate concerning the use of violence by the police force is an endless one. Section 49 of the Criminal Procedure Act 51 of 1977 serves as a framework for the use of violence by police officers during arrests in South Africa. While some hold the opinion that the powers of the police in this respect should be restricted, others see the 2003 redefined section 49 as a legislative guarantee of a suspect's right to flee. Against this background this article has as its focus a critical discussion of the historical development of section 49 as well as the recent amendments of the same. The current legal position in South Africa is also compared with that in the United States of America as well as in the United Kingdom. Finally, certain conclusions and recommendations are made in order to enhance more favourable regulation of the employment of force in effecting arrests. <![CDATA[<b>Addressing the spectre of cyber terrorism: a comparative perspective</b>]]> This article looks at the definition of cyber terrorism and terrorist use of the Internet. The article evaluates cyber terrorist threats facing countries such as the United States of America, the United Kingdom, India and South Africa. The article also examines measures introduced by the respective governments in these countries to counteract cyber terrorist threats. Finally, the article will propose a way forward to counteract such possible threats in the future. The face of terrorism is changing. The convergence of the physical and virtual worlds has resulted in the creation of a "new threat" called cyber terrorism. Cyber terrorism is one of the recognised cyber crimes. The absence of suitable legal frameworks to address cyber terrorism at national and regional levels, the lack of adequate safeguards, the lack of cyber security strategies and the pre-occupation of countries with internal factors have all contributed to the creation of an environment that can be easily infiltrated by cyber terrorists. The horrific events of 9/11 provided the impetus for many countries to introduce anti-terrorist legislation. The United States of America, United Kingdom, India and South Africa have introduced legislation to address the threat of cyber terrorism. <![CDATA[<b>But is it speech? Making critical sense of the dominant constitutional discourse on pornography, morality and harm under the pervasive influence of United States first amendment jurisprudence</b>]]> Under the pervasive influence of United States First Amendment jurisprudence, adult gender-specific sexually explicit (or "pornographic") material is conceptualized, and thus protected in the "marketplace of ideas", as a particular mode of expression; to be viewed as part of the fabric of an open, free and democratic society. The values which free expression are seen to promote centre upon the advancement of political debate and promotion of personal self-fulfilment and autonomy. Attempts to conceptualise sexually explicit material within a gender-specific human rights framework present distinct challenges which, in a patriarchal legal and political design, appear to be near insurmountable. These challenges seem to be related to the enduring impact of the common law conception of obscenity (with its strong moralistic overtones) on the jurisprudence of the United States Supreme Court, coupled with a subjective libertarian-inspired test, and the Supreme Court's general reluctance (also echoed by the South African Constitutional Court) to consider a gender-specific conception of harm emanating from feminist arguments premised upon women's constitutional interests in human dignity, equality and bodily integrity. The social revolution of the 1960s, coupled with the women's liberation movement, called for a distinct departure from the traditional conception of sexually explicit material as a mode of constitutionally defendable free speech and expression, a conception which unavoidably calls for a moralistic approach, separating acceptable forms of expression from those not deemed worthy of (constitutional) protection (termed "obscenity", specifically created to satisfy the "prurient interest"). The Supreme Court's obscenity jurisprudence is characterised by two key features. First, the court subscribes to an abstract concept of free speech, which proceeds from the assumption that all speech is of equal value, and thereby surmises that "non-obscene" sexually explicit material has social value, as do esteemed works of literature and art. Secondly, the court assumes that all individuals have equal access to the means of expression and dissemination of ideas and thus fails to acknowledge substantive (and gendered) structural inequalities. A closer inspection reveals that the Supreme Court's justification of why freedom of expression is such a fundamental freedom in a constitutional democracy (and the reason that "non-obscene" sexually explicit material consequently enjoys constitutional protection) is highly suspect, both intellectually and philosophically. And yet the South African Constitutional Court has explicitly recognised the same philosophical justification as the basis for free speech and expression. The Constitutional Court has, in fact, both supported and emphasised the idea that freedom of expression stands central to the concepts of democracy and political transformation through participation, and has expressly confirmed the association between freedom of expression and the political rights safeguarded under the Bill of Rights. Moreover, the Constitutional Court has also endorsed the conception of adult gender-specific sexually explicit material as a form of free expression. And yet by embracing a moralistic, libertarian model of free expression, the very ideal of a free, democratic and equal society, one in which women can live secure from the threat of harm, is put at risk. A moralistic, libertarian model is simply not capable of conceptualising sexually explicit material as a possible violation of women's fundamental interests in equality, dignity and physical integrity. This article has a two-fold objective. The first is to critically examine the dominant discourse on adult gender-specific sexually explicit material emanating from United States jurisprudence (and its resonance in South African constitutional thought), and secondly, to assess whether this particular conception is sensitive to the possible constitutional harm which may result from an abstract liberal-inspired accommodation of sexually explicit material in an imagined free and open democratic society, such as the one presented by the South African legal and constitutional contexts. <![CDATA[<b>The role of Sadc institutions in implementing Sadc treaty provisions dealing with regional integration</b>]]> Without some level of institutionalisation or other means of enforcement, national commitment to regional trade integration is bound to face some challenges. Accordingly, transnational trade is obviously inhibited when the validity and enforcement of contracts, obligation and rules cannot be guaranteed beyond the term of office of an administration. Thus Member States' commitment to the work of institutions within a regional economic community like SADC is critical for the full implementation of the SADC Treaty and its Protocols. The Protocol on Trade has been hailed as the most important for integration in SADC. This paper will indicate that institutions are essential drivers of organisations and their role in regional integration is therefore very important. However under the current legal and institutional framework, the SADC regional integration agenda faces major challenges of implementation. SADC institutions are not capable of completely fulfilling their legal obligations, although in some instances the lack of fulfilment was clearly a result of the legal instruments themselves being incomplete and needing further reform. <![CDATA[<b>Challenges confronting health care workers in government's ARV rollout: rights and responsibilities</b>]]> South Africa is renowned for having a progressive Constitution with strong protection of human rights, including protection for persons using the public health system. While significant recent discourse and jurisprudence have focused on the rights of patients, the situation and rights of providers of health care services have not been adequately ventilated. This paper attempts to foreground the position of the human resources personnel located at the centre of the roll-out of the government's ambitious programme of anti-retroviral (ARV) therapy. The HIV/AIDS epidemic represents a major public health crisis in our country and, inasmuch as various critical policies and programmes have been devised in response, the key to a successful outcome lies in the hands of the health care professionals tasked with implementing such strategies. Often pilloried by the public, our health care workers (HCWs) face an almost Herculean task of turning the tide on the epidemic. Unless the rights of HCWs are recognised and their needs adequately addressed, the best laid plans of government will be at risk. This contribution attempts to identify and analyse the critical challenges confronting HCWs at the coalface of the HIV/AIDS treatment programme, in particular the extent to which their own rights are under threat, and offers recommendations to remedy the situation in order to ensure the successful realisation of the ARV rollout. <![CDATA[<b>Comparative analysis of access to patented HIV/AIDS pharmaceutical medicines through the Canadian and EU trips flexibilities measures: are they efficacious or overly burdensome and ineffective measures?</b>]]> This paper evaluates the Canadian and the European Union's (EU) implementation of the World Trade Organisation (WTO) General Council Decision of 2003, which resolved that developed nations could export patented pharmaceutical drugs to member states in order to address public health challenges such as Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome (HIV/AIDS), tuberculosis, malaria and other epidemics, such states including Sub-Saharan Africa (SSA). The author makes a primarily textual appraisal of how and to what extent the Canada Access to Medicine Regime (CAMR) and European Union (EU) Regulations benefit, for instance, SSA countries in the WTO in their quest to make essential medicine more accessible. The author argues that although there are identifiable complexities inherent in the Canadian and the EU's access to pharmaceutical product regimes, there are far more important incentives and benefits that can be reaped in taking advantage of the respective systems. The author recommends that countries facing public health crises/emergencies, such as SSA countries, and non-governmental organisations (NGOs) take advantage of the regulatory flexibilities of Canada and the EU in their efforts to provide their communities with essential HIV/AIDS treatment, and treatment for other diseases such as malaria. The author dismisses the arguments against TRIPS (Trade-Related Aspects of Intellectual Property) flexibilities-inspired legislation and similar measures as mostly mere rhetoric and hair-splitting, because they sometimes unwarrantedly dismiss a workable solution to public-health problems. <![CDATA[<b>Do boards of trustees of South African retirement funds owe fiduciary duties to both the funds and fund members?The debate continues</b>]]> Over the years, the South African retirement fund industry has experienced major regulatory changes. These changes were aimed at imposing a higher standard of governance on the boards of trustees governing various pension funds. As such, there has been a debate within the retirement fund industry as to whom the board, as the governing and managing body of the retirement fund, is accountable. South African courts and tribunals adjudicating pension fund related disputes and the retirement industry at large seem to share the view that the board of trustees is accountable to both the fund and its members. In that the board of trustees owes fiduciary duties to both the fund and its members, meaning that the board is required to act in the best interest of the fund and its members. However, in this paper I demonstrate that the boards of trustees of South African Pension Funds are accountable to and owe fiduciary duties only to the fund they serve and not members of those funds. Furthermore, I submit that at the very best the board owes a duty of good faith towards the members of the fund. In order to substantiate my submissions, I distinguish the legal position relating to trust law from the law relating to retirement funds in South Africa.