PER: 2012 Volume 15 No 2
Contents
17 August 2012
Orationes
- Die rol van en beperkings op die regbank om sosiale vrede in Suid-Afrika te bevorder / Bertelsmann, E
- Law and language in a multilingual society / Harms, LTC
Conference papers
- Can decentralisation contribute to promoting rule-of-law structures? The democratic republic of Congo, Rwanda and Burundi as examples / Hamann, H
- Decentralisation in Africa: a critical review of Uganda's experience / Ojambo, H
- The implications of federalism and decentralisation in socio-economic conditions in Ethiopia / Zimmermann-Steinhart, P & Bekele, Y
Articles
- Public access to private land in Scotland / Miller, DLC
- The relevance of a contextualisation of the state-individual relationship for child victims of armed conflict / Robinson, JA
- The role of international sustainable development law principles in enabling effective renewable energy policy - a South African perspective / Barnard, M
- The interpretation of the amended RAF act 56 of 1996 and the regulations thereto by the courts with regard to "serious injury" claims / Steynberg, L & Ahmed, R
- The Road Accident Fund and serious injuries: the narrative test / Slabbert, M & Edeling, HJ
- A South African perspective on mutual legal assistance and extradition in a globalized world / Watney, M
- Achieving "decent work" in South Africa? / Cohen, T & Moodley, L
- Forceful arrests: an overview of section 49 of the criminal procedure act 51 of 1977 and its recent amendments / Botha, R & Visser, J
- Addressing the spectre of cyber terrorism: a comparative perspective / Cassim, F
- 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 / Van der Poll, L
- The role of SADC institutions in implementing SADC treaty provisions dealing with regional integration / Saurombe, A
- Challenges confronting health care workers in government's ARV rollout: rights and responsibilities / Vawda, YA & Variawa, F
- 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? / Sibanda, OS
Note
- Do boards of trustees of South African retirement funds owe fiduciary duties to both the funds and fund members? The debate continues / Marumoagae, MC
Editorial
This edition contains two orationes, three edited conference papers, twelve articles and a note.
Orationes
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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.
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Emeritus Judge Louis Harms , formerly of the South African Supreme Court of Appeal, addressed the 12th International Conference of the International Academy of Linguistic Law in Bloemfontein on the 1st of November 2010. The paper on which this address was based, is published here. Judge Harms spoke on the critical issues of law and language in a multilingual society and concluded that the role of the law in protecting or promoting language is limited. The protection or promotion of minority languages such as Afrikaans, he said, was in the hands of the speakers of such languages.
Conference Papers
The establishment of accountable and democratic governments is not merely a matter of the constitutional framework in any given country. It is also a matter of servicing citizens, which is primarily done on the basis of decentralized and local government(s). In 2011, the Gesellschaft für afrikanisches Recht (African Law Association) held its annual meeting at the Max Planck Institute for Comparative Public and International Law in Heidelberg, Germany. Apart from discussing constitutional developments in Northern Africa, the Association's annual meeting focused on decentralization and local government. The participants were not only academic experts but also practitioners in the field. We are pleased to publish three of the papers dealing with decentralization presented at the conference. The organisers and co-editors of this part of the present edition, Hatem Elliesie and Thilo Marauhn, also wish to acknowledge the support provided by the Max Planck Institute, by the African Law Association and the editor of PER and express their appreciation for the efforts of the authors for their insightful contributions on the subject.
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Hartmut Hamann , professor on dispute resolution and international law at Freie Universität Berlin and Technische Universität Chemnitz addressed decentralisation in the Democratic Republic of Congo, Rwanda and Burundi and offered valuable insights into the francophone discourse.
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Henry Ojambo of the Makarere University in Uganda reviewed Uganda's experience with decentralisation critically and provided interesting (background) information and reasons for the contradictions between the form and content of decentralization as exercised in Uganda.
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Petra Zimmermann-Steinhart and Yakob Bekele , both advisors to and experts in the House of Federation of the Federal Democratic Republic of Ethiopia showed, with reference to empirical data, the impact of decentralization in Ethiopia in three of the decentralized sectors, viz. health, water and education.
Articles
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In his article on public access to private land in Scotland, David Carey Miller of the University of Aberdeen and the Institute of Advanced Legal Studies in London considers the radical reform of Scottish land law and the "new" right of public access to private land for recreational purposes and the right to cross land. He also puts this in the context of the protection of property under the European Convention on Human Rights.
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With reference to child victims of armed conflict, Robbie Robinson of the NWU addresses the difficult question of the nature of the relationship in law between the state and the individual, both as bearers of legal subjectivity, making use of the theory of public subjective rights.
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The relationship between sustainable development and renewable energy is the theme of the contribution by Michelle Barnard of the NWU. She employs the principles developed in international law as criteria for assessment of South African renewable energy law and policy.
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Loma Steynberg and Raheel Ahmed of UNISA analyse the procedure under the South African Road Accident Fund for the determination of the nature of injuries sustained by claimants against the Fund for non-patrimonial loss suffered after a motor-vehicle accident.
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Magda Slabbert of UNISA and Herman Edeling, neurosurgeon, show that the South African Road Accident Fund is supposed to provide just compensation to persons who have suffered following a road accident. The claiming process for general damages is however cumbersome, confusing, complicated and socially unjust, requiring some formal adjustments and appropriate assessment of serious injuries.
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Murdoch Watney of the University of Johannesburg considers the question whether, given the opportunities afforded to criminals by globalization, South Africa has succeeded in establishing an appropriate framework to enable it to make a positive contribution to the fields of mutual legal assistance in cases of extradition.
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In their contribution Tamara Cohen and Luendree Moodley of the University of KwaZulu-Natal consider, with reference to five statistical indicators, the progress made by South Africa towards the attainment of decent work objectives against the background of the fundamental goal of the International Labour Organisation to secure decent and productive work for all.
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Rinda Botha and Jo-Mari Visser of the University of the Free State present a critical and comparative discussion of the historical development of section 49 of the Criminal Procedure Act of 1977 concerning the use of violence by the police, which some consider to guarantee suspects a right to flee.
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Aspects of cyber terrorism, its meaning, terrorist use of the Internet and countermeasures to curtail it in various countries are highlighted by Fawzia Cassim of UNISA and she points out that an environment has been created which may easily be infiltrated by cyber terrorists.
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With reference to the jurisprudence of the United States Supreme Court, which she finds to be highly suspect both intellectually and philosophically, Letetia van der Poll of the University of the Western Cape poses the question whether pornography is speech. She points out that the South African Constitutional Court has explicitly followed the US Supreme Court's philosophical justification as the basis for allowing "non-obscene" sexually explicit material as free speech and expression.
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In his analysis, Amos Saurombe of UNISA emphasizes the fact that member states' commitment to the work of institutions within a regional economic community like SADC is critical for the full implementation of its Treaty and its Protocols, but that SADC institutions are not capable of completely fulfilling their legal obligations, partly as a result of the legal instruments themselves being incomplete and being in need of further reform.
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Yousuf Vawda of the University of KwaZulu-Natal and Farhana Variawa, specialist radiologist, argue that, while significant recent discourse and jurisprudence have focused on the rights of patients in South Africa, the situation and rights of providers of health care services have not been adequately ventilated. They emphasize the challenges faced by the human resources personnel located at the centre of the roll-out of the government's ambitious programme of anti-retroviral (ARV) therapy in the combat against HIV/AIDS.
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Omphemetse Sibanda of UNISA evaluates the Canadian and the EU's implementation of the WTO's resolution that developed nations could export patented pharmaceutical drugs to member states in order to address public health challenges such as HIV/AIDS and other epidemics. He dismisses the arguments against TRIPS flexibilities-inspired legislation and similar measures as mostly mere rhetoric and hair-splitting, stating that they sometimes unwarrantedly dismiss a workable solution to public-health problems.
Note
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In his note on the South African retirement fund industry, Clement Marumoagae , candidate attorney in Benoni ventures to 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 to the members of those funds.
Recent Submissions
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Do boards of trustees of South African retirement funds owe fiduciary duties to both the funds and fund members? The debate continues
(2012)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 ... -
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?
(2012)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 ... -
Challenges confronting health care workers in government's ARV rollout: rights and responsibilities
(2012)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 ... -
The role of SADC institutions in implementing SADC treaty provisions dealing with regional integration
(2012)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 ... -
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
(2012)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 ... -
Addressing the spectre of cyber terrorism: a comparative perspective
(2012)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 ... -
Forceful arrests: an overview of section 49 of the criminal procedure act 51 of 1977 and its recent amendments
(2012)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 ... -
Achieving "decent work" in South Africa?
(2012)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 ... -
A South African perspective on mutual legal assistance and extradition in a globalized world
(2012)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 ... -
The Road Accident Fund and serious injuries: the narrative test
(2012)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 ... -
The interpretation of the amended RAF act 56 of 1996 and the regulations thereto by the courts with regard to "serious injury" claims
(2012)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 ... -
The role of international sustainable development law principles in enabling effective renewable energy policy - a South African perspective
(2012)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 ... -
The relevance of a contextualisation of the state-individual relationship for child victims of armed conflict
(2012)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 ... -
Public access to private land in Scotland
(2012)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 ... -
The implications of fedralism and decentralisation in socio-economic conditions in Ethiopia
(2012)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 ... -
Decentralisation in Africa: a critical review of Uganda's experience
(2012)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 ... -
Can decentralisation contribute to promoting rule-of-law structures? The democratic republic of Congo, Rwanda and Burundi as examples
(2012)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 ... -
Die rol van en beperkings op die regbank om sosiale vrede in Suid-Afrika te bevorder
(2012)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 ...