2024-03-29T13:14:31Zhttps://repository.nwu.ac.za:443/oai/requestoai:repository.nwu.ac.za:10394/19992019-06-24T09:52:54Zcom_10394_1150com_10394_1149col_10394_1994
Pienaar, Gerrit
2009-06-08T13:29:01Z
2009-06-08T13:29:01Z
1998
Pienaar, G.J. 1998. Konstitusionele voorskrifte rakende regspersone. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 1(1): 167-204 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/1999
The interim Constitution of 1993 and the final Constitution of 1996 contain specific provisions applicable to juristic persons. Juristic persons are also entitled to the fundamental rights contained in the Bill of Rights to the extent that these rights are applicable to them. It must be kept in mind that juristic persons have peculiar characteristics and that the fundamental rights of juristic persons differ from those of natural persons.
Juristic persons are also under the obligation to respect the fundamental rights of natural persons and other juristic persons to the extent provided for in the Bill of Rights. In the case of juristic persons acting as organs of state the vertical application of the Bill of Rights safeguards the fundamental rights of persons against state action or interference. The circumstances where juristic persons act as organs of state are discussed with reference to case law. Difference of opinion exists regarding the horizontal application of the Bill of Rights, that is the application of the Bill of Rights to private law relationships. In terms of the interim Constitution the Bill of Rights was applied horizontally in an indirect manner. Section 35(3) provided that the common and customary law must be developed by both the Supreme Court and the Constitutional Court to promote the values underlying an open and democratic society based on human dignity, equality and freedom, without completely abolishing the common and customary law.
The final Constitution provides in section 8(2) that natural and juristic persons in private law relationships are also bound by the Bill of Rights if, and to the extent that, such rights are applicable, taking into account the nature of the rights and the nature of any duty imposed by such right. The direct horizontal application of the Bill of Rights is, however, limited by section 36. The extent of the rights of juristic persons and limitations on them in private law relationships are investigated, taking into account the right of freedom of association in terms of section 18. The various principles to be taken into consideration in the case of clubs, religious organisations, educational institutions, political organisations and trading and professional institutions are discussed.
Afrikaans
Konstitusionele voorskrifte rakende regspersone
Article
oai:repository.nwu.ac.za:10394/19952016-04-28T21:26:49Zcom_10394_1150com_10394_1149col_10394_1994
Frowein, J A
2009-06-08T13:24:25Z
2009-06-08T13:24:25Z
1998
Frowein, J.A. 1998. Constitutional law and international law at the turn of the century. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 1(1):1-15 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/1995
Constitutional law and international law operate in simultaneous conjunction and reciprocal tension. Both fields seem to have overcome the great challenges of destruction and neglect in the course of the 20th century.
Both after World War I and World War II the world experienced new waves of constitution making. In both cases the current German constitutions (the Weimar Constitution of 1919 and the Grundgesetz of 1949) were influential.
Characteristic of constitution-making in this century, is the final victory of liberal constitutions based on the rule of law, the Rechtsstaat, fundamental rights, meaningful control of public powers and the establishment of constitutional courts.
Following the destruction of World War II, the notion of the Sozialstaat emerged strongly in Germany. In contrast to the Constitution of the United States of America, the principle of the responsibility of the state for social justice has emerged in almost all new constitutions, including Russia, Poland, South Africa, Spain, Italy and Portugal.
Where courts are given the mandate to interpret bills of rights, fundamental rights have been developed into foundation stones of the legal system. The presence in a Bill of Rights of restrictive clauses, is important for its analysis. Generally restrictive clauses in new constitutions try to limit the possibilities of restriction.
The importance of constitutional rules establishing and legitimizing the political organs, must not be overlooked. Of particular importance is the degree of control over the head of state, a positive attitude among political actors towards the constitution and the protection of the interests of minorities in a democratic system.
In the field of Public International Law much of Kant's ideal of an international confederation of peace has been realized. Since 1990 the United Nation's Security Council has shown the potential of becoming a directorate for the community of nations.
International law has also been instrumental in the worldwide recognition of human rights. Especially in Europe, Convention Law has had a strong impact. Furthermore, global and regional systems of regulation have tended to alter the legal attitude towards state sovereignty. It may be that the South African constitutional approach in terms of which international law is subject to constitutional and other national law, is not in line with international tendencies.
Constitutional law and international law at the turn of the century
Article
oai:repository.nwu.ac.za:10394/20012019-06-24T09:36:49Zcom_10394_1150com_10394_1149col_10394_1994
Maré, C
2009-06-08T13:31:07Z
2009-06-08T13:31:07Z
1998
Maré, C. 1998. Gesinspolitiek en die ouer-kind verhouding. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 1(1): 224-279 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/2001
The family-unit did, in one form or another occur since the beginning of man’s existence. The aim of the unit was to sire children and to provide for them until they reached maturity. To realise this provisional aim, a decision making process was required. The child and her parents’ individual interests can generate conflict where decisions have to be made regarding various questions, for example: which church the child should attend and or whether she should attend any church; which school a child should be enrolled in; with whom the child may associate and with whom not; if the child may use contraceptives, and whether an adolescent female may of her free will request or reject an abortion. Henceforth it must be kept in mind that the decision making process, i.e. family politics, is unique for each parent-child relationship.
Various social, economic and cultural factors can influence the handling of conflict in the decision making process. Furthermore, fundamental rights can influence the decision making process differently in respectively the common law parent-child relationship and the customary law parent-child relationship. Central to the latter situation is the fact that fundamental rights recognise individual rights, while customary law is founded in communalism. It is furthermore important to note that the nature of the parent-child relationship is not neutral, but is determined by historical and social elements within the community.
There are various statutory provisions in terms of which courts can intervene in the exercise of parental authority and can even terminate it, over and above the fact that the courts possess a common law competence as upper guardian. However, no law expressly grants the court the power to intervene in the parent-child relationship where conflict arises within the decision making process. The courts only have the authority to intervene in the parent-child relationship in the event of physical maltreatment or molestation of a child, in divorce proceedings, and where consent must be granted for a minor’s marriage. Even the family advocate is employed as mediator only in divorce matters. The court as common law upper guardian of minors, will only intervene in the parent-child relationship if it is of the opinion that such a step is in the interests of the child and it will therefor not be done lightly.
The current constitutional provisions regarding children in a multi-cultural society has brought about changes in the parent-child relationship. Reading together sections 9 and 28 of the 1996-constitution puts it beyond doubt that any child under the age of 18 years is a person possessing fundamental rights. The state is drawn in as a third party in the parent-child relationship and must ensure that the interests of the child, that is fundamental rights, are guaranteed. Section 28 of the 1996-constitution goes further than section 30 of the 1993-constitution and provides a description for the meaning of parental care. The reference to family care, parental care and appropriate alternative care in the 1996-constitution can be indicative of the fact that the changed relationships wherein children find themselves within the community (other than the nuclear family) are recognised. The constitutional provisions also causes a change of emphasis in the parent-child relationship. The emphasis changes from the parent’s rights and responsibilities to the rights that a child may claim. The child can enforce her rights against the state and her parents. The yardstick which determines whether the child is entitled to its constitutional rights, is in whether such a claim would be in the best interests of the child. If the child approaches the High Court as the common law upper guardian to enforce her rights, or to strike a balance in the decision making process, the state must supply the child with the necessary legal representation.
Due to the relevant constitutional provisions, the parent-child relationship can no longer be considered to be regulated merely by rules of authority, but the emphasis has shifted to the promotion of the child’s interests. The best interest of the child must thus be the guiding principle in all legal proceedings. It implies further that the South African family law approach to balancing the decision making process within the parent-child relationship has also changed.
Afrikaans
Gesinspolitiek en die ouer-kind verhouding
Article
oai:repository.nwu.ac.za:10394/19982016-04-28T21:27:06Zcom_10394_1150com_10394_1149col_10394_1994
Swanepoel, J
2009-06-08T13:27:53Z
2009-06-08T13:27:53Z
1998
Swanepoel, J. 1998. Die dialektiek in die waardes van die 1996 Grondwet. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 1(1): 111-165 [http://www.nwu.ac.za/p-per/index.html]
1787-3781
http://hdl.handle.net/10394/1998
In his paper The Dialectics in the Values of the 1996 Constitution Jan Swanepoel discusses various value statements in the 1996 Constitution of the Republic of South Africa and focuses the attention on indications of a lack of coherence as far as these value statements are concerned.
He does this against the background of some introductory perspectives on the 1996 Constitution. In this regard he points out that the 1996 Constitution, as successor to the 1993 Constitution with its set of thirty four constitutional principles, can be regarded as a document of political and ideological compromise. He points out that constitutions (and in particular the value statements in Bills of Rights) generally tend to be formulated rather broadly in order to promote flexibility and adaptability. He also focuses the attention on the fact that such a dialectic of values point to the variety of interests that has to be harmonized in a modern state, something which is unmistakably the case in South Africa with its heterogeneous society.
The 1996 Constitution contains a variety of "value terms". A closer study of these terms does, however, indicate that these terms (value, principle, foundation, and the like) are not used in a very systematic or technical fashion.
The problems regarding the value statements are, however, not only of a terminological nature. There are also some substantive problems, as becomes clear from a discussion of value terms in the Preamble and in Sections 1 and 7 of the 1996 Constitution. Swanepoel indicates that a tension exists between what can be called the "process" formulation in section 1(a) and the "state of affairs" formulation of the values in section 7(1). . While section 1(a) speaks of "the achievement of equality" and "the advancement of human rights and freedoms", section 7(1) simply makes mention of "equality" and "freedom". The dialectic between these two formulations is discussed with reference to other relevant sections of the 1996 Constitution.
The discussion is placed against the background of a so-called blank space in the 1996 Constitution. While the 1993 Constitution characterized South Africa as a "constitutional state", the 1996 does not contain such a characterization. It is argued in this paper that the process phrasing in section 1 (a) ties in with a social democratic view of the state as an institution bringing about social change. The "state of affairs" phrasing of section 7(1) is, on the other hand, more in line with a liberal notion of a Rechtsstaat.
The issue concerning what type of state South Africa is under the 1996 Constitution, will depend on which of the two poles in the above-mentioned dialectic the primary emphasis will be placed.
Since the 1996 Constitution has been ratified by the Constitutional Court, it is regarded as extremely unlikely that the above-mentioned terminological problem will be rectified in future. Swanepoel provides a diagrammatic representation of the principle, values and objectives mentioned in the 1996 Constitution.
Further research is envisaged concerning the possibility of developing a juridical model of reconciling the social-democratic and Rechtsstaat tendencies in the 1996 Constitution within the framework of a broader vision on the state’s task in bringing about justice.
Afrikaans
Die dialektiek in die waardes van die 1996 Grondwet
Article
oai:repository.nwu.ac.za:10394/20002016-04-28T21:45:40Zcom_10394_1150com_10394_1149col_10394_1994
Du Plessis, W
Scheepers, T E
2009-06-08T13:30:08Z
2009-06-08T13:30:08Z
1998
Du Plessis, W. & Scheepers, T.E. 1998. Tradisionele leiers: erkenning en die pad vorentoe. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 1(1): 206-279 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/2000
There has for many years been legal recognition of Traditional Leaders in South African laws, such as the Black Administration Act 38 of 1927 and regulations and proclamations issued in terms of other legislation. Recently legal recognition was confirmed in the Constitution of the Republic of South Africa Act 108 of 1996.
Additional recognition of Traditional Leaders and the institution of Traditional Leadership is found in the various provincial legislation providing for Provincial Houses of Traditional Leaders and the establishment and functioning of the National Council of Traditional Leaders.
Yet the institution of Traditional Leadership has over the past few years given rise to much controversy. There are those who argue that the institution is outdated and others who regard Traditional Leaders as custodians of customary values and the only leaders who are truly responsible for the well being of communities historically and religiously entrusted to them.
Traditional leaders fulfil a variety of functions in rural society, including that of presiding officer in customary courts, mediator of disputes, advisor in agricultural and family matters, guardian of young, old, infirm and abandoned. They perform legislative, executive and judicial functions according to the wish of the majority of the members of the tribe.
It became apparent, that de facto Traditional Authorities are the only existing form of local government in rural areas in South Africa. It seems unlikely that, in the foreseeable future, it will be financially, politically or practically possible to replace this form of rural government with a comprehensive and sustainable alternative.
The future role of Traditional Leadership in the development process is significant in that in addition to the recognition afforded by the Constitution and other legislation, the development law, unfolding in modern day South Africa under a new development paradigm, distinctly provides for Traditional Leaders to play a significant role in rural development and development planning at local government level in rural areas.
The role and function of the Traditional Leaders of South Africa in the rural development process unfolds as the Integrated planning process comes into operation as envisaged in section 10 of the Local Government Transition Act 209 of 1993 read with the .principles contained in the Development Facilitation Act 67 of 1995.
The development principles and the regulations prescribing the process of formulating land development objectives, provides for an inclusive process in which all role players and stakeholders are to be involved. In practice this means that communities, community organizations and institutions, as concerned role players in civil society, are also the concerned and key role players in the development planning and development process at local level. No plan and development strategy will therefore meet the prescribed legal requirements of acceptable development planning standards, if the rural communities and their leaders are not directly and actively involved.
Much of the confusion and conflict between Traditional Leadership and Customary Law Councilors on the one hand and elected Local Government Councilors on the other, arose as a result of a misunderstanding of the valuable support role which Traditional Leaders can play in the development process. The difference in the nature and scope of the tasks of elected and traditional community leaders provide a rich multi-facet basis on which a successful local governance system can be developed within the context of the current constitutional-legal framework in South Africa.
In many other countries in Africa it was only realized after repeated failures of rural development experiments, that Traditional Leaders and Traditional Authorities constitute a most valuable asset in the rural development process.
Afrikaans
Tradisionele leiers: erkenning en die pad vorentoe
Article
oai:repository.nwu.ac.za:10394/19962019-06-24T09:52:51Zcom_10394_1150com_10394_1149col_10394_1994
Mokgoro, Y
2009-06-08T13:25:16Z
2009-06-08T13:25:16Z
1998
Mokgoro, Y. 1998. Ubuntu and the law in South Africa. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 1(1): 17-32 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/1996
The new constitutional dispensation, like the idea of freedom in South Africa, is also not free of scepticism. Many a time when crime and criminal activity are rife, sceptics would lament the absence of ubuntu in society and attribute this absence to what they view as the permissiveness which is said to have been brought about by the Constitution with its entrenched Bill of Rights.
Firstly, I would like to take this opportunity and (attempt to) demonstrate the irony that the absence of the values of ubuntu in society that people often lament about and attribute to the existence of the Constitution with its demands for respect for human rights when crime becomes rife, are the very same values that the Constitution in general and the Bill of Rights in particular aim to inculcate in our society.
Secondly, against the background of the call for an African renaissance that has now become topical globally, I would like to demonstrate the potential that traditional African values of ubuntu have for influencing the development of a new South African law and jurisprudence.
The concept ubuntu, like many African concepts, is not easily definable. In an attempt to define it, the concept has generally been described as a world-view of African societies and a determining factor in the formation of perceptions which influence social conduct. It has also been described as a philosophy of life.
Much as South Africa is a multicultural society, indigenous law has not featured in the mainstream of South African jurisprudence. Without a doubt, some aspects or values of ubuntu are universally inherent to South Africa’s multi cultures.
The values of ubuntu are therefore an integral part of that value system which had been established by the Interim Constitution.
The founding values of the democracy established by this new Constitution arguably coincide with some key values of ubuntu(ism).
Ubuntu(-ism), which is central to age-old African custom and tradition however, abounds with values and ideas which have the potential of shaping not only current indigenous law institutions, but South African jurisprudence as a whole.
Ubuntu can therefore become central to a new South African jurisprudence and to the revival of sustainable African values as part of the broader process of the African renaissance.
Ubuntu and the law in South Africa
Article
oai:repository.nwu.ac.za:10394/19972019-06-24T09:52:53Zcom_10394_1150com_10394_1149col_10394_1994
Venter, F
2009-06-08T13:26:24Z
2009-06-08T13:26:24Z
1998
Venter, F. 1998. Die betekenis van die bepalings van die 1996 Grondwet: Die aanhef en hoofstuk 1. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 1(1): 32-109 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/1997
The Preamble and Chapter 1 This contribution is intended to be the first installment of a systematic interpretation of the Constitution of the Republic of South Africa 1996.
Due to the foundational and repetitive reference in the text to values, regard must constantly be had to those values when this Constitution is interpreted.
Even though the preamble does not contain positive norms, is an important interpretive source of the foundations of the Constitution. An important deviation from the preamble of the 1993 Constitution, is that the term Rechtsstaat ("constitutional state") is not employed. The introduction of this notion in South African law and its meaning in general is described. With reference to relevant dicta in recent constitutional cases, the Constitutional Principles in terms of which the 1996 Constitution was formulated and the text of the Constitution itself, it is argued that this is essentially a Rechtsstaat Constitution, but that the divergence in the range of constitutional values creates the danger of the constitutional state floundering in the waters of the social state.
Section 1, being the foundational provision, is not unamendable, but it is very tightly entrenched. The most profound values of the Constitution are set out in this compact formulation. The question is inevitably raised whether, where values have to compete for precedence in concrete circumstances, a hierarchy of values must be construed. An analysis of section 1 in the context of other relevant provisions of the Constitution reveals that human dignity is the primary nuclear value of the Constitution, supported by equality and freedom. Democracy, supremacy of the Constitution and the rule of law are structural and procedural values of the Constitution subordinate to the nuclear values and non-racialism and non-sexism are derived values.
How it is possible for a constitution to be superior law, as section 2 provides regarding the 1996 Constitution, is analysed against the background of the social contract theory. The weaknesses of this theory are exposed and it is argued that the force external to the Constitution that guarantees its primacy, is its practical legitimacy, i.e. sufficient support or acceptance of the authority of the Constitution by the citizenry. Section 2 is phrased in strong terms and means that no juridically relevant conduct, be it of a private or public law nature, can escape the test of constitutionality.
In the interpretation of section 3 the nature of citizenship and nationality is analysed with reference to international authorities and definitions of these concepts are developed. The legal implications of citizenship in the context of the Constitution are set out and the historical context of citizenship having been used in pre-constitutional times as an instrument for creating separate ethnic states, is described. The current post modern tendency in places to devalue citizenship is contrasted with the importance being attached to the notion in South Africa in the context of nation building and the employment of expatriates.
Regarding sections 4 and 5 the formal regulation of the national anthem and national flag is described. The national anthem may be amended by presidential proclamation, but changes to the national flag require an amendment of the Constitution.
Section 6, which deals with the complex language matter, protects linguistic diversity rather than the status of any languages. The Constitutional Court has determined that, although no express provision to this effect exists, individuals are entitled to use the language of their choice in their dealings and communications with the government. The state is required to promote "the indigenous languages of our people." This is interpreted to include the nine official indigenous African languages, Afrikaans, Khoi, Nama and San. In the determination of language policies Municipal Councils are required to take the language usage and preferences of the inhabitants into account and in the national and provincial at least two official languages must be used. Essential facts regarding language usage, demographic distribution, etc. must be taken into consideration for the determination of a language policy to conform to the Constitution.
Afrikaans
Die betekenis van die bepalings van die 1996 Grondwet: Die aanhef en hoofstuk 1
Article