PER: 2015 Volume 18 No 4
30 November 2015
- The life and times of a learned jackal for justice / Du Plessis, L
- Lessons for the SADC from the Indian case of Novartis AG v Union of India / Ndlovu, L
- The independence of South African judges: a constitutional and legislative perspective / Siyo, L & Mubangizi, JC
- Rethinking violence, reconciliation and reconstruction in Burundi / Ndimurwimo, LA & Mbao, MLM
- A contextual analysis of the hate speech provisions of the equality act / Marais, ME & Pretorius, JL
- Public participation and water use rights / King, P & Reddell, C
- Legislation as a critical tool in addressing social change in South Africa: lessons from Mayelane v Ngwenyama / Ozoemena, RN
- Public-private partnerships in local disaster management: a panacea to all local disaster management ILLS? / Van der Berg, A
- The constitutional mandate for social welfare - systemic differences and links between property, land rights and housing rights / Van der Walt, AJ & Viljoen, S
- The consumer protection act 68 of 2008 and procedural fairness in consumer contracts / Stoop, PN
- Judicial "translation" and contextualisation of values: rethinking the development of customary law in Mayelane / Lewis, L
- Avoiding Mazibuko: water security and constitutional rights in Southern African case law / Couzens, E
- The incorporation of double taxation agreements into South African domestic law / Du Plessis, I
- Deliberating the rule of law and constitutional supremacy from the perspective of the factual dimension of law / Malan, K
This edition of PER consists of one oratio, 13 articles and one book review dealing with a variety of themes.
The first contribution is an oratio delivered by Lourens du Plessis at a colloquium hosted by the Faculty of Law, University of the Western Cape, on 2 October 2015 to celebrate his life and work, in which he aptly refers to himself as a "learned jackal for justice".
The first of the 13 articles is by Lonias Ndlovu, who uses the 2013 Supreme Court of India case of Novartis AG v Union of India to argue for legislative reform by SADC members in the granting of patents for new versions of old medicines. Secondly, Lunga Siyo and John Mubangizi consider whether the existing constitutional and legislative mechanisms provide sufficient judicial independence to South African judges, which is fundamental to democracy. Leah Ndimurwimo and Melvin Mbao trace the root causes of Burundi's systemic armed violence and argue that despite several UN Security Council Resolutions and peace agreements aimed at national reconciliation and reconstruction, mass killings and other heinous crimes remain unaddressed. In the fourth place, Marelize Marais and Jan Pretorius present a detailed contextual analysis of the categorical prohibition of hate speech in terms of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). Phillipa King and Christine Reddell discuss the pivotal role of the public in water use rights, especially in the context of the National Water Act 36 of 1998 in the fifth article. The difficulties surrounding the tripartite scheme of statutory, constitutional and living law in a pluralistic system such as South Africa are the focus of the article by Rita Ozoemena. She uses the case of Mayelane v Ngwenyama 2013 4 SA 415 (CC) as an example to illustrate the difficulties experienced in trying to balance this scheme. Angela van der Berg critically discusses and describes from a legal perspective the potential and function of public-private partnerships (PPPs) between local government (municipalities) and the private sector in fulfilling the legally entrenched disaster management mandate of municipalities. André van der Walt and Sue-Mari Viljoen argue that there are sound theoretical and systemic reasons why it is necessary to keep in mind the differences between property, land rights and housing rights when analysing, interpreting and applying any of these rights in a specific constitutional text. The special procedural measures which must be considered in terms of the Consumer Protection Act 68 of 2008 in order to decide if a contract is procedurally fair are analysed by Philip Stoop in his article. Liz Lewis also scrutinises the judicial development of customary law in the case of Mayelane v Ngwenyama 2013 4 SA 415 (CC). She pleads for a judicial approach which take cognisance of the norms and values with reference to their particular context and audience instead of those embedded in international and western law. Water security, which is dealt with by Ed Couzens, remains a highly topical theme in a country such as South Africa. He explores ways to circumvent the effects of the Constitutional Court in Mazibuko v City of Johannesburg 2010 4 SA 1 (CC) with regard to the allocation of water to the poor. Izelle du Plessis discusses some of the existing opinions regarding the incorporation of double taxation agreements into the domestic law of South Africa. Last, but not least, Koos Malan deliberates on the rule of law and constitutional supremacy and comes to the conclusion that they are, from the perspective of the factual dimension of the law, more susceptible to the volatility of unpredictable changes and instability than the doctrine of the rule of law and constitutional supremacy purport them to be.
In the last contribution to this edition, Robbie Robinson reviews the book "International Law and Child Soldiers" written by Gus Waschefort and published by Hart Publishing (Oxford) in 2015. He is of the opinion that the book is a sine qua non for studies of children in international law.
Editor: Professor Christa Rautenbach / Edition Editor: Doctor Hein Lubbe
Deliberating the rule of law and constitutional supremacy from the perspective of the factual dimension of law (2015)Positive law is two-dimensional: it has a justice (or ideal) dimension (and requisite) and a factual (or real) dimension (and requisite). Both are essential. Hence positive law lapses when either of the two is absent. In ...
(2015)There are different opinions as to the process whereby double taxation agreements (DTAs) are incorporated into South African law. This contribution aims to discuss some of the existing opinions and to offer a further ...
(2015)The 2009 judgment by the Constitutional Court of South Africa in Mazibuko v City of Johannesburg is seen by many as a watershed in the interpretation of the fundamental constitutional right of access to water. The ...
Judicial "translation" and contextualisation of values: rethinking the development of customary law in Mayelane (2015)The relevance of Mayelane v Ngwenyama (2013 4 SA 415 (CC)) has not been exhausted. Particularly the constitutional mandate undertaken by the Constitutional Court to "develop" customary law deserves closer scrutiny. In ...
(2015)In general, the concept "contractual fairness" can be narrowed down, described and analysed with reference to the two interdependent types of fairness – substantive and procedural fairness. Measures aimed at procedural ...
The constitutional mandate for social welfare – systemic differences and links between property, land rights and housing rights (2015)Our purpose in this article is to argue that, as far as the constitutional promotion and protection of social welfare is concerned, there are significant theoretical and systemic differences between property, land rights ...
Public-private partnerships in local disaster management: a panacea to all local disaster management ILLS? (2015)It is anticipated that the occurrence and intensity of disasters will increase globally and in South Africa where typical disasters include droughts, floods, extreme hailstorms, gales, fires and earthquakes, as well as ...
Legislation as a critical tool in addressing social change in South Africa: lessons from Mayelane v Ngwenyama (2015)Several changes have occurred in South Africa within the customary law system to ensure gender justice, including the enactment of the Recognition of Customary Marriages Act 120 of 1998. The purpose of the Recognition Act ...
(2015)The conservation and protection of water resources is paramount in the safeguarding of environmental rights and the attainment of sustainable development in South Africa. Although the National Water Act 36 of 1998 (the ...
(2015)The article presents a detailed contextual analysis of the categorical prohibition of hate speech in terms of section 10(1) of the Equality Act. It is argued that this provision is not primarily intended to describe and ...
(2015)Armed violence and genocide are among the on-going problems that are still facing contemporary Africa and the world. In the aftermath of the outrages, devastation and appalling carnage of the Second World War, member states ...
(2015)Judicial independence is fundamental to democracy. It is in that context that this paper considers whether the existing constitutional and legislative mechanisms provide sufficient judicial independence to South African ...
(2015)In the pharmaceutical context, many Southern African Development Community (SADC) members grant patents on drugs without substantially reviewing applications first, thus routinely granting patents for new versions of old ...